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PETITIONER: KOMMA NEELAKANTHA REDDY & ORS.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT16/02/1978

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. FAZALALI, SYED MURTAZA

CITATION:  1978 AIR 1021            1978 SCR  (3)  75  1978 SCC  (2) 473

ACT: Eye witness--Reliability of witness--Eye witnesses who  were Police-men  specially  posted  due  to  strained   relations between  the two factions, making the F.I.R. Ex.  P  2  when the  party  of the deceased refused to make  a  report,  but making  a statement in a departmental enquiry  against  them for  dereliction of duty, that they arrived at the place  of incident after everything was over. Penal  Code  (Act  45  of 1860),  1860  Sections  141,  149, 151--Scope of.

HEADNOTE: Twenty five persons were charged with offences under various sections of I,P.C. on the basis of first information  report No. Ex.  P 2 filed by PWs. 1 and 2. PWs. 1, 2 and 3, the eye witnesses, were members of Police Party specially posted  at the place of incident due to the strained relations  between the party of the accused and the party of the deceased.  The F.I.R.  was drawn up and filed by them as the party  of  the deceased  refused to make a report.  The  first  information report stated, (a) that the party of the deceased went  upto the  terrace of the house of Subbi Reddy and challenged  the party of the accused to a fight, whereupon the party of  the accused came to the terrace of the house of. one Somi  Reddy which  was at some distance from the house of  Subbi  Reddy, (b)  that  A2, A4, A6 and A9 were armed with guns and  as  a result of their firing at the party of the deceased  several persons received gun-shot injuries of whom Ramakrishna Reddy succumbed to his injury and (c) that the policemen tried  to apprehend  the  accused but they ran away.   The  Additional Sessions  Judge, Cuddapah, who did not find it  possible  to place reliance on the evidence of the prosecution witnesses, acquitted  the accused by his judgment dt.  April 21,  1971. An  appeal was filed against the acquittal.  Al and A2  died during  the appeal.  The High Court relied on the  testimony of  PWs.   1 to 3 set "id, the judgment in  respect  of  the acquittal  of  A 3 to A 9, A 11, A 12, A 13 and  A  19  ’but confirmed the acquittal of the rest.  Hence this appeal.  It was  contended that in view of the contrary statements  made by PWs.  1 to 3 in the departmental enquiry against them for dereliction  of  duty, they falsely claimed to  be  the  eye witnesses   and  therefore  the  conviction  could  not   be

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sustained. Dismissing  the  appeals of A 4, A 6, A 9 and  allowing  the appeals of the rest the court, HELD : 1. The High Court rightly took the view that all  the three policemen were present at the time of the incident and witnessed  it, and that the statements given by them in  the departmental  inquiry against them for dereliction  of  duty were for the purpose of avoiding an adverse finding in  the, inquiry.    One   tell-tale  fact  which  was   taken   into consideration  was  the injury received by PW  3  when  both sides were throwing stones at each other. [78E-F] 2.   The High Court did not misread the evidence inasmuch as it  has  taken  note  of the fact that  PW  1  was  a  local constable who was stationed in village Kasanur not only  for the occasion which led to the present incident, but also  on earlier  occasions  including  service  of  summonses,   and therefore  had  opportunity  of knowing  the  names  of  the accused.   It was therefore rightly held that A 2, A 4, A  6 and  A  9  had fired their guns resulting in  the  death  of Ramakrishna  Reddy  and  injuries  to  several   prosecution witnesses. [78D, E, H] 3.   Section  149  I.P.C.  provides that if  an  offence  is committed   by  any  member  of  an  unlawful  assembly   in prosecution of the common object of that assembly or such as the  members  of  that  assembly knew to  be  likely  to  be committed  in prosecution of that object, every person  who, at the time of the committing of ’that offence, is a  member of the same assembly, is guilty of that offence. 76 "Unlawful assembly" has been definded in section 141 I.P.C., while  s. 142 states. who can be said to be its member.   An unlawful  assembly  is  thus an assembly of  five  or  more, persons if the common object of the persons composing it  is of  the  nature  specified in items first to  fifth  of  the section.   It cannot be urged that any item other than  that part  of  the third item which relates  to  "other  offence" could possibly be attracted to the present case. [79B-D] (b)  An  offence  will  fall within the purview  of  s.  149 I.P.C. even if the members of the assembly knew that it  was "likely  to  be committed" in prosecution  of  their  common object  or  if the offence was such as the members  of  that assembly knew to be likely to be committed in prosecution of that  object.   ’Mere is nothing in the  statements  of  the three  police witnesses to prove that this was  so.  Section 149  I.P.C. will not therefore fasten criminal liability  on the other accused. [80G-H] (c)  From the evidence of PWs.  1 to 3 it is not possible to reach the conclusion that the other accused (other than A 2, A  4, A 6, A 9) were armed with spears or that they went  up the  terrace  with  the  common  object  of  committing  any offence.   On the other hand the statements of PWs. 4 and  6 showed  that  the party of the accused did not go  to  their terrace  of their own accord for committing any offence.   A 2, A 4, A 6 and A 9 were armed with guns and fired them some time  thereafter, but there was nothing in the  evidence  of PWs.  1  to 3 to show that they did so in pursuance  of  the common  object of the other persons who were on the  terrace at  that time.  Under the explanation to S. 141 an  assembly which  was  not  unlawful when  assembled  may  subsequently become  an unlawful assembly, but there, was nothing in  the evidence of the three police witnesses to show that this was so  or that the other accused exhorted those who  fired  the guns  or knew that the gun would be, fired.  There was  also nothing  to show that the other accused knew that  the  guns were  likely  to  be fired in prosecution  of  their  common

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object. [80A, E-F] 4.   Section  151  would  be attracted  only  if  there  was evidence  to  show  that the  assembly  had  been  "lawfully commanded  to dispense".  There is nothing in the  statement of  the  three police witnesses to show that they  gave  any such command.  They have merely stated that they warned  the two  factions who were pelting stones, and none of them  has stated that any command for dispersal was    en  by  any  of them.   The High Court therefore erred in invoking sec.  151 I.P.C. for the purpose of convicting the other accused  with the aid of section 149 I.P.C. [81A-B]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 224 of 1973. (From  the Judgment and Order dated 3-8-1973 of  the  Andhra Pradesh High Court in Crl.  A. No. 561 of 1971.) P.   Basi Reddy, and A. V. V. Nair, for the appellants. P.   Parmeswara  Rao,  and  T. V.  Narasimhachari,  for  the respondent. The Judgment of the Court was delivered by SHINGHAL. J., This appeal by the accused is directed against the  judgment  of  the High Court of  Andhra  Pradesh  dated August 3, 1973, by which their acquittal has been set  aside and   they  have  been  convicted  and  sentenced  for   the commission  of  various  offences.   Both  the  courts  have referred  to the accused and the prosecution witnesses  with reference  to their serial numbers, and as arguments  before us 77 have also been advanced with reference to those numbers,  it will  be convenient to adhere to that method  of  describing them. The incident which has given rise to this appeal relates  to village  Kasanur, within the jurisdiction  of  Simhadripuram police station in Pulivendla taluk of Cuddapah district.  It is  alleged that there was long standing enmity between  the group  of  the  accused led by A-1, and  the  group  of  the prosecution witnesses led by Harishchandra Reddy.  The  High Court has mentioned the cause of the enmity and the disputes which preceded the present incident.  It is alleged that  on the  morning of January 11, 1970, deceased Ramkrishna  Reddy and P.W. 16 went to Simhadripuram to make some purchases and were  beaten up by A-6, and A-21.  They returned to  Kasanur some time thereafter.  At about 4 p.m. while P.Ws. 6, 7,  8, 9,  10,  11, 12 and 13 were standing at the house  of  Subbi Reddy,   the   deceased  went  there   and   reported   that incident.P.W.  5 also came running there and intimated  that he  had  been chased by the members of the other  party  who were  armed with spears and guns.  All of them then went  up the  terrace of the house of Subbi Reddy and challenged  the other party i.e. the party of the accused) to a fight.   The accused  came to the terrace of the house of one Somi  Reddy which  was at some distance from the house of  Subbi  Reddy. A-2,  A-4,  A-6 and A-9 were armed with guns and  the  other accused  were  armed with spears.  Both  sides  indulged  in throwing stones at each other.  It so happened that in those days  a police party had been stationed in the  village  be- cause  of the strained relations between the  two  factions. P.Ws. 1, 2 and 3 were members of the police party.  They had received  intimation  from  P.W. 21,  who  was  the  village Munsif,  about the likelihood of a breach of the  peace  and dispatched  report Ex.  P.1 to police station  Simhadripuram

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for  obtaining reinforcement.  In the mean time,  the  three policemen  reached the place of the incident and  found  the two  parties  on  the  terraces  of  the  two  houses.   The policemen warmed both the sides, but to no effect and it  is said  that they saw the two factions hurling stones at  each other.   It is further alleged that A-2, A-4, A-6  and  A-9, who  were  armed with guns, fired. at the  party  of  Harish chandra  Reddy  on the terrace of Subbi  Reddy.   Ramkrishna Reddy  received gun shot injuries and died.   Several  other persons  belonging to his party received gun shot  injuries. The  policemen tried to apprehend the accused, but they  ran away.  The party of the deceased was asked to make a  report but  as they were not willing to do so, report Ex.  P.2  was drawn  up  by  P.Ws.  1 and 2 and was  sent  to  the  police station.   A  case  was  registered  and  investigation  was commenced by P.W. 30.  The dead body of Ramkrishna Reddy was sent  for  postmortem examination, and so also  the  injured persons.   The  case  was  ultimately  tried  by  Additional Sessions  Judge, Cuddapah, who did not find it  possible  to place reliance on the evidence of the prosecution  witnesses and  acquitted the accused by his judgment dated  April  21, 1971.   An appeal was filed against the  acquittal.   Appel- lants A-1, and A-2 died thereafter.  As has been stated, the High  Court  has set aside that judgment in respect  of  the acquittal of A-3, to A-9, A-11, A-12, A-13 and A-19, but has confirmed the acquittal 78 of  the remaining accused.  This is how those who have  been convicted have come up in appeal to this Court. As  has  been stated, P.Ws. 1 to 3 are the  policemen.   The first  two  of them were responsible of the lodging  of  the first  information  report  Ex-P.2 within  an  hour  of  the incident.   P.W.  1 was a constable blonging to  the  police station  and  was familiar with the names  of  the  accused. P.W.  2  was  the ’naik’ of the armed  police,  and  P.W.  3 belonged to his force.  The High Court has relied heavily on the testimony of these witnesses and the question is whether ’it  has  committed any error of law in doing-  so,  or  has misread the evidence in, any respect. It  has been strenuously argued by Mr. Basi Reddy on  behalf of the appellants that policemen arrived at the place of the incident after everything was over and have falsely  claimed that  they  witnessed  the  incident.   In  support  of  his argument  counsel  has placed considerable reliance  on  the statements  of these witnesses in the  departmental  inquiry against  them  for dereliction of duty, and has  also  urged that these witnesses could not possibly have been  familiar. with the names of the accused. We  have examined both these arguments.  The High Court  has taken note of the fact that P.W. 1 was a local constable who was  stationed in village Kasanur not only for the  occasion which  led  to  the present incident, but  also  on  earlier occasions including service of summonses.  He had  therefore opportunities of knowing the accused by name, and it  cannot be  said that the High Court misread the evidence in  taking that  view.   The High Court has also examined  the  earlier statements of the witnesses in the departmental inquiry  and has taken the view that those, statements were given for the purpose  of avoiding an adverse finding in the inquiry.   It has  also given adequate reasons for holding that they  were present  at  the  time of the  incident  and  were  reliable witnesses.  One "tell-tale" fact which lids been taken  into consideration  in  this  respect is  the  injury  which  was received  by P.W. 3 when both sides were throwing stones  at each other.  P.W. 17, who was the medical officer,  attached

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to  the  government  hospital at  Pulivendla,  examined  the injury, and the High Court was justified in taking the  view that it was inflicted at the time of the incident.  So  when there  was  satisfactory evidence to prove the  presence  of P.W.3 at the time of the incident, it was only natural  that P.W.  2, who was his ’naik, should also’ have  been  present there.   As  P.W.  1 was familiar with the area  and  was  a member of the police party, the High Court rightly took  the view that all three of them were present at the time of  the incident  and  witnessed  it.  The High  Court  has  made  a reference  to the other evidence bearing on its  finding  to that effect, and we find no reason to disagree with its view that the policemen witnessed the incident and were  reliable in what they have stated.  A-2, A-4, A-6 and A-9 fired their guns  resulting  in the death of Ramkrishna  Reddy  and  the injuries on several prosecution witnesses.  Of these A-2 has died, and no other argument worth the name has been made for interfering with the 79 order of their conviction and the sentences imposed on  them by  the High Court.  Their conviction and the sentences  are therefore upheld. The  question however remains whether the  other  appellants have rightly been convicted of offences under sections  302, 326  and  324 with the aid of section 149  I.P.C.  The  High Court  has  made a reference to section 151 I.P.C.  and  has taken  the  view  that they were’  members  of  an  unlawful assembly as they continued in it after it bad been  lawfully commanded by the policemen to disperse. Section 149 I.P.C. provides that if an offence is  committed by any member of an unlawful assembly in prosecution of  the common  object of that assembly, or such as the  members  of that  assembly  knew.  to  be  likely  to  be  committed  in prosecution of that object, every person who at the time  of the  committing  of that offence, is a member  of  the  same assembly,  is- guilty of that offence.  "Unlawful  assembly" has  been defined in section 141 I.P.C., while  section  142 states  who  can  be said to be  its  member.   An  unlawful assembly is thus an assembly of five or more persons if  the common  object of the persons composing it is of the  nature specified in items first to fifth of the section.  It cannot be  urged,  for purposes of this case, that any  item  other than  that  part,of the third item which relates  to  "other offence"  could possibly be attracted to the  present  case. It  has  therefore  to  be  examined  whether  it  has  been established by the prosecution that the common object of the accused was to commit any offence. We  have  gone through the evidence of P.Ws. 1, 2 and  3  on which  reliance has been placed by the High Court.  It  will be  recalled that P.W. 1 was familiar with the  factions  in the village.  The, relevant part of his testimony is that he found about 30 persons of the party of A-1 on the terrace of Reddygari Ramireddy’s house, that A-2, A-4, A-6 and A-9 were in  that-  party and were armed with guns while  the  others were  armed with spears.  The fact that those  four  accused who   fired  their  guns  has  been  stated  in  the   first information  report but it does not mention that  the  other accused  were  armed with spears.  The witness  has  further stated  that  the party of Harishchandra Reddy  was  on  the terrace  of  the  house of Subbi Reddy  and  that  both  the parties  were pelting stones at each other.  He claims  that the  policemen warned both the parties, and when they  moved to the house of Bayapureddy, A-2, A-4, A-6 and A-9 shot guns in the direction of Subbi Reddy’s house.  Now apart from the fact  that  there  is no mention in  the  first  information

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report  that  the other accused were armed with  spears,  we find  that no speat injury was found on the members  of  the other  party.   In fact the accused could possibly  have  no advantage  in arming themselves with spears as they were  at such  considerable distance from the other party  that  even the  stones did not  anyone in that gathering.  P.W.  1  has signed the first information report (Ex-P. 2), and it  shows that  the  party  of  the  accused  went  upto  the  terrace "suddenly".  Thus after 80 examining the entire statement of P.W. 1 we find that it  is not possible to reach the conclusion that the other  accused were  armed  with spears, or that they went up  the  terrace with  the common object of committing any offence.   P.W.  2 was the ’naik’ of the Armed Reserve Police Force, while P.W. 3  was a constable.  We have gone through  their  statements also and the same is the position in regard to them. The  High Court has not found it possible to place  reliance on  the version of the other prosecution witnesses that  all the  25  accused named by them participated  in  the  crime. Reasons  for that view have been mentioned in the  judgment. Those  witnesses were members of the opposite  faction,  and their   testimony  has  to  be  examined   carefully.    The statements of those witnesses are quite similar, and it will be  sufficient to refer to the statement of P.W. 4  who  has deposed  about the strained relations leading upto the  last incident  and  has given all the details about it.   He  has stated  that while they were sitting in the verandah of  the house  of  Subbi  Reddy at about 4 p.m. on the  day  of  the incident,  the  deceased  came and told  them  that  he  and Anjaneyulureddi   were   beaten  by  A-6   and   others   in Simhadripuram and that P.W. 5 also came running and  :stated that  he was chased by the people of the party of A-1.   The witness has further stated that all of them then went up the terrace   of   Subbi   Reddy’s  house  and   that   he   and Rangareddigari  Viswanathareddy " called the people  of  the party  of A-1" after going to the top of the house  and  the accused  also came to the terrace of the house of  Reddigari Ramireddy and Somireddy P.W. 5 has stated that "then P.W.  4 and Rangareddigari Viswanatha Reddy went a little forward to the  terrace of Rachamalla Krishna Reddy and cried out  who- ever  was prepared to fight should (could) come"  and  "then all the accused herein and Lakshmi Reddy and Narasimha Reddy who  are  now  dead  went  upto  the  terrace  of  Reddigari Ramireddy."  It is therefore quite clear that the  party  of the accused did not go to their terrace of their own  accord for  committing any offence.  It is true that A-2, A-4,  A-6 and  A-9  were  armed with guns and  fired  them  some  time thereafter,  but there is nothing in the testimony of  P.Ws. 1,  2  and 3 to show that they did so in  pursuance  of  the common  object of the other persons who were on the  terrace at  that  time.  We are mindful of the fact that  under  the explanation to section 141 I.P.C., an assembly which was not unlawful  when  it  assembled  may  subsequently  become  an unlawful assembly, but there is nothing in the testimony  of the  three police witnesses to show that this was so in  the present  case or that the other accused exhorted  those  who fired  the  guns or knew that the guns would be  fired.   An offence will no doubt fall within the purview of section 149 I.P.C.  even  if members of the assembly knew  that  it  was "likely  to  be committed" in prosecution  of  their  common object  or  if the offence was such as the members  of  that assembly knew to be likely to be committed in prosecution of that object.  There is however nothing in the statements  of the  three  police  witnesses to prove  that  this  was  so.

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Section  149  I.P.C.  will  not  therefore  fasten  criminal liability on the other accused. 81 As  has been stated, the High Court has invoked section  151 I.P.C.  for convicting the other accused under  section  149 I.P.C.  and  has made a reference to the warning  which  was given by the policemen at the time of the incident.  Section 151 will however be attracted only if there was evidence  to show  that  the  assembly had been  "lawfully  commanded  to disperse."  But  there is nothing in the statements  of  the three  police  witnesses  to show that they  gave  any  such command.   They have merely stated that they warned the  two factions  who  were  pelting stones, and none  of  them  has stated  that any command for dispersal was given by  any  of them.   The High Court therefore erred in  invoking  section 151 I.P.C. for the- purpose of convicting the other  accused with the aid of section 149 I.P.C. It  would thus appear that there is no reliable evidence  to prove that the accused assembled at the terrace of Reddigari Ramireddy’s house for the purpose of committing any offence. On  the  other  hand,  it  has  been  established  from  the statements  of P.Ws. 4 and 5 that they went there  on  their aggressive call.  There is also no evidence to show that the other members of the assembly knew that those who were armed with guns were likely to, use them or that they exhorted  or encouraged  the firing.  The version regarding  their  being armed  with  spears cannot be accepted as it  has  not  been mentioned in the first information report.  Moreover, as has been  pointed out, spears could not possibly have been  used because of the intervening distance and it is a fact that no injury  was  inflicted on anyone with  these  weapons.   The distance which separated the two parties was go considerable that  even  stones  did not hit anyone.   We  are  therefore unable  to uphold the conviction of the other  accused  with the  aid  of  section  149 I.P.C. and  they  deserve  to  be acquitted. In  the result the appeal fails in so far as the  conviction and sentences of appellants A-4, A-6 and A-9 are  concerned, but  it is allowed in respect of the other eight  appellants and  they are acquitted of the offences of which  they  have been convicted and sentenced by the High Court.  They are in jail and shall be released forthwith. S.R.                      Appeal allowed in part. 82