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CASE NO.: Appeal (crl.)  519-521 of 2003 Appeal (crl.)  672-674 of 2003

PETITIONER: Goura Venkata Reddy RESPONDENT: State of Andhra Pradesh                                  

DATE OF JUDGMENT: 19/11/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT,J

       Different political ideologies may be followed in a democratic set  up; that is but natural. But when differences become physical and lead  to loss of life by violent acts it reflected sadly on the political  maturity of people and the citizens at large. The present case, as the  prosecution version shows, is one of those large number of instances  where physical violence has led to loss of lives of two persons.   

The appellants who faced trial along with 11 others and two  deceased persons, and the prosecution witnesses belong to different  political parties.  The difference between them is said to be long- standing on account of political rivalry, and it reached its crescendo  on 18th October, 1995 and 19th October, 1995. On the first of the dates,  relative of one political leader was allegedly kidnapped and his dead  body was found later on the next day i.e. 19th October, 1995 to which the  present case relates. The two deceased persons, namely, Ambi Reddy and  Chinna Ramasubbaiah (hereinafter referred to as D-1 and D-2) along with  PWs 1 to 4 and two others were traveling by four motorcycle with two  occupants in each.  As the prosecution version shows the 20 persons way  laid them. D-1 and D-2 were dragged out of the motorcycle and at the  instigation of A-1 Goura Venkata Reddy and one M. Venkateswara Reddy  others picked up stones from the way side and threw them causing  grievous injuries.  After causing injuries, assailants-accused persons  went away.  The occurrence took place at 11.45 a.m.  The accused persons  were traveling in a Jeep and two lorries. The injured persons were taken  to the hospital; one of them (D-2) was declared dead at the first  hospital where he was taken.  The doctor, however, advised the relative  to take the other deceased D-1 to another hospital for better treatment.  At the said hospital in spite of the best efforts his life could not be  saved. The first information report was lodged around 1.00 p.m.  Investigation was undertaken and on completion thereof, the charge sheet  was placed. It is to be noted that during investigation the name of M.  Venkateswara Reddy was deleted pursuant to the directions of the Sub  Divisional Police Officer.  As such in total 19 accused persons were  charge sheeted.  However, the case of one was separated and 18 accused  persons were tried.  Out of them A-1 to A-8 were convicted, and the rest  were acquitted.  A-1 was convicted for offence punishable under Section  302 read with Section 109 of Indian Penal Code, 1860 (for short the  ’IPC’). A-2 to A-8 were convicted for offences punishable under Sections  302 and 147.  A-1 was sentenced to undergo imprisonment for life, while  A-2 to A-8 were similarly sentenced for the offence punishable under  Section 302 and two years for offence punishable under Section 147. The

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State preferred an appeal before the High Court of Andhra Pradesh  questioning the acquittal of the 10 persons and for non-conviction of A- 1 under Section 147 and for such non-conviction under Section 148 in  relation to A-2 to A-8.  The convicted persons also questioned  correctness of the their conviction.  The High Court by the impugned  order upheld the acquittal of the 10 accused persons.  Appeal relating  to non-conviction under Section 148 so far as A-2 to A-8 are concerned  was also dismissed.  In case of A-1 conviction was made under Section  147 and by a modified order sentence of two years was imposed.  The  convicted accused persons have preferred these appeals questioning the  common judgment rendered by the Division Bench of the Andhra Pradesh  High Court.  As the appeals related to the same judgment, they are taken  up together for disposal.   

       According to Mr. Sushil Kumar, learned senior counsel appearing  for the appellants, the judgments of the trial Court as well as of the  High Court cannot be maintained on more grounds than one. There was  delay in lodging the complaint. In the first information report only 7  names were given out of which name of M. Venkateswara Reddy against whom  specific overt acts were attributed by the assailants was deleted from  the accused persons. PWs 1 to 4 did not suffer any injuries, which is  unnatural.  There was no pre-meditation to commit any offence; as is  evident from the fact that none of the accused persons were armed. In  respect of accused Jaidip the alibi was accepted. Only partisan related  and interested witnesses have been examined.  It was stated in the first  information report that 7 named persons and others whose names were not  indicated were the assailants. In respect of A-6 it was stated that his  presence came to be known. Obviously, PW-1 who was an eyewitness  included his name in array of other accused persons. Though his claim in  Court is to have seen the occurrence, in the first information report a  different picture was given and this renders his presence improbable.   There were serious laches in investigation and 19 stones pieces were  collected as if only 19 stones were lying. This was obviously cooked up  to be in line with 19 injuries found on the bodies of the two deceased  persons.  The medical evidence i.e. the post mortem report shows that at  the time of post mortem it was noticed that the stomach of each of the  deceased was empty. It is improbable that their stomach would be empty  at the point of time the occurrence is claimed to have taken place. It  is the defence version that two dead bodies were found on the way, it  was not known who were the assailants and because of hostility the names  of the appellants have been incorporated. The evidence of PW-1 to PW-4  is highly unreliable and is contradictory in terms.  It was further  submitted that there was a police station nearby at which report could  have been given by those who had not accompanied the injured persons to  the hospital. The trial Court and the High Court have not considered the  case of the accused in the proper perspective. In any event Section 302  IPC has no application.  

In response, Mrs. K. Amreshwari, learned senior counsel, appearing  for the State submitted that concurrent findings of fact have been  recorded by the trial Court and the High Court. After lengthy cross- examination in great detail, nothing infirm has been pointed out by the  accused persons. Merely because one stone each was thrown, that cannot  rule out application of 302 IPC, as was submitted by learned counsel for  the appellants.  A-1 is liable to be convicted under Section 109 also  because at his instigation the other assailants’ acts were done thereof.  There was no delay in lodging the first information report. The  occurrence, according to prosecution, took place at 10.45 a.m. The  immediate reaction of the witnesses who were present would be to save  the lives of the injured persons.  It is clear from evidence that they  were not dead immediately.  Therefore, their conduct in trying to shift  the injured persons to the hospital for treatment is natural and normal.   It is pointed out that everybody’s mind would be focused on how best  treatment can be provided to save the lives.  The death of one of the  deceased persons was around 12.00 noon.  High Court had rightly noted

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that the witnesses would have taken sometime to regain composure and to  prepare first information report. When these normal circumstances are  taken note of, it cannot be said that there was any delay in lodging the  first information report. So far as absence of injury on the witness is  concerned it has come in evidence that A-1 instigated the accused  persons to assault the witnesses who were present and then they ran  away.  In this background the absence of injury on them cannot be a  suspicious circumstance. Merely because the name of M. Venkateswara  Reddy has been deleted, that cannot be a ground to give benefit to the  accused persons. Even though the manner in which the name of said person  was deleted raises the eyebrows, some explanation has been offered with  the acceptability of which we are not concerned in the present appeals.  

That brings us to the other crucial aspect i.e. whether the  presence of A-6 at the time of occurrence is made out and whether the  case falls under Section 302 IPC in the factual ground indicated.  So  far as A-6 is concerned, in the first information report the PW-1 has  stated as follows:

".....One Raghu Ramaiah of Cherukucherla was  also known to have participated in the occurrence  along with Goura Venkata Reddy."

Clarificatory statement accompanied the first information report  which was lodged at 1.00 p.m. goes to show that PW-1 was not sure of the  presence of A-6. But in the FIR and statements of other witnesses, name  of A-6 clearly finds place.  PW-1 has explained how the confusion has  arisen and Courts below have accepted it.  There were twenty assailants.  Merely because one witness has entertained some doubt and was not sure  of his presence and has heard about it, same cannot be a ground to doubt  veracity of evidence tendered by PWs 2 to 4.   

Though it cannot be said as a rule of universal application that  if one stone is thrown causing injuries, Section 302 IPC is ruled out,  we find from the doctor’s evidence that all injuries found on the bodies  of the two deceased persons individually were not held to be fatal.  As  the prosecution version goes to show 19 persons including the 10 who  were acquitted had thrown stones.  Looking to the size of the stone as  described in the documents on record, they do not appear very big.  Here  again, no general rule can be laid that small stone cannot cause any  injury leading to death punishable under Section 302 IPC.  It would  depend upon the facts of each case. In the case at hand it cannot be  said that any particular injury was intended which would result in  death.  But the accused persons can certainly be attributed with the  intention of causing death or causing such bodily injury as is likely to  cause death.  Therefore, instead of conviction under Section 302 IPC,  the proper conviction would be under Section 304 Part I for accused- appellants. Though names of A-7 and A-8 do not appear in the first  information report, but in the statements of witnesses recorded  immediately after occurrence their names were indicated. In the first  information report and the clarificatory statement appended thereto,  some names were given and it was clearly stated that some other persons  were also the assailants.  This being the position mere absence of names  of A-7 and A-8 would not make any difference. Merely because the names  were not specifically mentioned but were spoken by the witnesses  immediately thereafter that cannot be sufficient by itself to create  suspicion. So far as A-1 is concerned, his conviction has to be under  Section 304 read with Section 109 IPC. Learned counsel for the  respondent submitted that instigation was cause of murder and merely  because the conviction is altered, that cannot be ground for non- application of Section 302 read with Section 109 IPC.  

Section 107 IPC defines abetment of a thing. The offence of

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abetment is a separate and distinct offence provided in the Act as an  offence.  A person abets the doing of a thing when (1) he instigates any  person to do that thing; or (2) engages with one or more other persons  in any conspiracy for the doing of that thing; or (3) intentionally  aids, by act or illegal omission, the doing of that thing. These things  are essential to complete abetment as a crime. The word ’instigate’  literally means to provoke, incite, urge on or bring about by persuasion  to do any thing. The abetment may be by instigation, conspiracy or  intentional aid, as provided in the three clauses of Section 107.  Section 109 provides that if the act abetted is committed in consequence  of abetment and there is no provision for the punishment of such  abetment then the offender is to be punished with the punishment  provided for the original offence. ’Act abetted’ in Section 109 means  the specific offence abetted. Therefore, the offence for the abetment of  which a person is charged with the abetment is normally linked with the  proved offence.  In the instant case, the abetted persons have been  convicted for commission of offence punishable under Section 304. So in  the case of A-1 it is Section 304 read with Section 109 IPC, that is  attracted.  

In the ultimate analysis, conviction of the appellants is altered  to Section 304 IPC, except in case of A-1 where the conviction is under  Section 304 read with Section 109 IPC.  In each of the cases, the  sentence will be 10 years rigorous imprisonment. The conviction and  sentence in respect of other offences, will stand and the sentence  therefor shall run concurrently, as ordered by the High Court.   

The appeals are allowed to the extent indicated.