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CASE NO.: Appeal (crl.)  540 of 1998

PETITIONER: Gubbala Venugopalaswamy and Ors.

RESPONDENT: State of Andhra Pradesh

DATE OF JUDGMENT: 06/04/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       The four appellants described as accused A-1, A-2, A-3  and A-4 faced trial along with three others for alleged  commission of offences punishable under Sections 302, 120B  and 148 of the Indian Penal Code 1860 (for short ’the IPC’).   The Trial Court found the present appellants to be guilty of  offence punishable under Section 302 IPC but not of the  other two offences. Accused A-5 to A-7 were acquitted as the  Trial Court held evidence to be insufficient to hold them  guilty.  A-1 was sentenced to undergo life imprisonment with  fine of Rs.2,000/- with default stipulation of six months.   Matter was carried in appeal before the Andhra Pradesh High  Court which by the impugned judgment held A-1 and A-4 guilty  of offence punishable under Section 326 IPC and sentenced  each to undergo RI for 10 years and to pay a fine of  Rs.1,000/- with default stipulation of four months.  A-2 was  found guilty of offence punishable under Section 302 IPC by  affirming conviction made and sentence imposed by the Trial  Court. A-3 was convicted of offence punishable under Section  324 IPC and was sentenced to undergo imprisonment for a  period of three years and to pay a fine of Rs.500/- with  default stipulation of two months imprisonment.   

       Prosecution version as unfolded during trial is as  follows:

       All the accused assembled in the house of A-2  (Boorabathula Ramachandra Rao) at about 10.00 a.m. on  31.7.1993 and entered into a criminal conspiracy to kill   Gubballa Sambamurthy (hereinafter referred to as the  ’deceased’) on that day itself. Subsequently at 12.00 noon  on the same day A-2 to A-7 assembled again in the house of  one Chelliboyina Venkata Narasamma (examined as PW-5) in  West Kaza village and once again conspired to kill the  deceased when he would be going to Palakol. A-2 brought  knives in a bag and also informed the other accused persons  that A-1 would join them at 3.00 p.m. at the scene of  offence, and pursuant to their criminal conspiracy all the  accused assembled with yerukula knives and formed themselves  into an unlawful assembly at Palakol-Vardhanam road in the  cattle shed of Allam Udayavarlu on the outskirts of Palakol  on the same day at about 3.00 p.m. with the common object of  killing the deceased. At about 3.30 p.m. while the deceased  was going on his cycle from his village West Kaza towards

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Palakol with three empty cement bags to purchase sundry  articles in the shandy at Palakol, all the accused armed  with yerukula knives surrounded him when he came to the  scene of offence and inflicted injuries on him resulting in  his death on the spot.  A-1 hacked him on his right side  neck, A-2 hacked him on his right side neck, and A-3 hacked  him on his back; and when the deceased fell down, A-4 hacked  him on his left chest. A-5 hacked him on his right shoulder,  A-6 hacked him below left shoulder and A-7 also hacked him.  At the time of occurrence, the brother of the deceased  Gubbala Sriramamurthy (PW-1), Gubbala Gopalam (PW-2) and  Gubbala Chalapathi (PW-3) all of West Kaza village were  following on two cycles a little behind the deceased, and  witnessed the occurrence, and on seeing them, accused  removed the body of the deceased to the nearby irrigation  body and escaped with their weapons. The scene of occurrence  was on the southern side of the road margin of Palakol- Vardhanam road in front of the cattle shed of Allam  Udayavarlu on the outskirts of Palakol town. A-1 was the  leader of the Congress-I party and the other accused were  his followers; and the deceased was one of the organizers of  CPM party. Besides political rivalries, there were personal  rivalries between the families of A-1 and the deceased and  number of criminal cases were filed against the persons  belonging to the two parties.  On the previous day, i.e. on  30.7.1993, Gubbala Venkataswamy, the brother of A-1,  performed the marriages of his son and daughter, and those  belonging to Congress-I party under the leadership of A-1  did not attend that marriage while the deceased and his  followers attended those marriages in large numbers and made  them a grand success and this precipitated the matters and  led the accused to a conspiracy to kill the deceased.                            

       On completion of investigation charge sheet was filed  and after framing of charges, the trial was taken up.  In  order to further its version, prosecution examined 16  witnesses while the accused persons examined 7 witnesses to  substantiate their plea of false implication and innocence.   The Trial Court found that as per prosecution, there were  eye-witnesses PWs 1, 2 and 3, though PWs 2 and 3 resiled  from the statements made during investigation.  Primarily  conviction was recorded placing reliance on the evidence of  PW-1 though the Trial Court and the High Court found that  the evidence was not without blemish.

       In support of the appeal, learned counsel for the  appellant submitted that Trial Court and the High Court  having accepted that there were exaggerations made by PW-1  and since evidence was not totally reliable, at least some  corroborative evidence should have been led by the  prosecution.  The scene of occurrence was not established  and on the contrary, the evidence indicated that the  occurrence did not take at the place and in the manner  prescribed by the prosecution and the defence version was  more probable.  The reasons ascribed by the Trial Court to  discard the evidence of PW-3 are equally applicable to PW-1  and no distinction should have been made to accept PW-1’s  version. The conduct of prosecution witnesses and the  evidence tendered by them is clearly unnatural. It is too  much to accept that the accused persons would carry the dead  body when PW-1 was allegedly witnessing the occurrence.  Courts below having considered PW-1 to be not wholly  reliable should have directed acquittal.

       In response, learned counsel for the State submitted

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that though PW-1 has not been able to clearly state about  certain aspects, yet portion of his testimony has been found  sufficient by the courts below to fasten guilt on the  accused persons.  The conclusions are essentially factual  and two courts below having found the evidence to be  sufficient for the purpose of convicting the accused  persons, no interference is called for.  There was no cross- examination on the aspect regarding presence of PW-1 at  about 1.30 p.m.  Though the Trial court and the High Court  found some variations in the evidence yet the overall view  has been taken and no interference is called for on that  score also.   

       Much stress has been laid by the learned counsel for  the appellants on the alleged unnatural conduct of the  witnesses.  We find, as has been found by the courts below,  after finding deceased to have breathed his last the obvious  reaction was to set the law into motion.  The plea that FIR  was not lodged at the nearest Police Station is without  substance. It is clearly stated in evidence that a Constable  told the witness that the Inspector is not available and he  was not competent to accept the intimation and had suggested  that the report may be lodged at another Police Station  having jurisdiction.

As a rule of universal application it cannot be said  that when a portion of the prosecution evidence is discarded  as unworthy of credence, there cannot be any conviction.  It  is always open to the Court to differentiate between an  accused who has been convicted and those who have been  acquitted.  [See Guru Charan Singh and Another v. State of  Punjab (AIR 1956 SC 460) and Sucha Singh and Another v.  State of Punjab (2003 (5) Supreme 445)].  The maxim "Falsus  in uno falsus in omnibus" is merely a rule of caution.     As has been indicated by this Court in Sucha Singh’s case  (supra), in terms of felicitous metaphor, an attempt has to  be made to separate grain from the chaff, truth from  falsehood. When the prosecution is able to establish its  case by acceptable evidence, though in part, the accused can  be convicted even if the co-accused have been acquitted on  the ground that the evidence led was not sufficient to  fasten guilt on them.  But where the position is such that  the evidence is totally unreliable, and it will be  impossible to separate truth from falsehood to an extent  that they are inextricably mixed up, and in the process of  separation an absolute new case has to be reconstructed by  divorcing essential details presented by the prosecution  completely from the context and background against which  they are made, conviction cannot be made.  

       The above position was highlighted in Narain v. State  of M.P. (2004 (2) SCC 455)  

       We find that PW-1’s version has not been found credible  on certain aspects.  But that per se cannot be a ground to  discard his evidence even if it is found to be otherwise  credible. So far as the prosecution version is concerned, he  has ascribed particular roles and acts to the accused  persons. Though PWs 2 and 3 have turned hostile in respect  of part of their evidence, it is fairly settled position in  law that even if part of evidence is discarded, that cannot  be a ground to discard the evidence, more particularly that  part of the evidence which is cogent and credible. The  evidence and subsequent acts have been attributed to A-4 in

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view of the evidence of PW-1 which has remained unaffected,  in spite of the incisive cross-examination. The evidence on  record is sufficient to establish the conviction.  But we  find that sentence of 10 years has been awarded for the  offence punishable under Section 326 IPC. It is on the  higher side.  Custodial sentence of 5 years to A-1 and A-4  for their conviction under Section 326 IPC would suffice.   In the ultimate result, the appeal filed by A-1 and A-4 are  allowed to the extent of reduction in sentence, and stands  dismissed so far as A-2 and A-3 are concerned.

The appeal is disposed of as indicated above.