26 September 1996
Supreme Court


Bench: THOMAS K.T. (J)
Case number: Crl.A. No.-000701-000701 / 1992
Diary number: 79198 / 1992






DATE OF JUDGMENT:       26/09/1996




JUDGMENT:                       J U D G M E N T      THOMAS, J.      How the  barks of  a dog could have snowballed into the murder of  a young student, is the nub of the story narrated in this  case. Police  charge-sheeted Sambasiva  Rao and his father Atchuta  Ramaiah as also another relative of them for the murder  of the  young man  (Srinivasa Rao)  and also for causing hurt  to some  others. Sessions  Court acquitted the father (Atchuta  Ramaiah), but convicted Sambasiva Rao under Section 304  (Part 2)  besides sections  326 and  324 of the Indian  Penal  Code  and  awarded  a  sentence  of  rigorous imprisonment for five years to him for the main offence. The remaining accused  was convicted  under section 324. IPC and was sentenced  to R.I.  for one  year. High Court, of Andhra Pradesh, on  appeal, convicted  Sambasiva Rao  under section 302 IPC  and sentenced him to undergo imprisonment for life. By the same judgment, the High Court set aside the acquittal of his  father and convicted him under section 326 read with section 34  of the  Indian Penal Code and a sentence of R.I. for three  years has  been awarded to him. High Court passed the same  conviction and  sentence as  against third accused also. Hence,  all the  three have  filed this appeal jointly under  section  2  of  the  Supreme  Court  (Enlargement  of Appellate Jurisdiction)  Act 1970,  and also  under sections 379 and 380 of the Code of Criminal Procedure.      During the pendency of this appeal, the old man Atchuta Ramaiah (first  accused) died.  So the appeal now remains as filed by the second and third accused.      A synopsis of the case is the following:      (Deceased) Sriniwasa Rao was the brother-in-law of PW-1 (Suryanarayana Rao)  who was  residing  with  his  wife  and children in a house situated adjacent to the house where his brothers-in-law   and   mother-in-law   were   residing   in Thummapudi  Village   (Guntur  District).  All  the  accused belonged to a different village. But for some time they were residing in  a house  situated about  200 feet away from the house of  the deceased.  On 1.7.1988,  while second  accused



(Sambasiva Rao)  was returning  home he  was confronted by a dog which  emerged from  PW1’s house. when the animal barked at  the   second  accused  he  pelted  stones  at  it.  PW-1 (Suryanarayana Rao)  came out  of his  house  and  told  the accused not  to harm  the mongrel.  This was  followed by an altercation between the two which was soon aggravated into a brawl and  PW-1’s wife and brothers-in-law (deceased) joined in it.  Second accused  left the scene giving a warning that he would avenge for the insult meted out to him.      On the  next day  (2.7.1988) second accused accompanied by his  father (A-1)  and their  relative (A-3)  reached the same place by about 11.30 P.M. Second accused called PW-1 to come out  and in response to it PW-1 came out accompanied by his wife  and  children.  Then  will  the  three  assailants attacked  PW-1   by  beating   him.  When  his  wife  (PW-2) intervened she  too was assaulted by the assailants. Hearing the hue  and cry  some others  from the  household  of  PW-1 including the  deceased Srinivasa  Rao  and  PW-3  Raghuvulu rushed to  the scene.  When the  deceased was held up by the other two  accused, A-2 inflicted a stab injury on the chest of the deceased. By then, a few of the neighbours arrived at the scene  and they  caught hold  of A-2  and  A-3.  Atchuta Ramaiah (A-1), by the time escaped from the scene but he was chased and was caught from his house and he was brought back to the scene. All the three assailants were beaten up by the furious neighbours  and finally  they were trussed up at the same place.  Police reached  the scene  and removed  all the injured. Including  the assailants, to the hospital, but the deceased succumbed to his injuries on the way.      On the  strength of  a statement  recorded from  PW-1 a crime case  (No. 60 of 1988 of Duggirala Police Station) was registered. Another  FIR was  registered as  Crime Case  No. 61/88 based  on a statement recorded from the first accused. The latter  was referred  by the  policy as "mistake of law" within a  couple of  days and  the former was charge-sheeted after completion of investigation.      Post-mortem examination  conducted on  the dead body of the deceased  (Ext.  P-8  is  the  Post-mortem  Certificate) revealed that  he sustained  a spindle shaped stab injury on the front of the chest just below the right nipple which had reached up  to the  lung causing  an incised  wound  on  the medial lobe  of the  right lung.  His  thorasic  cavity  was filled with  dark fluid  blood. The  doctor  considered  the injury as necessarily fatal.      PW 12  Doctor examined  all the other injured. He noted an incised  wound on  the right  chest of  PW 1 besides some contusions and  abrasions elsewhere.  The doctor  noticed an incised wound  on the  abdomen of  PW 2  and another incised wound on his chest. When the doctor examined PW-4 he noticed an incised wound on his right foot.      First accused Atchuta Ramaiah had a skin deep lacerated wound on  the parietal  region of  the head, and also on the below besides  a few  other contusions  elsewhere. On  X-ray examination, a  fracture on  the  left  ulna  was  observed. Injuries  on   second  accused   (Sambasiva  Rao)   included lacerated wounds on both sides as well as on the pate of his head and  lacerated wounds  on both  legs besides an incised wound on  the left  knee. X-ray  revealed a  fracture on the left tibia.  The doctor noticed as many as eighteen injuries on the  person of third accused which were either contusions or abrasions.      Sessions Court  and the  High Court  have  concurrently found that all the three accused sustained the injuries when the furious  mob attacked  them in  retaliation of what they did to PW-1 and his family members. We do not find any scope



to disturb  the said  finding nor  has that  been  seriously disputed before  us. The  trial court  and  the  High  Court concurrently found that it was the second accused (Sambasiva Rao) who inflicted the fatal stab injury on the chest of the deceased while  the other two accused held him by the hands. The evidence  on that  score is  overwhelming and we are not pursuaded to interfere with that finding either.      Learned counsel  for the appellants contended that PW-1 and his party were the aggressors and the maximum that could be found  against the second accused (Sambasiva Rao) is that he had  committed  the  offence  of  culpable  homicide  not amounting to  murder  by  exceeding  the  right  of  private defence. Alternatively,  he contended  that as  the deceased sustained the  fatal injury in a scuffle it was not intended by the  second accused  and hence the offence which he would have committed  cannot, at  any rate,  go above  section 304 (Part 2) of the IPC.      In view  of the  concurrent  finding  that  the  second accused (Sambasiva  Rao) inflicted  the stab  injury on  the chest of  the deceased while the other two were holding him, there is  little scope  for  reaching  a  finding  that  the assailants did not intend to cause the chest injury which is sufficient in the ordinary course of nature to cause death.      Therefore, the  crucial question  narrowed down  in the appeal is  whether  it  was  the  deceased  party  who  were aggressors in  the occurrence which happened on the night of 2.7.1988. Learned  Sessions Judge found that point in favour of the  accused, but  further found  that second accused had over-stepped the  permitted limit in exercise of that right. But the  High Court  differed from  the Sessions  Judge  and found that the accused themselves were the aggressors.      In reaching  that conclusion  the High Court found that second accused  left the  scene on  the previous night as an aggrieved person  as he  was badly  mauled by  PW-1 and  the deceased and  further found  that second  accused had openly proclaimed that he would settle scores soon. In that context learned  judges  made  a  reference  to  Ext.24  (the  first information statement  recorded from  first accused  Atchuta Ramaiah) which  is the  basis for  the  FIR  in  Crime  Case No.61/88) and advanced the following reasoning:      "It is significant to note that one      important fact  is suppressed  both      by the  prosecution as  well as the      defence in the course of trial with      regard to  the  happenings  of  the      incident  dated  1.7.1988.  Ex.P.24      statement of A-1 which was recorded      by PW  24 in  the presence  of  the      Medical Officer,  PW 12, shows that      apart from  the altercation between      PW 1 and his brothers-in-law on the      one side and A-2 on the other, PW 1      and   his    brothers-in-law   have      forcibly, taken away Rs. 700/- from      the pocket  of A-2.  That  fact  is      probable  because  A-2  might  have      been carrying  that day’s earnings.      Curiously, none  of the prosecution      witnesses have  spoken  about  this      fact because  they  have  illegally      snatched away  Rs. 700/-  from  the      pocket of A-2. The accused also did      not suggest this fact to any of the      prosecution witnesses  nor did they      speak of  this  fact  during  their



    interrogation under  section 313 of      the   Criminal    Procedure    Code      obviously for  the reason  that the      said  snatching  away  of  Rs.700/-      affords a  motive for A-2 to attack      PW   1   on   the   date   of   the      occurrence."      It  is  necessary  to  point  out  that  the  statement attributed to  the first accused (Atchuta Ramaiah) in Ext.P- 24 was  completely disowned by him when he was questioned by the learned  Sessions Judge under section 313 of the Code of Criminal  Procedure.  Even  assuming  that  this  was  truly recorded by the police, its utility in evidence is very much restricted by  law. A  statement in  an FIR  can normally be used only to contradict its maker as provided in section 145 of the  Evidence Act  or  to  corroborate  his  evidence  as envisaged in  Section 157 of the Act. Neither is possible in a criminal  trial as  long as its maker is an accused in the case, unless  he offers  himself to be examined as a witness (vide Nisar  Ali vs.  The State of Uttar Pradesh AIR 1957 SC 366) Kapoor  J. speaking  for the three judges bench in that decision has observed:      "A first  information report is not      a substantive piece of evidence and      can only be used to corroborate the      statement of  the  maker  under  s.      157, Evidence Act, or to contradict      it under  s. 145  of that  Act.  It      cannot be  used as evidence against      the  maker   at  the  trial  if  he      himself becomes  an accused, nor to      corroborate  or   contradict  other      witnesses. In this case, therefore,      it is not evidence."      However, another  bench of  two judges in Faddi vs. The State of Madhya Pradesh: 1964 (6) SCR 312 has stated that if the FIR  given by  the accused  contains  any  admission  as defined in Section 17 of the Evidence Act there is no bar in using  such  an  admission  against  the  maker  thereof  as permitted  under  Section  21  of  the  Act,  provided  such admission is  not inculpatory  in character. In the Judgment their Lordships  distinguished Nisar  Ali’s case  (supra) in the following lines:      "But it  appears to  us that in the      context in which the observation is      made an in the circumstances, which      we have verified from the record of      that case,  that the Sessions Judge      had  definitely   held  the   first      information report  lodged  by  the      co-accused who was acquitted, to be      inadmissible against  Nisar Ali and      that the  High Court  did not refer      to it  at all in its judgment, this      observation  really   refers  to  a      first information  report which  is      in the  nature of  a confession  by      the maker  thereof.  Of  course,  a      confessional   first    information      report cannot  be used  against the      maker when  he be  an  accused  and      necessarily cannot  be used against      a co-accused."      However, a caution has been struck by this Court (Subba Rao, Raghubar  Dayal and  Bachawat JJ.) in Aghnoo Nagesia vs



State of Bihar: 1966 (1) SCR 134, that when the statement in the FIR given by an accused contains incriminating materials and  it   is  difficult  to  sift  the  exculpatory  portion therefrom the whole of it must be excluded from evidence.      The legal  position, therefore,  is this:  A  statement contained in  the FIR furnished by one of the accused in the case cannot, in any manner, be used against another accused. Even as  against the  accused who  made  it,  the  statement cannot be  used if it is inculpatory in nature nor can it be used for  the  purpose  of  corroboration  or  contradiction unless its  maker offers  himself as a witness in the trial. The very  limited use of it is as an admission under section 21 of  the Evidence  Act against  its maker alone unless the admission does not amount to confession.      In this  case Ext.  P-24 cannot,  undoubtedly, be  used against the  second accused  or the  third accused.  As  the first accused  is not alive now, it is unnecessary for us to exercise our  mind as  to the  extent to which it could have been used  against first  accused himself.  However, in this context  we   may  observe  that  none  of  the  prosecution witnesses had  a case  that any cash or even any property of the accused  had been taken away by PW-1 or his party on the previous night.  The High  Court, therefore,  went wrong  in relying on the aforesaid statement contained in Ext. P-24 to reach the finding that accused had a strong motive to launch an attack on PW 1 and his men on the night of occurrence.      On the  other  hand,  there  are  certain  other  broad features in evidence to assume with some degree of certainty that PW-1 and his people would have been the aggrieved party at the  close of the first day’s scirmishes and consequently they would  have had  the animus  to  retaliate.  A  careful assessment of  the entire  gamut of  previous night’s events would lead to that inference.      PW-1  in  cross-examination  said  that  despite  their numerical strength  on the first day’s occurrence (they were three as  against second  accused who  was then  alone)  his party received  more blows  from second  accused  than  what could be  given back. His wife PW-2 said that second accused dealt two  blows with  his fist on her husband as well as on her brother  (the deceased) while the victims could not fist the second accused in return. PW-5 (brother of the deceased) has further  stated that  second accused  succeeded in over- powering the deceased on the first night and inflicted a few blows on him and he showered PW-1 with lot of abuses whereas nothing could  be done  in return to the second accused, not even hurling abuses.      If  what  happened  on  the  previous  night  could  be discerned from the above evidence it is difficult to believe that PW-1  and party  would have  retreated from  the  scene without any animus towards second accused or that the latter would have  left the  scene saying  that he  would retaliate next day.  In the  analysis  we  think  that  it  was  quite importable that  PW 1  would have  coolly responded  to  the challenge hurled  by the second accused from the road on the second day.      The next  broad feature is, the evidence shows that the normal route  of the  accused for  going home  was along the road lying  in front  of PW-1’s  houses. (The  house of  the accused is  situate only 200 ft. away therefrom.) It is also in evidence  that they used to go back home after their work by this time.      In the light of the above broad features perceived from the evidence  the view taken by the Sessions Court that PW-1 and deceased  would have  been waiting  to retaliate for the previous night’s  occurrence seems  to  be  reasonable.  We,



therefore, agree  with the  learned Sessions  Judge that the aggressor, in  all probabilities,  would have  been PW-1 and his party.      The three  accused had  sustained all the injuries only when the  furious neighbours  manhandled them.  As  the  two courts below  have uniformly  found that  point against  the accused we  do not  think that the accused had till then any cause to  entertain reasonable  apprehension  in  mind  that death or  grievous hurt would ensue to them from PW-1 or the other members of his family. None of them was armed with any lethal weapon.  We have,  therefore, no  doubt  that  second accused, by  inflicting the fatal injury on the deceased had exceeded the  limit of  right of  private  defence.  He  is, therefore, liable to be convicted under section 304 (Part I) of the  Indian Penal Code. However, we take into account the fact that  A-2 received  a lot  of injuries from the furious mob, for  determining the  quantum of  sentence. We  are  of opinion that the sentence of RI for five years passed by the Sessions Court on second accused would be sufficient to meet the ends  of justice  in the circumstances of this case. But the third  accused cannot  be found guilty of any offence as his acts  had not  gone beyond the limit of right of private defence.      In the  result, we  allow this  appeal  and  alter  the conviction of the appellant Sambasivarao (second accused) to section 304  (Part I)  of the Indian Penal Code and sentence him to undergo RI for five years. Needless it is to say that if he has already completed the said sentence he is entitled to be  released forthwith unless he is required in any other case. However,  we set  aside the  conviction  and  sentence passed on  the third  accused and  acquit him. His bail-bond shall stand discharged.