REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 25 of 2007

Chakali Maddilety & Ors. …Appellants

Versus

State of Andhra Pradesh  …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and  

order  of  the  High  Court  of  Andhra  Pradesh  at  Hyderabad,  

dated 9.3.2004,  by which it  has dismissed Criminal  Appeal  

No.  289  of  2002,  affirming  the  judgment  and  order  dated  

12.2.2002 passed by the Sessions Court, Kurnool in Sessions  

Case No. 830/1999, convicting the appellants under Sections  

302 and 148 of the Indian Penal Code, 1860 (hereinafter called  

as “IPC”) and sentencing them to undergo life imprisonment  

and one year R.I. respectively.  

2. Facts and circumstances  giving rise  to this  appeal  are  

that  accused  (A1  to  A7)  and Harijana  Ayyanna (hereinafter  

called as “deceased”) were residents of village G. Singavaram.  

On 8.2.1999 at about 7.30 PM, the deceased along with his  

wife  Harijana  Ayyamma  (PW.2)  and  son,  Harijana  

Ramakrishna  (PW.1)  went  to  the  clinic  of  Dr.  Ramana  for  

treatment of Harijana Ayyamma (PW.2) and while they were  

coming back and reached near the house of Anjaneya Goud at  

about 8.00 p.m., accused (A1 to A7) suddenly appeared on the  

spot.  A1, A3, A5, A6 and A7 were armed with daggers and A2  

was armed with a stick. They surrounded the deceased and  

his  son  Harijana  Ramakrishna  (PW.1).  A1  abused  the  

deceased  and  stabbed  on  his  back  with  a  dagger  causing  

injuries and then A2 to A7 carried the deceased towards the  

mosque and threw him on the road near it. A1, A3, A5, A6 and  

A7 stabbed the deceased on his chest, stomach and back with  

daggers.  A2 beat the deceased with a stick and A4 caused  

injury on his head with a stone.  Harijana Ramakrishna (PW.1)  

and Harijana Ayyamma (PW.2) made hue and cry as a result of  

which Harijana Sekhar (PW.3), P. Muniswamy (PW.4) and A.  

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Samuel  (PW.5)  reached  the  place  of  occurrence  and all  the  

accused fled away from there.  PWs. 1 to 5 took the deceased  

in a vehicle to the Government Hospital, Kurnool, however, he  

succumbed  to  the  injuries  at  about  9.30  p.m.   Harijana  

Ramakrishna (PW.1), son of the deceased filed the F.I.R. (Ext.  

P-1) in Kurnool Taluk Police station and Crime No.16 of 1999  

was  registered.  T.Naganna  (PW.9),  the  Investigating  Officer  

drew up the panchanama of the scene of offence and held  an  

inquest  on  the  dead  body  at  the  hospital  in  presence  of  

witnesses  Molakapogu  Daveedu  (PW.6)  and  Molakapogu  

Harijana Pakkiranna (PW.7) and the dead body was sent for  

post mortem.  In the post mortem report,  Dr. L.C. Obulesu  

(PW.10)  found 13  ante-mortem injuries  on  the  body  of  the  

deceased.  After  completing  the  investigation,  T.  Naganna  

(PW.9) filed the charge sheet against the accused persons and  

they were put to trial.  

3. The learned Sessions Judge, Kurnool, after conclusion of  

the  trial,  found  A1,  A3,  A5,  A6  and  A7  guilty  of  offences  

punishable  under  Sections  148  and  302  IPC.   They  were  

sentenced to life imprisonment and a fine of Rs.1,000/- each  

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for an offence punishable under Section 302 IPC and one year  

RI and fine of Rs.500/- each for an offence punishable under  

Section 148 IPC. However, both the sentences were directed to  

run concurrently.  The Court acquitted A2 and A4 of all the  

charges.     

4. Being aggrieved, the appellants preferred Criminal Appeal  

No.289  of  2002  before  the  High  Court,  which  has  been  

dismissed vide impugned judgment and order dated 9.3.2004.  

Hence, this appeal.        

5. Shri  R.  Sundaravaradan,  learned  senior  counsel  

appearing for the appellants, has submitted that in view of the  

evidence  of  alleged  eye-witnesses,  namely,  Harijana  

Ramakrishna  (PW.1)  and  Harijana  Ayyamma  (PW.2),  two  

accused  namely,  Chakali  Krishna  (A2)  and  Chakali  

Sreenivasulu  (A4)  had  been  acquitted  by  the  Trial  Court.  

Harijana Sekhar (PW.3) and Muniswamy (PW.4) and A. Samuel  

(PW.5) had been disbelieved by the Trial Court. Molakapogu  

Daveedu (PW.6) and Molakapogu Harijana Pakkiranna (PW.7)  

turned hostile and did not support the prosecution.  In fact,  

A2 and A4 had caused fatal injury No.1 on the head.  In such  

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a fact-situation there was no occasion for the courts below to  

convict the appellants. More so, it is nobody’s case that all the  

accused  persons  came  with  deadly  weapons.  Therefore,  the  

question of  application of  the provisions of  Section 148 IPC  

could not arise.   The entire  incident occurred in two parts.  

First, the deceased was hit near the house of Anjaneya Goud  

and a second time,  when as alleged,  the appellants  caused  

serious injuries after taking the deceased in injured condition  

near  the  mosque.  In  case  there  is  no  evidence  that  all  the  

appellants were armed with weapons at the time of the first  

part of the incident,  in absence of any evidence  that they had  

been supplied the arms by somebody else in between, question  

of causing serious injuries in the second part stands falsified.  

Had the incident been as alleged by the prosecution, at least,  

Harijana Ramakrishna (PW.1), son of the deceased, as he was  

24 years of age, could have intervened and made attempt to  

protect his father. The incident occurred in a residential area,  

no independent witness was examined.  All these factors have  

not been considered by the courts below in correct perspective.  

Therefore, the appeal deserves to be allowed.     

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6. On  the  contrary,  Shri  Anoop  G.  Choudhari,  learned  

senior counsel appearing for the State, has submitted that two  

courts  have  recorded  concurrent  findings  of  fact.  The  Trial  

Court had an opportunity to examine the demeanour of the  

witnesses and assess their credibility.  The Trial Court,  after  

assessing the evidence on record, reached the conclusion that  

A2 and A4 had falsely been enroped in the crime. Therefore,  

they  had  been  acquitted.  However,  on  the  basis  of  the  

depositions  of  Harijana  Ramakrishna  (PW.1)  and  Harijana  

Ayyamma (PW.2) the appellants have been convicted and the  

High Court has affirmed their conviction.  The findings of fact  

as  recorded  by  the  courts  below  cannot  be  held  to  be  so  

perverse  as  to  warrant  interference  by  this  Court.   Had  

Harijana Ramakrishna (PW.1), the son of the deceased tried to  

intervene and protect the deceased, there was a possibility of  

receiving grievous injuries or he could have also faced death  

at  the  hands  of  the  appellants.  The  FIR  has  been  lodged  

promptly.  Appellants  were  known to  the  complainant.  They  

had been named in the FIR.  In such a fact-situation, appeal  

lacks merit and is liable to be dismissed.  

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7. We  have  considered  the  rival  submissions  made  by  

learned counsel for the parties and perused the record.    

8. Admittedly, FIR was lodged promptly within a period of 2  

½ hours, though, the distance between the place of occurrence  

and the police station was about 15 kms.  All the appellants  

had  been named  therein.   As  per  the  post  mortem  report,  

following  13  ante-mortem  injuries  were  found  on  the  dead  

body of the deceased:-

“1. Lacerated wound on right side head,  back  part  of  parietal  area.   Obliquely  placed  7 x  1  ½ cms x  scalp  layer  deep  with a fracture of left parietal bone 13 cms  in width, contusion of brain with fracture  of  base  of  skull  in  mid  cranial  fossa 12  cms in length.   

2. Incised wound on right eye-brow 4 x  1 cms x bone deep.   

3. Stab  wound  on  front  of  right  side  chest right nipple.  Oblique, 4 ½ x 1 ½ cms  x chest cavity deep cutting the 4th rib.    4. Stab wound on left side chest below  left nipple obliquely 4 ½ x 1 ½ cms x chest   cavity depth cutting ribs 4th and 5th.    

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5. Stab  wound on front of  right  upper  abdomen  outer  part  4  x  1  ½  cms  x  abdomen deep, cutting the intestines.   

6. Stab  wound  on  front  of  left  side  abdomen, near the midline, oblique, 4 ½ x  1 ½ cms x abdomen cavity deep, cutting  the liver.   

7. Incised wound on back of left upper  are near the shoulder 4 x 1 ½ cms x 3 cms  muscle deep.   

8. Abrasion with contusion on the back  of left elbow and fore-arm 6 x 4 cms red in  colour.   

9. Incised would on outer part of left leg  near the knee 4 x 1 ½ cms x bone deep.   

10. A stab wound on upper part of right   buttock 4 ½ x 1 ½ x 5 cms muscle deep.    11. A stab  wound on the back of chest   upper part,  near the spine upper thoracic   4 ½ x 1 ½ cms x vertebra deep.  

12. Stab  injuries  4  in  number  on  the  back of middle of chest 2 on right side of   thoracic spine, 2 on left side measuring  4   x 1½ cms, 4 ½ x 1 cms, 4 ½ x 1 ½ cms, 4  ½ x 1 cms chest cavity deep.   

13. Stab wound on back left  side chest  lower and outer part obliquely 4 ½ x 1 ½  cms x chest cavity the ribs and injured the   left side lung tissues.   

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As per the medical evidence the cause of death was shock  

and hemorrhage due to multiple injuries.   

9. The  Trial  Court,  after  appreciating  the  evidence  on  

record, came to the conclusion that the FIR had been lodged  

most promptly and all the appellants were named therein. An  

earlier  incident  had  occurred  on  4.11.1998  between  the  

deceased  and  A1 & A5,  thus  the  deceased  was  inimical  to  

them.   Harijana  Sekhar  (PW.3),  Muniswamy  (PW.4)  and  

A.Samuel (PW.5) came to the spot after hearing the hue and  

cry  made  by  Harijana  Ramakrishna  (PW.1)  and  Harijana  

Ayyamma (PW.2), thus they could not be eye-witnesses of the  

actual incident.  Therefore, the Trial Court brushed aside their  

depositions.   Molakapogu  Daveedu  (PW.6)  and  Molakapogu  

Harijana  Pakkiranna  (PW.7),  who  were  the  witnesses  of  

inquest on the dead body, were declared hostile and, therefore,  

they did not support the case of the prosecution.  The Trial  

Court  came to the conclusion that  in spite  of  the  fact  that  

Harijana Ramakrishna (PW.1) and Harijana Ayyamma (PW.2)  

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were family members of the deceased and a dispute had arisen  

on  4.11.1998,  few  days  before  the  incident,  between  the  

deceased  and  Chakali  Maddilety  (A1)  and  Chakali  

Lakshmanna (A5), though there may be a possibility to enrope  

some persons falsely, the question of leaving the real culprits  

for causing the death of the deceased out of the FIR could not  

arise.  All the persons involved in the case were from the same  

village.  There was no contradiction in the version in the FIR  

and  the  statement  under  Section  161  of  Code  of  Criminal  

Procedure, 1973,  of PW.1 and PW.2 and the case also stood  

corroborated  by  the  medical  evidence.   Therefore,  the  Trial  

Court  acquitted  Chakali  Krishna  (A2)  and  Chakali  

Sreenivasulu  (A4)  in  view  of  the  fact  that  there  was  no  

evidence  of  the  deceased being  hit  by  stone and stick.  The  

depositions  of  close  relatives  cannot  be  discarded  merely  

because  they  are  relatives,  but  their  evidence  has  to  be  

considered with due care and caution.   In a case like  this,  

independent witnesses may not come forward to depose,  as  

out  of  fear,  people  prefer  to  run  away  from  the  place  of  

occurrence and avoid witnessing the crime, but that does not  

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mean that the case can be discarded only on the ground of  

non-examination of independent witnesses of the locality.   

10. The Trial Court considered the application of Section 148  

IPC elaborately and held:  

“With regard to participation of A1, A3, A5  to A7, PW1, PW2 who are the eye witness  who  actually  witnessed  the  incident  specifically stated that A1 and A3, A5 to   A7, formed into an unlawful  assembly to  commit  rioting  and A1 stabbed Ayyanna  on his back with a dagger at first place of   occurrence itself.  The medical evidence of   PW10  who  conducted  P.M.  examination   over  the  dead  body  of  deceased  also  shows that he found an incised wound on  the  back  of  left  upper  arm  near  the  shoulder 4 x 1 ½ cms muscle deep in size  under injury No. 1.  So, the injury No. 7  mentioned  in  Ex.  P14  P.M.report  is  the   injury said to have caused on the back of  deceased by A1 with  dagger.  Therefore,  the  medical  evidence  is  totally  corroborating  the  ocular  testimony  PW1,  PW2 with regard to stab injury caused on  the back of deceased by A1 in front of the  house  of  Ediga  Anjhaneyulu  Goud.   In   Ex.P1  complaint  also,  PW1/complainant  specifically  mentioned,  that  A1  stabbed  the  deceased  on  back  with  a  dagger   pushing him aside and his mother (PW2)  aside.  Therefore, basing on the consistent  evidence  of  PW1,  PW2  coupled  with   medical evidence of PW10 and Ex. P14 it   

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can safely be held that A1, A3, A5 to A7  formed  into  an  unlawful  assembly  to   commit  rioting  against  Ayyanna,  in  prosecution of common object, A1 stabbed  Ayyanna (deceased) thereby A1, A3, A5 to  A7  committed  the  offence  punishable   under Sec. 148 of IPC.  Accordingly, they  are liable to be convicted.    Regarding  2nd incident  of  murderous  assault against Ayyanna (deceased) PW1,  PW2  specifically  deposed  that  all  the  accused  stabbed  Ayyanna  (deceased)   indiscriminately.  In  such case, it is very  difficult to attribute any specific overt acts   against  any  of  the  accused.   The  overt   acts theory cannot be applied, when more  number  of  persons  stabbed  a  single  individual  indiscriminately.   The medical   evidence under Ex.P14 and oral evidence  of PW10 also lending support to the ocular  testimony of PW1, PW2.  The P.M. Doctor  PW10 found as many as 13 injuries, out  of the said injuries, injury No. 2 to 7 and 9  to  13  are  stab  and  incised  wound  with   similar  measurements.  Therefore, all  the  above  injuries  2 to  7 and 9 to  13 could  have  been  caused  with  same  type  of  weapon  and  said  fact  was  spoken  by  PW10 in his evidence.”  

Thus, the case to the extent that the appellants stabbed the  

deceased with dagger and knife stood proved.  

11. The High Court considered  the issue of application of  

Section 148 IPC and observed:  

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“The  first  issue  that  arises  for  consideration  is  whether the offence under Section 148 IPC is made  out against the accused. The evidence of PWs. 1 and  2 clearly establishes that the accused, who were in   inimical terms with the deceased and PW.1, were all   at  the  scene on the  night of  the  incident and they  have  virtually  encircled  them  duly  armed  with   daggers and stick. It  is also the evidence of PWs 1   and  2  in  categorical  terms  that  the  accused  even  gave  blow  with  the  daggers  on  the  back  of  the  deceased  and  thereafter  they  lifted  the  deceased  bodily and took him near the mosque by which time   on account of the cries of PWs. 1 and 2, PWs. 3 to 5  came  at  the  scene.  Under  those  circumstances  the  finding  of  the  learned  Ist  Additional  District  and  Sessions  Judge,  Kurnool  that  the  offence  under  Section  148 IPC established,  cannot be found fault   with.”

12. We have  been taken through the  evidence  of  Harijana  

Ramakrishna (PW.1) and Harijana Ayyamma (PW.2) and they  

had been consistent that the accused were armed with daggers  

and  knives.  They  encircled  the  deceased  and  Harijana  

Ramakrishna  (PW.1)  and  caused  injuries  to  the  deceased.  

Their  version  stands  fully  corroborated  by  the  medical  

evidence. Thus, we do not find any cogent reason to interfere  

with  the  concurrent  findings  of  fact  on  this  issue.   The  

Submission  made  by  Shri  Sundaravaradan,  learned  senior  

counsel, has no merit and thus not worth acceptance.     

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On other issues both the courts below have considered  

the submissions made by the defence and rejected them.  We  

are in full agreement with the said findings of fact.

13. In view of the above,  we are of the considered opinion  

that  the  present  case  does  not  warrant  any  review  of  the  

judgments and orders of the courts below. The appeal lacks  

merit and is accordingly dismissed.   

…………………………….J. (P. SATHASIVAM)

……………………..……..J. New Delhi, (Dr. B.S. CHAUHAN) August 16, 2010

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