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CASE NO.: Appeal (civil)  889 of 2002

PETITIONER: Harijana Narayana & Ors.                                                

RESPONDENT: Vs. The State of Andhra Pradesh                                             

DATE OF JUDGMENT: 30/07/2003

BENCH: Doraiswamy Raju & H. K. Sema.

JUDGMENT:

J U D G M E N T

D. RAJU, J.

       This appeal has been filed by the six appellants (Accused Nos.1, 3 to 7),  aggrieved against their conviction concurrently recorded by both the courts below  for charges under Sections 148 and 302 read with Section 149 of Indian Penal  Code (for short ‘IPC’), while holding them not guilty of the charge under Section  147, IPC, for which three years R.I. under Section 148 and life imprisonment in  addition to payment of fine with a default clause therefor for the other offence,  came to be dismissed.  Accused No.2 was said to have died during the pendency  of the proceedings in the Trial Court itself and the proceedings held to have  abated against him on 5.7.1996.

       The substance of the prosecution case is that there were ill-feelings  between the accused and the deceased since the year 1985 when the accused  in the month of August 1985 seems to have lodged a complaint against the  deceased-Papi Reddy and his son, Bhasker Reddy (PW-4), on which a case in  Crime No.110/85 under Sections 452, 341, 365, 322 read with Section 149, IPC,  and Section 7(1)(d) of the PCR Act was registered.  On 7.10.1987, the date of  occurrence, at about 9.15 a.m., the deceased and PW-4, his younger son, were  said to have been waiting at Pragatoor Bus Stand to go to Alampur to meet their  Advocate in connection with a case pending against them.  The Road Transport  Corporation Bus seems to have arrived at 9.30 a.m. and after the passengers got  down, the deceased was about to board the Bus, when A-6 and A-7 seem to  have pushed aside the deceased while A-1 to A-5 picked up Axes and Spears,  which were said to have been kept in the nearby Barber Shop.  A-1 was alleged  to have axed on the neck below the right ear of the deceased and A-3 axed on  the right jaw, while A-2 axed on the neck of the deceased.  A-4 and A-5 were  said to have pierced with Spears on the right side of the abdomen.  On hearing  the hue and cry, PW-1 and PW-4 were said to have rushed to the spot and found  the deceased sinking.  The body thereupon seems to have been shifted to the  house of the deceased, nearby but the victim immediately thereafter died.  PW-1,  one of the sons of the deceased, went to the Police Station and lodged a  complaint with PW-10, who registered the same as Crime No.103/87 against the  accused under Sections 147 and 302 read with Section 149, IPC.  A-1 to A-3 are  said to be brothers and A-5 to A-7 are the brothers-in-law of A-1 to A-3.  The  remaining accused were said to be related to each other in one way or the other.   PW-1 and PW-4 are the sons of the deceased, while PW-2 and PW-3 are said to  be close associates of the deceased.  Both the parties belonged to the same  Village.  They and their associates also seem to have been already involved in  one or other criminal cases.  The accused were said to have formed themselves  into an unlawful assembly, armed with deadly weapons like Axes, Spears and  Sticks, etc. with the common object to commit the murder of Papi Reddy when he  arrived at the Bus Stand.  The accused joined together and indiscriminately

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attacked the deceased causing severe injuries.  During the course of  investigation, PW-10 reached the house of the deceased and conducted in the  presence of PW-6 and PW-7 inquest over the dead body of the deceased and  sent the same to the Government Hospital, Alampur, for post mortem  examination where the Doctor (PW-9), who conducted the post mortem  examination, gave his opinion (Ext. P.15) that the death was due to shock and  haemorrhage on account of the multiple injuries sustained by the victim. He  seized M.Os. 8 to 11 from the house of the deceased.  Statements of PW-2 to  PW-4 and one Mala Chinna Krishnaiah were said to have been also recorded.   Ext. P.4, Panchnama of the scene of occurrence, was also said to have been  made and M.Os. 1 and 2 as well as blood stained earth were seized from the  place of occurrence.  PW-11, Circle Inspector of Police, also joined the  investigation and recorded statements of PW-5 and PW-11.  Statements were  also said to have been recorded from the accused pursuant to which M.Os. 3 to  7 were said to have been discovered.  On completion of the investigation, charge  was laid for offences under Sections 147, 148 and 302 read with Section 149,  I.P.C.  The prosecution examined PW-1 to PW-11 and placed reliance upon Ext.  P.1 to Ext. P.18 and M.Os. 1 to 11 to bring home the guilt of the accused.   The  defence of all the accused was of total denial by which it was claimed that they  have been falsely implicated in this case.  On conclusion of the trial, the Accused  1, 3 to 7 were examined under Section 313 of the Criminal Procedure Code  explaining the incriminating circumstances and material against them, which, as  noticed earlier, was denied by the accused.  They did not choose to adduce any  oral evidence on their behalf, but were content to rely upon Ext. D.1, the relevant  portion in Section 161 Criminal Procedure Code, statement of PW-4.

       On a careful consideration of the materials on record, the learned  Sessions Judge found A-1 and A-3 to A-7 to be guilty of the offences under  Sections 148 and 302 read with Section 149, IPC, though they were held not  guilty for the charge under Section 147, IPC.   

       The plea on behalf of the accused that they were involved and implicated  falsely taking advantage of the prior enmity; that the evidence of PWs were said  to be not only of close relatives and associates of the deceased and, therefore,  interested and that the independent witnesses, who were available on the spot,  the nearby houses including some one from the Barber shop where the weapons  were said to have been kept before being handled as well as the Driver and  Conductor of Bus, etc. were deliberately withheld and not examined, did not meet  with the favourable appreciation or acceptance in the hands of the learned Trial  Judge.  There was no positive claim or proper information to show that anyone in  the nearby houses actually witnessed the occurrence and, therefore, the routine  plea of the nature did not appeal to the Courts below for being countenanced.   The alibi pleaded on behalf of A-7 could not be substantiated by proper evidence  and PW-5 with whom he was said to be working, did not also support the claim of  the said accused in this regard.  Similarly, the claim of the Accused 1, 3, 5 and 6  that they were present on the fateful day and the relevant point of time at  Alampur to attend the Special Mobile Court camping on that day, was not  supported by any acceptable or concrete material and came to be also rejected.   As far non-examination of the other independent witnesses, the learned Sessions  Judge meticulously considered each one of them and found that with the criminal  track record of the parties on either side and the sensitiveness in the area and  tense relationship prevailing between the respective parties seems to have  deterred any independent witnesses to volunteer to give evidence and that,  therefore, the non-examination of such witnesses other than those examined was  held to be not either a lapse or wanton omission on the part of the prosecution.   The materials on record were held to be sufficient to substantiate the case of the  prosecution that the accused forming into an unlawful assembly were not only  found rioting armed with deadly weapons in a public place, but also committed  the murder of the deceased.   

       Before the High Court also, the same line of defence was pursued on  behalf of the accused but the learned Judges of the Division Bench seem to have  been also very much satisfied with the quality as well as the quantity of the  evidence, their reliability and genuineness for their acceptance and overruling the  contentions on behalf of the appellants, the findings of fact recorded by the Trial

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Judge and the consequent conviction of the accused came to be affirmed.  The  High Court also found that despite the misunderstandings and animosity between  the parties, there was no concrete or justifying reasons to disbelieve the  evidence let in, particularly that of PW-2, PW-3 and PW-4, which stood  strengthened by the medical opinion as contained in the post mortem certificate  (Ext. P.15) and the deposition of PW-8, the Doctor, who conducted the post  mortem examination.

       The learned Senior Counsel appearing on behalf of the appellants, while  pursuing the same line of defence as was taken before the courts below,  contended that the evidence of PWs, who were either close relatives or close  associates of the deceased, cannot be trusted and solely relied upon to convict  the accused and that the prosecution having withheld all independent and  impartial witnesses, who might have been available on the spot, failed to act in a  fair and just manner resulting in grave injustice to the accused and, therefore, the  case in its entirety ought to have rejected as a false one.  It was also urged that  the plea of alibi and presence of A-1, A-3, A-5 A-6 and A-7 at different places  other than the place of occurrence as pleaded on their behalf, ought to have  been sustained and that they could not be involved, in any manner, with the  occurrence or held responsible for the death of the victim.  It was also contended  on behalf of the appellants that the evidence of PW-5, on the face of it, seems to  be tutored one and a parrot like repetition of the version of the incident belies  their credibility and they could not be the basis for a conviction at all for such  serious offences as those under consideration.

       The learned counsel for the respondent-State, while adopting the  reasoning of the courts below, contended that the courts below have given  cogent and convincing reasons to overrule the objections on behalf of the  defence and nothing could be said to discredit those reasons and the  conclusions concurrently recorded on the basis of overwhelming materials on  record, do not call for interference in this appeal under Article 136 of the  Constitution of India.

       We have carefully considered the submissions of the learned Senior  Counsel on behalf of the appellants.  Our attention has been drawn extensively  to the evidence on record in support of the plea raised on behalf of the  appellants.  The evidence, in each case, has to be considered from the point of  trustworthiness and from the angle as to whether it inspires confidence in the  mind of the Court to accept and that the question of credibility and reliability of a  witness has to be decided with reference to the way he fared in cross- examination and the nature of impression created in the mind of the Court.   There is no such universal rule as to warrant rejection of the evidence of a  witness merely because he/she was related to or interested in the parties on  either side.  In such cases if the presence of such a witness at the time of  occurrence is proved or considered to be natural and the evidence tendered by  such witness is found in the light of the surrounding circumstances and  probabilities of the case to be true, it can provide a good and sound basis for  conviction of the accused.  Where it is shown that there is enmity and the  witnesses are near relatives too, the Court has a duty to scrutinize their evidence  with great care, caution and circumspection and very careful too in weighing such  evidence.  In a situation like the one on hand where there are factions based on  communal disharmony and the factions involved in this case are on warpath with  each other â\200\223 it would not only be idle but next to impossibility to secure the  evidence of any independent witness and no one such would be prepared to  undertake to risk themselves by coming as witnesses.  All these aspects have  been meticulously and elaborately considered by the learned Trial Judge in its  proper perspective and convincing, cogent and sound reasons have been given  to accept and act upon the evidence of PWs-2, 3 and 4 in this case.  The  reasonableness of the approach, appreciation of evidence and the ultimate  conclusions arrived at by the Trial Court also seem to have had acceptance in  hands of the High Court.  Nothing concrete has been pointed out or substantiated  to oblige us to either discredit or reject their evidence in this case or interfere with  the conclusions arrived at by the courts below.

       Every case should depend, ultimately, on the facts and circumstances of

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the particular case.  The case of the prosecution should be judged taking into  account the overall circumstances of the case, with a practical, pragmatic and  reasonable approach in the matter of appreciation of the evidence let in to drive  home the guilt of the accused.  The decisions reported in Shamu Balu  Chaugule Vs. State of Maharashtra [(1976) 1 SCC 438] and Dharam Singh &  Ors. Vs. State of Punjab [(1993) Supp. (3) SCC 532] turned on the peculiar  facts actually proved in those cases, and the observations made therein cannot  be taken dehors the facts held substantiated in those cases.  Those decisions do  not, in our view, purport to lay down any general principle of law for universal  application despite the fact situation of the particular case concerned and,  therefore, could be of no assistance for the appellants in this case.  The plea of  alibi, in this case on hand, came to be rightly rejected by the learned Sessions  Judge in the absence of any credible or concrete proof of their absence from the  place of occurrence and the same is not shown to be either unreasonable or  incredible and in any manner incapable of acceptance.  The two other decisions,  one of the High Court and another of this Court, relied upon for the appellants  also have no relevance to the facts on record in this case.  It is only when the  Courts are unable to sift the grain from the chaff and finds that the truth and  falsehood so inextricably got mixed together in a given case and that it will be  really difficult to separate them, the question of rejection of such evidence may  arise.  The decision of the Orissa High Court relied upon also turned on the facts  of the case only.  Merely because some of the eyewitnesses narrated the  occurrence relating to the injuries caused in similar manner, that could not itself  be a ground to reject their evidence in toto, if otherwise credible, trustworthy and  creates confidence.  The prosecution in this case, at any rate, could not be  legitimately or properly accused of having withheld any material / independent  witnesses with any unfair motive and the reasons assigned by the learned Trial  Judge succinctly and sufficiently answers this grievance.  Though an attempt has  been made to impress upon us that the evidence of PWs-2, 3 and 4 are in a  parrot like repetition and does not give an impression that they are natural or  speaking the truth of what they actually saw, we are not impressed by such  criticism of the evidence merely because while describing the injuries caused  alone, the same is found to have been expressed in a particular order or manner.   A careful reading of the rest and entirely of the evidence does not give any such  impression and the only portion pointed out in this connection from their evidence  may be due to the manner of recording the version given by the witnesses or the  method of translation, and not otherwise.

       On going through the totality of the evidence, we have no hesitation to  affirm the well-merited findings concurrently recorded by both the courts below.   That all the accused were found to have acted in concert and attacked the  deceased armed with deadly weapons likely to cause death, when used as a  weapon and that they formed themselves into an unlawful assembly with the  common object of doing away with the deceased is found amply established and  sufficiently proved by substantive and acceptable evidence.  The murder, though  of a person with a mixed record, seems to be a calculated one and the manner in  which it was got executed by all the accused acting in unison in a preplanned  manner to achieve their design, has been rightly held to answer the definition of  murder by the courts below, punishable under Section 302 of the IPC read with  Section 149, IPC.  We find no justifiable reason whatsoever to draw any different  conclusion than those arrived at concurrently by the courts below, on the  evidence on record.

       The appeal, therefore, fails and shall stand dismissed.