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PETITIONER: BADDI VENKATA NARASAYYA & ORS.

       Vs.

RESPONDENT: THE STATE OF ANDHRA PRADESH

DATE OF JUDGMENT:       24/11/1997

BENCH: M.K. MUKHERJEE

ACT:

HEADNOTE:

JUDGMENT:                THE 24TH DAY OF NOVEMBER, 1997 Present:               Hon’ble Mr. Justice M.K. Mukherjee               Hon’ble Mr. Justice K.T. Thomas S.Muralidhar, Adv.  for  S.  Ravindra  Bhat,  Adv.  for  the appellants Ms. K. Amreshwari, Sr. Adv., G. Prabhakar, and V.R. Anumolu, Advs. with him for the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: Thomas, J.      In this  case of  an organised mass attack unleashed on some unarmed  victims 4  persons were  killed  and  17  were injured, many  of them  grievously. Police charge-sheeted 64 persons as  accused in  this case,  but the  Sessions  Court convicted only 45 among them for various offences, common of which is  rioting with  deadly weapons.  Among those accused who were  convicted of  murder, the  trial  court  sentenced first accused  to death  and others who were convicted under Section 302  IPC with  or without the aid or Section 149 IPC were  sentenced  to  life  imprisonment.  Shorter  terms  of imprisonment  were   awarded  to   those  accused  who  were convicted of  lesser  offences.  Out  of  the  45  convicted persons one  died after trial court judgment and so the High Court of  Andhra Pradesh  heard the  appeals  filed  by  the remaining 44  persons. A  Division bench  of the  High court confirmed the conviction and sentence as against 35 of them, except that  the sentence  of death  passed on  t  he  first accused was  reduced to  imprisonment for  life. This appeal has been  filed by  the aforesaid 35 persons after obtaining special leave.      The case  put forward by the prosecution as against the appellants is,  in short,  this: A  feud developed among the members of  Yadav  community  in  Chennapuram  village.  One division  was   headed  by   first  accused  (Baddi  Venkata Narasayya )  and the  other faction was led by Baddi Mallesu (one of  the person  killed). The  acrimony which existed as between the  two factions  mounted up  day by  day  and  the police had to resort to proceedings under Section 107 of the Code of  Criminal procedure against persons belonging to the

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rival  groups,  besides  registering  other  criminal  cases against some  of them.  But those  steps did  not abate  the intensity of  bitterness  between  members  of  the  warring groups. Those  belonging   to the group led by Baddi Mallesu perched  themselves  in  a  Harijan  colony  at  Chennapuram village and they thought that they were safe from the attack of the  other faction.  But such  hopes were belied when all the accused  marched to the Harijan colony armed with deadly weapons, such  as spears,  choppers,  sticks,  stones  etc., during the  morning hours  of 30-10-1000  and made a massive attack on  the  persons  who  had  sheltered  themselves  in different  houses  situated  in  the  Harijan  colony.  What followed thereafter  was a terribly violent mayhem. When the assailants retreated  from the  field four dead bodies and a large number of brutally mutilated persons were lying on the ground.      In the  trial court  prosecution examined altogether 49 witnesses which list included injured persons and other  eye witnesses. Trial court and the High Court have made detailed evaluation of  the evidence  and came  to the  finding  that there was  an unlawful  assembly consisting of the convicted persons the  common object  of a  number of them was to kill the members of the rival faction.      After hearing  learned counsel on both sides we are not persuaded  to  re-evaluate  the  evidence  in  view  of  the concurrent findings  reached on the crucial points regarding formation of unlawful assembly and their common object.      Learned counsel  for the  appellant, however, submitted that in  view of  the large number of victims and assailants involved in  this occurrence  it is not expedient to confirm the conviction  against those accused whose participation in the action  has not been supported by the reliable testimony of at least two witnesses.      We too  are of  the  opinion  that  on  the  facts  and evidence in  this case and on account of the large number of assailants and  victims involved  in the  case it would be a prudent exercise  to follow  the ratio evolved by this Court in Masalti  vs. The State of Uttar Pradesh, AIR 1965 SC 202, which was  reiterated  by  this  Court  in  later  decisions including the recent one [Binay Kumar Singh vs. The State of Bihar 1997 (1) SCC 283]. We extract below the said ratio:      " Where  a criminal  court  has  to      deal with  evidence  pertaining  to      the  commission   of   an   offence      involving   a   large   number   of      offenders and  a  large  number  of      victims, it  is usual  to adopt the      test that  the conviction  could be      sustained only  if it  is supported      by two  or three  or more witnesses      who give  a consistent  account  of      the incident."      Learned  counsel  for  the  appellants  contended  that before the  said formula  is applied  in this case, a little scrutiny  of   evidence  is  necessary  for  fixing  up  the reliability of  the testimony  of eye witnesses in so far as the accused  are concerned.  Learned counsel  submitted that though some  of the  accused were  identified in  the  trial court by  more than  one witness  evidence of  some of those witnesses is  unreliable and  hence such  evidence  must  be excluded in  which event  those accused  would also  get the benefit of doubt arising thereby.      A-4 (Matta Kontolu), A-5 (Baddi Chinnavadu), A-8 (Baddi Venkatappadu) were  identified in  the trial  court by three witnesses, PW-5,  PW-6 and  PW-15. But  PW-6 did not mention

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the presence  of those accused when he was questioned by the police during  investigation and  the testimony of PW-15 was disbelieved by  the trial  court due  to a  lot of  material contradictions. We  agree with  the learned  counsel for the appellants that  in such  circumstances no reliance shall be placed on  the evidence of PW-6 and PW-5 and what would then remain is  the solitary evidence of PW- 5 in regard to those three accused.  We are inclined to give the benefit of doubt to A-4, A-5 and A-8.      A-9 (Beesingi  Narayudu) and  A-12 (Matta Mallesu) were identified by  PW-10, PW-11,  PW-12 and  PW-15 in  the trial court but  the Sessions  judge has  accepted the evidence of PW-12   alone among  them and  rejected the  rest.  In  that situation A-9  and A-12  also would  get the  same  benefit. Though A-13  was identified  by PW-11  and  PW-12  the  said accused too  would be entitled to the benefit in view of the rejection of the evidence of PW-11.      Similar view  can be  adopted in  case of  A-33  (Matta Gaviresu) who was identified in the trial court by PW-27 AND PW-28 because  the evidence  of PW-28 was discredited on the crucial aspect  concerning his  presence  at  the  spot,  by contradicting him  with the statement recorded by the police under Section  161 of  the Code  of Criminal  Procedure.  By allowing the above mentioned accused to pass out through the route to  acquittal on  the strength  of the  ratio of  "two witnesses formula" the following accused cannot be convicted on the evidence in this case:      A-4 (Matta Kontolu), A-5 (Baddi Chinnavadu), A-8 (Baddi Venkatappadu),  A-9   (Beesingi   Narayudu)<   A-12   (Matta Mallesu), A-13  (Matta Ramulu),  A-33 (Matta Gaviresu), A-34 (Baddi  Thavudu),   A-35  (Matta   Butchodu),  A-37   (Baddi Venkayya),   A-41    (Kalaga   Atchayya),    A-45    (Thanni Chinnappayya), A-46  (Matta Chinnodu),  A-47 (Mata Appanna), A-48 (Matta Thavudu) and A-64 (Thanni Thavudu).We therefore, allow the  appeal in  respect of  the above  accused and set aside the  conviction and  sentence passed on them. They are acquitted. Those  among them  who are  now remaining in jail must, therefore,  be  released  forthwith  unless  they  are required in  other cases.  The appeal  as for  the remaining appellants shall stand dismissed.