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PETITIONER: PRATAPANENI RAVI KUMAR ALIAS RAVI AND ANOTHER

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT:       08/07/1997

BENCH: G. T. NANAVATI, S. P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT: (With Criminal Appeal Nos. 412 and 413 of 1991)                       J U D G M E N T NANAVATI, J.      These three appeals arise out of the judgment and order passed by  the High  Court of  Andhra Pradesh  - in Criminal Appeal No.933  of 1989.  As they have arisen out of the same judgment, they  were heard  together and  are disposed of by this common  judgment. Criminal  Appeal No.411  of  1991  is filed by  original accused  Nos.4 and  6 who  were convicted under sections 148, 452 and 302 read with 149 IPC along with accused Nos.1 to 6, 7 to 10 and 13 and whose convictions and order of  sentence have  been confirmed  by the  High Court. Criminal Appeal  No.412 of 1991 is filed by original accused Nos.8 and  10 whose conviction under section 324 IPC only is confirmed by  the High Court. Criminal Appeal No.413 of 1991 is filed  by the  State as accused Nos.1 to 3,7 to 10 and 13 came to  be acquitted  by the  High Court  for the  offences punishable under  sections 148,  302 read  with 149  and 452 read with 149 IPC.      In all  14 accused  were tried for committing murder of one Veerabhadram  of Kamanchikal Village and causing hurt to his wife  Saraswati, in  the Court  of  the  Sessions  Judge Khammam, in  Sessions  Case  No.121  of  1988.  It  was  the prosecution case  that Village  Kamanchikal is  divided into two  political   factions.  Veerabhadram   belonged  to  the Communist Party  of India  and the  accused belonged  to the opposite faction CPI(M) and TDP. There were previous clashes between the two factions which had led to filing of criminal cases and  posting of  a police  party in  that village.  On 20.9.1987 at about 6 a.m there was an attempt on the life of one P.  Anantharamulu   alias Babu,  brother of accused No.1 and a  member of the CPI(M) on the outskirts of that village but towards  adjoining village  Ramannapet. As a retaliatory measure A-1  along with  A-2 to A-14 who belonged to CPI and TDP formed  themselves into an unlawful assembly, the common object  of   which  was   to  cause  death  of  Veerabhadram (hereinafter referred  to as  the deceased). Thereafter they went to  the hut  of the  deceased armed  with axes, knives, spears and  sticks at  about 7  a.m. Seeing  this mob of the accused two  daughters of  the deceased  who   were  sitting

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outside the  hut alerted  him. So  he immediately bolted the door from  inside. after  reaching there, A-1, A-2, A-4, A-6 and A-8  broke open  the door  and went inside the hut while others  remained  waiting  outside  in  the  courtyard.  The accused after entering the hut said that their party man was attacked and  thereafter they  by dragging the deceased took him out  of the  hut in  the courtyard. All the accused then started beating  the deceased.  When Saraswati  PW.1 wife of the deceased  tried to intervene she was beaten by the stick portion  of   their  spears  by  A-B  and  A-10.  When  PW.3 Venkatalaxmi and  other minor  daughter Vijaya tried to save their  father   they  were   pushed  away   by   A-1.   When Venkatakrishnan PW.2  and Aluri  Raja PW.5 pleaded for mercy and tried  to intervene  they were  threatened with  serious consequences. All  the accused  thereafter left  that  place believing that  the deceased  had died.  At about  6.40 a.m. Prabhakar Rao,  (PW.20) who  was Sub Inspector of Police and Incharge of Khammam Police Station, had received information regarding assault  on Anantheramulu  and the tense situation in the  village. So  he went to Ramannapet and reached there at about  6.45 a.m. He saw injured Anantheramulu being taken in an  autorickshaw So  he directed  them to take him to the Government hospital.  He also came to know about the assault on the  deceased, So  he proceeded  to  village  Kamanchikal reached the hut of the deceased at about  7 a.m. As he found that  the   condition  of   the  deceased   was  serious  he immediately  arranged   a  rickshaw  and  sent  him  to  the Government hospital  at Khammam.  He recorded  his statement (Exh. p.7)  in the hospital at about 9 a.m. As the condition of  the   deceased  continued   to  be   serious  his  dying declaration (Exh.  p.5) was  also recorded  by  the  Munsif- Magistrate of  Khammam at 10 a.m. The deceased died at about 10.45 a.m.      All the  accused were  accordingly tried for commission of the  offences punishable  under sections  147,148,452,302 read  with   149  IPC.  In  order  to  prove  its  case  the prosecution relied upon the two dying declarations Exhs. p.5 and p.7  made by  the deceased  and the  evidences  of  eye- witnesses  PW.1   Saraswati,  PW.2  Venkatakrishnan,  PW.  3 Venkatalaxmi PW.5  Aluri Raja and PW.6 Rama Rao. The learned trial judge  found both  the dying declarations Exh. p.7 and p.5 reliable and sufficient for the purpose of believing the presence of the accused and the role played by them. He also found the  evidence of PWs.1, 2, 3 and 5 as consistent and a reliable as  it did  not suffer from any infirmity and their presence was  natural at  the scene  of the  offence at that time. Though  the witnesses belonged to a rival faction they had  no  personal  enmity  with  any  of  the  accused  and, therefore, the learned judge thought it safe to accept their evidence, Accordingly  he believed  the presence  of all the accused  and   their  participation  in  Commission  of  the offence. However, by way of extra caution he gave benefit of doubt to  A-5, A-11,  A-12 and A-14 and acquitted them as no specific overt acts were attributed to them. He convicted A- 1 to  A-4, A-6  to A-10 and A-13 for the offences punishable under sections  148, 452  and 302 read with 149 IPC. He also convicted A-8  and A-10  under  section  324  IPC.  For  the offence punishable  under section  324  A-8  and  A-10  were sentenced to suffer RI for six months.      The accused  challenged their  conviction and  sentence before the  High Court.  No appeal  by the  State was  filed against the  acquittal of A-5, A-11, A-12 and A-14. The High Court after  reappreciating the  evidence concurred with the trial court  that the incident had taken place partly inside and partly  in front  of the  hut of  the deceased. The High

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Court also  agreed with  the finding of the trial court that the evidence  of eye witnesses PW.1, PW.2, PW.3 and PW.5 was reliable and  trustworthy and their presence at the scene of the offence  could not  be doubted.  However, in view of the discrepancy noticed  by lt  in the  two  dying  declarations namely that while in Exh.P.7 the deceased specifically named 8 accused  only while  in  Exh.P.5  he  had  named  all  the accused, and  because of  the fact  that  the  eye-witnesses belonged to  one political  faction and the accused belonged to the  other, the High Court thought it "just and proper to go according  to the  theory of  overt act"  and applied the test "that  there should  be at  least the  evidence of  two direct  witness  regarding    specific  overt  acts  of  the accused", and  on that basis confirmed the conviction of A-4 and A-6  only. It   acquitted  all  other  accused  for  the offences punishable  under sections  147, 148,  452 and  302 read with 149 IPC. It confirmed the conviction of A-8 and A- lO under  section 324 IPC for causing hurt to Saraswati PW.l but  reduced   the  sentence   to  that  already  undergone. Aggrieved by  this judgment  and order  the accused  and the State have filed these appeals as stated above.      Having considered the rival submissions and scrutinised the evidence  of PWs.l,  2, 3  and 5 we find that the courts below were  right in  accepting them  as  eye-witnesses  and treating their  evidence as reliable and trustworthy. Though the eye-witnesses were closely related to the deceased there is no  material on record to show that they had any personal enmity with  any of the accused. It was only out of abundant caution that the trial court did not convict A-S, A-11, A-12 and A-14 on the basis of their evidence as no specific overt acts were  attributed to them by any of them. The High Court also, again  by way  of abundant  caution, thought it fit to confirm the  conviction  of  only  those  accused  who  were involved by  more than two eye-witnesses. As PWs.1, 2, 3 and 5 had attributed overt acts to accused A-4 and A-6 so far as the assault  on the  deceased was concerned their conviction was confirmed. As their evidence was consistent with respect to the  assault on  PW.1 by  A-8 and  A-10 their  conviction under section  324 was  also confirmed.  What the High Court failed to   appreciate  and consider  was that all those who trespassed into  the house  of the deceased, dragged him out and assaulted  him and his wife were members of the unlawful assembly and  what they  did was  in  prosecution  of  their common object.  The evidence  of PW.3  Venkatalaxmi and PW.5 Aluri Raja  clearly establishes  that a mob of persons armed with weapons  was  seen  rushing  towards  the  hut  of  the deceased. Their  evidence and  that of  PWs.1 and  2 further establishes that  on  seeing  them  coming  in  this  manner Vankatalaxmi and Vijaya cried out loudly and, therefore, the deceased and PW.1 closed the door of their hut and bolted it from inside.  The evidence  of all  these witnesses  further establishes that  A-1, A-2,  A-4, A-6 and A-8 broke open the door of  the hut  and went  inside. Evidence of PW.1 and her brother PW.2  clearly discloses  the object  with which  the accused had  come there.  They have  stated that immediately after entering  into the  hut these  accused stated  to  the deceased that  their man  was beaten.  They had then dragged him out  of his hut in spite of the requests made by the two witnesses to  leave him.  Both of  them were  pushed away by those accused.  The evidence  of the  eye-witnesses  further establishes that  as soon  as the deceased was taken outside they and  other accused  had  started  assaulting  him  with spears, axes and  sticks. That part of their evidence stands corroborated    by  the  medical  evidence  also.  From  the evidence  of  the    witnesses,  though  it  is  not  wholly

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consistent, it  appears that  A-1, A-4, A-6 and A-7 had axes with them,  A-2, A-3, A-5, A-8, A-9 and A-10 had spears, and others had  carried sticks.  Thus the  manner in  which they came and acted after reaching the hut of the deceased leaves no doubt  that all  those who had assaulted the deceased and PW.1 Saraswati were the members of the unlawful assembly and that the  death of the deceased was caused in prosecution of their common object. It may be stated that all the witnesses have  consistently   referred  to   the  presence   of   and participation by accused Nos.1 to 4, 6 to 10 and 13.      The High  Court committed  an error  in not viewing the incident as  a whole  and failed to appreciate that the acts of breaking  open the  door of  the deceased,  dragging  him outside and  beating him  were committed  in prosecution  of their common  object and  beating of  P.W.1 was  also an act which members  of the  unlawful assembly can be said to have known as  likely to  be a  committed in prosecution of their common object.  Therefore, on  the basis of the test applied by the  High   Court itself  the High  Court ought  to  have convicted A-1,  A-2, A-8  and  A-10  also.  The  High  Court wrongly acquitted  them by overlooking the applicability and effect of section 149 IPC.      Another reason  given by  the High  Court for insisting upon the  test of  specific involvement  by  more  than  two witnesses  was   that  the  deceased  in  his  second  dying declaration had  made an  improvement over  his first  dying declaration.  In  his  first  dying  declaration  which  was originally taken  as FIR, the deceased named A-1 to A-6, A-8 and A-9 specifically and further stated that there were 5 or 6 other  persons of  the village.  It is significant to note that in  this dying declaration also the deceased had stated that the accused were armed with axes, spears and sticks and that he was beaten by all the three types of weapons and one of the  accused had  thrown a  big stone on his legs. He had also referred  to the  presence of his wife and his brother- in-law PWs.1  and 2  inside his hut and their request not to beat him. The eye-witnesses have consistently stated that it was A-13  who had  thrown the  stone  on  the  legs  of  the deceased. In  the second dying declaration Exh.P.5 which was recorded by  the Munsif-Magistrate at about 10 a.m., half an hour after  his statement  was recorded  by the  Police,  he specifically named A-1 to A-13 as the persons who had beaten him. He  referred to  A-1 to A-5, A-7 to A-10, A-13 and A-14 as the persons who had given blows with the axes and spears. When he  was asked  by the  Magistrate as  to whether he had anything further to say, he stated that A-6 had caused a cut injury and  that A-ll  and A-12  had also  beaten him.  This dying declaration  has been  treated by the High Court as an improvement over the earlier statement made by the deceased. It may  be stated that the trial court specifically recorded a finding,  rejecting the  defence contention  that the  two dying declarations  were tutored.  Another thing to be noted is that  soon after  the assault  on him  the  deceased  had become unconscious  and that  he regained  consciousness  at about 9.30  a.m.  in the hospital after he was given medical treatment.  As   soon  as  he  regained  consciousness,  his statement came  to be  recorded by the sub-Inspector who was already in  the hospital  by that  time. There is nothing no record  to  show  that  in  between  the  recording  of  the statement of  the deceased  by  the  Police  and  the  dying declaration by the Magistrate nay one was allowed to go near the deceased.  The evidence of the Magistrate and the doctor rules out  the presence  of any  one else  at  the  time  of recording of  the second dying declaration Exh. P. 5. In our opinion, further  details given  by the  deceased could  not

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have been  treated as  an improvement.  The High  Court has, therefore, committed  a grave  error in applying the test of involvement by  two witnesses  on this  ground. It  is  also significant to  not that  presence of  the other accused who were not named in the FIR was independently disclosed by the eye-witnesses also.  On close  scrutiny  of  the  two  dying declarations we  find that  there was  no attempt on part of the deceased  to make  any improvement  in the  second dying declaration and  thereby try to involve some more persons as the assailants.      The evidence  of the  eye-witnesses and  the two  dying declarations clearly  establish that A-1 to A-4, A-6 to A-10 and A-13  and even  the accused acquitted by the trial court were members  of the unlawful assembly, the common object of which was  to cause death of Veerbhadram. Therefore, whether all of them had beaten the deceased or not was really not of causing death of Veerabhadram. There being no appeal against the acquittal  of A-5,  A-11, A-12 and A-14, the question of disturbing their acquittal does not arise.      We, therefore,  allow the  State appeal,  set aside the judgment and  order of acquittal passed by the High Court so far as  A-1 to  A-3, A-7  to A-10 and A-13 are concerned and confirm the  order of conviction and sentence passed against them by  the Session  Court. Conviction  and sentence of A-4 and A-6  are confirmed.  Accordingly the  appeals  filed  by accused being  Criminal Appeal  Nos. 411 and 412 of 1991 are dismissed and  Criminal Appeal  No. 413 of 1991 filed by the State is allowed.