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PETITIONER: GOLLA PULLANNA & ANR

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT:       13/08/1996

BENCH: NANAVATI G.T. (J) BENCH: NANAVATI G.T. (J) RAY, G.N. (J)

CITATION:  1996 SCALE  (5)788

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N I NANAVATI J.      This appeal  by Original  Accused Nos.  9 and 11 arises out of  the judgment  and order passed by the Andhra Pradesh High Court in Criminal Appeal No. 756 of 1981 confirming the order of  conviction and sentence passed by the Court of the Sessions Judge, Cuddapah in Sessions Case No. 45 of 1980.      On 8.9.1979  at about  4.30 P.M.  Sivarami Reddi  alias Sivanna of  Village Kondapuram, along with his uncle Bodella Yellareddi  (P.W.1)   and  his  grandson  Jayachandra  Reddy (P.W.2) had gone to his lime garden for watering lime trees. At about  sunset time  they started  returning and when they had come  near the  bus stand, Accused No.1 along with other 11 accused  assaulted Sivanna with hunting sickles, daggers, spears and hatchets, because of the enmity between the party of Sivanna  and the  party of  Accused No.1. Sivanna died on the spot.  Jayachandra Reddy remained near the dead body and Yellareddy (P.W.1)  went to  the police  station. He  gave a complaint (Exh. P-1) in writing and on that basis an offence was registered. All the 12 accused were chargesheeted by the police and  they came  to be tried in the Court of Sessions, Cuddapah for the offences punishable under Sections 148, 302 read with  149  I.P.C.  and  in  the  alternative,  for  the offences punishable  under Section  302 read with Section 34 I.P.C. During  the pendency  of the  trial Accused No.2 died and the trial proceeded against the remaining 11 accused.      In order  to prove  its  case  the  prosecution  mainly relied upon  the  evidence  of  three  eye-witnesses,namely, P.W.1 Bodella  Yellareddy, P.W.2 Jayachandra Reddy and P.W.3 Shaik  Bashu.   The  learned  Sessions  Judge  believed  the presence of  the  three  eye-witnesses  near  the  scene  of offence and held that their evidence deserved to be believed "to the  extent of  their  seeing  the  attack  against  the deceased with  deadly  weapons  like  spears,  hatchets  and hunting sickles."  However, in  view of the corrections made in the names of Accused Nos.5 and 7 in the written complaint

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(Exh.  P-1)   the  learned   Sessions  Judge  doubted  their participation in  the  offence  and  acquitted  them  giving benefit of doubt. As it was found that Accused Nos. 3 and 12 were of a different village and had no motive to participate in the  attack they  were also  given benefit  of doubt. The learned Sessions  Judge convicted  the rest  of the  accused that is Accused Nos.1,4,6 and 8 to 11 under Sections 148 and 302 read  with 149  I.P.C. and  sentenced  them  to  undergo imprisonment for  life. All those 7 accused challenged their conviction by filing an appeal in the High Court. During the pendency of the appeal Accused No.1 died. The High Court did not agree  with the finding recorded by the trial court that there were  interpolations in the written complaint (Exh. P- 1) and held that Accused Nos.5 and 7 were wrongly acquitted. The High Court also rejected the contention raised on behalf of the  defence that  there was  delay in  lodging the first information  report   and  that   it  was   recorded   after deliberation and consultations. The High Court believed that P.W.1,  P.W.2  and  P.W.3  were  the  eye-witnesses  to  the incident but observed that as they were interested witnesses their evidence  was required to be scrutinized with care and caution. After  carefully scrutinizing  their  evidence  the High Court  held  that  it  did  not  suffer  from  material discrepancies or  variations as contended by the defence. As regards Accused  Nos.4,6,8 and  10 who according to the eye- witnesses had  given spear  blows to  the deceased  the High Court held  that the  evidence of  the eye-witnesses was not consistent with respect to the part played by them, and also with the  medical evidence  and, therefore, they deserved to be given  benefit of  doubt. Believing  the presence  of the other accused  except Accused  Nos. 4,5,8  and 10,  the High Court held  that even  though the acquittal of the acquitted accused could  not be  set aside  in absence of an acquittal appeal against them, the conviction of Accused Nos. 9 and 11 under section  302 read  with Section  149 could  be upheld. Thus, the  conviction of  the appellants  and the  sentences awarded to them were confirmed by the High Court and to that extent the appeal was dismissed.      The learned  counsel  for  the  appellant  raised  four contentions  before   us.  His  first  contention  was  that admittedly, there  was  enmity  between  the  party  of  the deceased and the party of the accused and as the three eye - witnesses belonged  to  the  party  of  the  deceased  their evidence should  not have  been accepted without independent corroboration. The  second contention was that correction of names of  Accused Nos.  5,7 and  11 in the written complaint (Exh.P-1) clearly  indicates that  there were  deliberations after the  complaint was  given  to  the  police  and  those accused have  been falsely implicated subsequently. The next contention was  that in their evidence the eye-witnesses had improved upon  their versions before the police and in order to bring  their testimony  in conformity  with  the  medical evidence they  had stated  before the  court that blows with hatchets were  also given  to the  deceased. It  was  lastly contended that  Accused Nos.  5 and  7 were acquitted by the trial court  and Accused  Nos.  4,6,8  and  10  having  been acquitted by the High Court the conviction of the appellants under Section  148 and  Section 302  read with  Section  149 could not  have been  upheld by  the High Court. It was also submitted that  even though  the High Court has reversed the finding with  respect to  the involvement  of Accused Nos. 5 and 7,  in view of their acquittal, the acts alleged to have been committed  by them  cannot be  taken into consideration either for  inferring the  common  object  of  the  unlawful assembly or for holding the appellants vicariously liable.

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    The fact that there was enmity between the two factions was  not   in  dispute   and  both  the  courts  below  have appreciated the  evidence of  the eye-witnesses bearing that aspect in  mind. The  High Court  has rightly  observed that they being  interested witnesses their evidence was required to be  scrutinized with  care and caution. The submission of the learned  counsel that their evidence could not have been relied upon  in absence  of independent corroboration cannot be accepted  as there  is no  such requirement  of law. Even after close  scrutiny both the courts thought it fit to rely upon  their  evidence  and  it  cannot  be  said  that  they committed any eeror in doing so.      There is  no substance  in the  second contention also. The corrections  which we  find in  the complaint  are  with respect to  the names of Accused Nos.5 and 7 and the name of the father  of Accused No.11. Initially, the name of Accused No.5 was  mentioned as  Nagireddi’s son but it was corrected to read Nagireddi’s son Obula Reddy. Accused No.7’s name was written as  Chinna Narayana  Reddy but  it was  corrected to read as Chinna Venkata-Narayanareddi. The name of the father of Accused  No.11 was  written as  Bali  Reddi  but  it  was corrected and Obula Reddi was written.      P.W.1 has  explained that  when the  complaint was read over to  him he  realised that he had not given the names of Accused Nos. 5,7 and the name of the father of Accused No.11 correctly.  Initially  he  had  described  Accused  No.5  as Nagireddi’s son  and later  he became  more exact by stating his name  as Bodela Nagireddi’s son Obul Reddy. He corrected the name  of Accused  No.7  from  Bodela  Subbarayudu’s  son Chinna Narayana  Reddy to  Bodela Subbarayudu’s  son  Chinna Venkata Narayana  Reddy. He  had wongly  mentioned  father’s name of  Accused  No.11  as  Kabugota  Bali  Reddi.  As  his father’s correct  name is  Obula Reddi  he struck  off  Bali Reddi and  wrote Obula  Reddi. These  corrections cannot  be regarded as  improvements suggestive  of  deliberations  and false involvement. The incident in this case had taken place at about  6.30 P.M.  The offence was registered at 7.00 P.M. on the  basis of  the written  complaint given  by P.W.1. We find from  the first  information report  that the  distance between the  place where  the offence  took place  and-- the police station  was half  a kilometer.  Thus; within  a very short time  the written  complaint was prepared by P.W.1 and handed over to the officer incharge of the Kondapuram Police Station and  immediately thereafter on the basis of the said complaint the first information report was prepared. Neither the time  interval nor  the nature  of corrections  indicate that the  corrections were  made  with  a  view  to  falsely implicate Accused Nos.5,7 and 11. So far as Accused No.11 is concerned it was not even suggested that there was any other person in  Village Muthucumarri by name "Sambasiva Reddy son of Kabugota  Balireddy".  Therefore,  no  inference  can  be drawn’ from  the said  corrections that  they were made mala fide with a view to falsely involve those accused.      It was  next contended that the eye-witnesses P.W.1 and P.W.2 have deliberately made a material improvement in their evidence as regards the weapons carried by Accused Nos.5 and 11 so  as to  bring their  evidence in line with the medical evidence and, therefore, their evidence should not have been believed without  independent corroboration  at  least  with respect to  Accused Nos.5  and 11.  In his written complaint P.W.1 had stated that the accused had assaulted Sivanna with sickles, spears  and axes. In the inquest report (Exh.P5) it was mentioned  that the deceased died due to injuries caused to him  with hunting sickles, daggers and spears. But in his evidence P.W.1 stated that the injuries to the deceased were

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caused with  hunting sickles,  daggers, hatchets and spears. In  his  cross-examination  he  admitted  that  he  had  not referred to  hatchets in his complaint and that he knows the difference between  an axe  and a  hatchet. Thus  there is a discrepancy between  his evidence  and what he stated before the police  as regards  the weapons with which Accused Nos.5 and 11  had caused  injuries to  the deceased.  However,  it would not  be proper to infer therefrom that the witness was deliberately raking  an improvement with a view to bring his evidence in  line with  the medical  evidence. P.W.1 was the first witness  to be  examined in  the case  and  there  was nothing either  in the  post mortem  notes or  in any  other material on  record to  show that  the injuries found on the deceased could not have been caused by an axe. Therefore, it cannot be  stated that  he  was  deliberately  changing  the weapons carried  by Accused Nos.5 and 11 with a view to make his evidence  consistent with  the medical  evidence. Doctor who performed  the post  mortem examination was examined two days after  the evidence  of P.W.1 and P.W.2 was recorded. A question was put to him in his cross-examination that if the victim was  lying on  the ground  immobile and if a blow was given whether  any of  the injuries  noticed on the deceased could have been caused by such a blow. The doctor replied in the negative.  It was  not positively put to the doctor that none of  the injuries  noticed on the person of the deceased was possible  by a  hatchet blow. It was also not put to him that none  of the  injuries noticed  by him  could have been caused  by   an  axe.   We,  therefore,   do  not  find  any inconsistency between  the medical evidence and the evidence of P.W.1.  A hatchet  is not very different from an axe, the difference being  in size  only. Therefore,  the discrepancy appearing in  the evidence  of P.W.1 is not of such a nature as would  create any  doubt regarding  participation in  the attack by Accused Nos.5 and 11. Challenge to the evidence of P.W.2 on  the same ground is really misconceived. An attempt was made  by the  defence in  the cross-examination  of this witness to  establish that  before the  police  he  had  not stated that  Accused Nos.5  and 11  had hatchets.  he denied that suggestion  and maintained that he had so stated before the police.  P.W.9, the investigating officer, in his cross- examination stated  that such  a statement  was made  by the witness before  him. Thus  there was no inconsistency at all between his  earlier version  and  the  version  before  the court. P.W.3 stated generally that the accused had assaulted the deceased  with hunting  sickles,  spears,  hatchets  and daggers. His  evidence as  regards  the  weapon  carried  by Accused No.5 is in consistent with the evidence of other two eye-witnesses inasmuch  as he stated that Accused No.5 had a spear at that time. This witness had seen the assault from a little distance and, therefore, he appears to have committed a mistake  while describing  the weapon  carried by  Accused No.5. As  the assault  was sudden  and it had taken place at the sunset  time much  importance cannot  be given  to  such discrepancies and  it would  not be  proper  to  reject  the evidence of the eye-witnesses because of such discrepancies.      Lastly,  it  was  contended  by  the  learned  counsel, relying upon  the decisions  of this Court in Krishna Govind Patil vs.  State of  Maarashtra 1964  (1) SCR  678 and Maina Singh vs.  State of  Rajasthan 1976 (3) SCR 651, that as the Accused Nos.5  and 7  were acquitted  by the trial court and Accused Nos.4,6,8  and 10  came to  be acquitted by the High Court, the  appellants could  not have  been convicted under Section 302 read with Section 149 I.P.C.      In Krishna Govind Patil’s case (supra) it has been held that where more than one person are charged with substantive

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offence read  with Section  34 and  if others  are acquitted conviction  of  one  under  substantive  offence  read  with Section 34  cannot be sustained because before a court could convict a  person under Section 302 read with Section 34, it should come  to a  definite conclusion  that the said person had a prior concert with one or more other persons, named or unnamed, for  committing the  said offence.  When the  other accused  were  acquitted  either  on  the  ground  that  the evidence was not acceptable or by giving benefit of doubt to them, the  result in  law would  be the  same; it would mean that they  did not take part in the offence. If they did not act conjointly  with the  remaining accused,  the  remaining accused could  not have  acted conjointly  with them. In the absence of  any evidence  to indicate that the persons other than the  remaining accused participated in the offence, his conviction under  Section 302 read with Section 34 cannot be sustained.      In the  case of Maina Singh vs. State of Rajasthan 1976 ’(3) SCR 651 this Court has. held that it is not permissible to invoke  Section 149  or Section 34 I.P.C. in a case where the accused  is charged  with commission  of an offence only with named  persons  as  co-accused  and  others  have  been acquitted. It  was submitted  that when  other  accused  are acquitted by giving them benefit of doubt then the remaining accused can  be convicted  only for  his own act and not for the acts committed by others.      Both these  cases were  considered  by  this  Court  in Brathi alias  Sukhdev Singh vs. State of Punjab 1991 (1) SCC 519 and  distinguished on  the ground  that "in none of them the appellate  court is  shown to  have disagreed  with  the trial court’s  conclusion on  facts, and the appellate court has proceeded  on the  footing that  the order  of acquittal recorded is correct."      This Court  after referring to its earlier decisions in Marachalil Pakku vs. State of Madras AIR 1954 SC 648, Sunder Singh vs.  State of Punjab AIR 1962 SC 1211 and Harshadsingh vs. State  of Gujarat  at 1976  (4) SCC  640 has  held  that "before Sections  34, 149 or 120-B can be applied, the court must find  with certainty  that  there  were  at  least  two persons sharing the common intention or five persons sharing the common object or two persons entering into an agreement. The principle  of vicarious  liability does  not depend upon the necessity  to convict  a requisite number of persons; it depends upon  proof of  facts beyond  reasonable doubt which makes such a principle applicable." This Court has also held that "in  the matter  of appreciation  of the  evidence  the powers of  the appellate  court are  as wide  as that of the trial court.  It has full power to review the whole evidence and  all   relevant  circumstances  to  arrive  at  its  own conclusion about the guilt or innocence of the accused. When several persons  are alleged to have committed an offence in furtherance of  the common  intention and all except one are acquitted, it  is open  to the appellate court to indirectly or incidentally  find out  on a  reappraisal of the evidence that  some   of  the   accused  persons  have  been  wrongly acquitted,  although   it  could  not  interfere  with  such acquittal  in   the  absence  of  an  appeal  by  the  State Government. The  effect of  such a finding is not tc reverse order of  acquittal into  one of  conviction  or  visit  the acquitted person  with criminal  liability. The  finding  is relevant only  in invoking  against the convicted person his constructive criminality. Where the evidence examined by the appellate court  unmistakably proves  that the appellant was guilty under  Section 34  having shared  a comnon  intention with the  other accused  who were  acquitted  and  that  the

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acquittal was bad, there is nothing to prevent the appellate court from  expressing that  view and giving the finding and determining the  guilt of  the appellant  before it  on  the basis of that finding.      In this case, the High Court has recorded a categorical finding, after  reappreciating the  evidence,  that  Accused Nos. 5  and  7 were wongly acquitted by the learned Sessions Judge.  Therefore,  even  after  the  acquittal  of  Accused Nos.4,6 8  and 10 the High Court was justified in proceeding on the  basis that  there were more than five persons out of the named accused who had participated in the assault on the deceased and confirming the conviction o-f Accused Nos.9 and 11 Under Section 302 read with Section 149 I.P.C.      As  we  do  not  find  any  substance  in  any  of  the contentions raised  on behalf  of the appellants this appeal is dismissed.  The appellants were ordered to be released on bail during the pendency of this appeal. Therefore, they are ordered to  surrender immediately to serve out the remaining sentence.