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CASE NO.: Appeal (crl.) 478  of  1998

PETITIONER: KOTHAKALAVA NAGA SUBBA REDDI AND OTHERS.

       Vs.

RESPONDENT: THE PUBLIC PROSECUTOR HIGH COURT OF A.P.

DATE OF JUDGMENT:       28/03/2000

BENCH: K.T. Thomas, & M B Shah.

JUDGMENT:

Shah, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   By  the judgment and order dated 2.3.1998 the High Court of  Andhra Pradesh at Hyderabad in Criminal Appeal No.920 of@@            JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 1996  convicted  the appellants and reversed  the  acquittal@@ JJJJJJJJJJJJJJJJJJJJ order  passed  by  the  IInd Additional  Sessions  Judge  in Sessions  Case  No.   13 of 1992.  Before the  trial  court, there  were  six accused in all.  The High  Court  convicted A-1,  A-2,  A-3  and A-5 for the offences  punishable  under Sections 148 and 302 read with Section 149 IPC and sentenced them  to  undergo R.I.  for life and also to pay a  fine  of Rs.1,000/-  each  in  default  of payment  of  fine,  simple imprisonment  for  six months.  A-4 and A-6 were  acquitted. That conviction order is challenged in this appeal.

   It  is  the  prosecution version that  on  26.9.1990  at around  10.30 p.m.  on the outskirts of Gangireddipalli near coconut  garden,  accused committed the murder  of  deceased Rachapalle  Devachandra  Reddy.  The alleged motive is  that accused   No.1  resident  of   Moramkindapalli   hamlet   of Guriginjakunta village was dealer of Fair Price shop of that village.   He  was committing certain  irregularities  while distributing essential commodities.  The villagers including the  deceased lodged a complaint against A-1 to the  R.D.O., Cuddapah.   On  the basis of the said complaint, the  R.D.O. suspended  the dealership of A-1 and in his place  appointed P.W.5  Sadhu Ananda Reddi of Yerrakalvapalli as a  temporary dealer  of the Fair Price shop of that village.  As a result of suspension of his dealership, A-1 bore grudge against the deceased.   Abbavaram Ramachandra Reddi P.W.1 is the brother of the wife of the deceased.  It is the say of P.W.1 that he went to the residence of the deceased on his request to help him  in his harvesting activity of Sericulture crop prior to the  date  of the incident;  on 26.9.1990 at 8.00  a.m.   he along  with  deceased  and  P.W.10 boarded the  RTC  bus  at Mallapalli  village to go to Rayachoti.  After getting  down at Rayachoti bus stand at 9.00 a.m., they met one Sadhu Anna Reddi  (PW5).   All  of them took coffee at the  bus  stand.

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Thereafter, P.Ws 5 and 10 went to M.R.Os office, Sambepalli to lift rice and sugar as P.W.5 was given dealership in Fair Price  shop  at  village   Guriginjakunta.   P.W.1  and  the deceased  went  to the office of Sericulture at about  10.30 a.m.   from  where they were directed to come back  at  1.30 p.m.  Hence after taking meals they went back to that Office at  1.30  p.m.  They remained in the Office till  3.00  p.m. Thereafter they came back to the bus stand, waited for Sadhu Anna  Reddy  and Settipalli Venkataramanareddi (P.W.s 5  and 10)  who came there at about 4.00 p.m.  All of them went  to godown at about 5.00 p.m.  They returned at the bus stand at 6   p.m.   From  there  they   again  went  to  the  Revenue Inspectors  house [Pradeep Kumar P.W.12] and remained  with him  till  8.00 p.m.  Thereafter, they went to the house  of Bhaskar Reddi (P.W.7) who was working as a Head Clerk in the Revenue  Inspectors office at Sambepalli.  From that place, all  of  them returned to the bus stand at 9.30  p.m.   They boarded  bus in order to go to village  Gangireddigaripalli. Bus  tickets were purchased by P.W.5 for all of them.  P.W.5 got  down  at village Kathivaripalli after handing over  the bus  tickets  to P.W.10.  All the three got down at  village Malapalli   at   10.15   p.m.     For   going   to   village Gangireddigaripalli,  they proceeded on the cart track.   It is  the say of P.W.  1 that he was having a torch bearing  3 cells  and the deceased was proceeding 5 yards ahead of both of  them.   When the deceased was going in his garden,  they heard  the sound and on inquiry by the deceased, they  found accused  Nos.  1 to 6 with deadly weapons.  This was noticed after  focussing torch light on them.  It is the say of P.W. 1  that  accused No.  1 was armed with spear, A2 and 3  were having hunting sickles, A4 and 5 were armed with daggers and A6 was armed with a metallic stick.  Thereafter, the accused surrounded  the  deceased  and started assaulting  him  with their  respective  weapons.   On receipt  of  injuries,  the deceased  fell down.  When they tried to intervene and asked as to why they were attacking the deceased, accused tried to attack  the  witnesses and chased them, but they  ran  away. After reaching the house of the deceased they informed about the  incident to the wife and the children of the  deceased. All  of  them went at the spot and found the  deceased  dead having multiple bleeding injuries.

   It is the say of the eye-witnesses that at night time as there  was  no  transport facility available to  go  to  the police  station which is at a distance of 16 k.ms.  from the place  of incident, P.W.  1 boarded the RTC bus in the early morning  at 5.30 a.m., reached the police station and lodged the  FIR  at  7.30  a.m.  At about  8.00  a.m.,  the  Circle Inspector  came to the police station and visited the  scene of  offence at about 9.30 a.m.  At the scene of offence, the statements  of  witnesses  were recorded.   The  I.O.   held inquest on the dead body at about 11.30 a.m.  He also seized blood  stained  clothes of the deceased and  other  articles like torch light.

   After  appreciating  the evidence, the learned  Sessions Judge  acquitted  the  accused.  As against this,  the  High Court reversed the said acquittal and convicted four accused as  stated  above.  The question for consideration  in  this appeal  is whether the High Court was justified in reversing the  acquittal  order passed by the learned Sessions  Judge. It  has been contended that the High Court ought not to have relied  upon  the  evidence of P.Ws 1 and 10.   As  per  the prosecution  version, P.Ws 1 and 10 are eye-witnesses to the occurrence.   If their evidence is relied upon, then it  can

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be  stated  that  the  Sessions Court  materially  erred  in acquitting  the accused who were known to the witnesses  and were identified by them at the scene of offence by focussing torch  light.   Therefore, we have to find out  whether  the High  Court  was justified in relying upon the  evidence  of P.Ws 1 and 10.

   As  stated,  for  the  assault on the  deceased  by  the accused,  P.W.1 narrates the incident involving accused Nos. 1  to 6.  However, P.W.  10 has deposed that he had  noticed six  persons out of whom he could identify only accused Nos. 1  to 3 and 5.  Considering this aspect, accused Nos 4 and 6 were  given benefit of doubt by the High Court.  With regard to  the  weapons used, both the witnesses have  specifically stated  that A-1 was armed with spear, A2 and A3 were  armed with  hunting sickles and A5 was armed with dagger and  they assaulted  the deceased with their respective weapons.   The evidence  of these witnesses with regard to the assault gets corroboration from the FIR which was lodged at 7.30 a.m.  on 27.9.1990  and  injuries  received by the  deceased  as  per medical  evidence.  It is to be stated that the inquest  was held  at  the scene of offence at about 11.30 a.m.  P.W.   9 Dr.   Abdul Khuddus who conducted the postmortem examination on  27th itself, in all found 18 injuries on the  deceased-8 incised  wounds,  5 stab injuries and 2 abrasions.   Further the  evidence  of P.Ws.  1 and 10 that they had  gone  along with  the  deceased  to village Rayachoti and came  back  to village  Malapalli  at  about  10.15 p.m.   on  the  day  of incident  is  also  corroborated by the  evidence  of  other witnesses.

   For  this purpose, we would first refer to the  evidence of  P.W.5 Sadhu Anna Reddi who was given license as a dealer of  a  Fair  Price  Shop  at  village  Guriginjakunta  after suspending  the license of accused No.1.  It is his say that on the complaint by him as well as the deceased, the RDO had suspended  the  Fair Price Shops dealership of A1  and  had given  a  temporary dealership of that shop in that area  to him.   It  is his further say that on 25.9.1990 he  went  to RDOs  office and had deposited Rs.11,000/- in the office of MRO.   Thereafter he went to the house of the deceased where P.W.   1 was also there.  On 26.9.1990, he went to Rayachoti by morning bus.  Thereafter P.W1, Venkataramana Reddi P.W.10 and the deceased also came there by 9.00 a.m.  At about 4.30 p.m.,  he along with P.W.1, deceased and P.W.10 went to  the godown  at  Rayachoti  and  lifted   the  rice  in  tractor. Thereafter  all  of  them  went  to  the  house  of  Revenue Inspector,  Sambepalli  and  inquired about  the  manner  of maintenance  of records.  From there they went to the  house of Bhaskar Reddi, a Clerk of MRO and after talking with him, they  came  back to Rayachoti bus stand at 9.00 p.m.  It  is his  say that he had purchased bus tickets for all of  them. He got down at his village after handing over the tickets to PW10.   Thereafter  he  learnt that  Devachandra  Reddy  was murdered.   So  he went at the spot at about 11.00 p.m.   He has  clarified that his village is at about 4 furlongs  from the  village of the deceased.  This witness has also  stated that  on  25.9.1990, accused No.  1 threatened  that  before distribution  of  rice,  the head of the deceased  would  be removed.   On  this aspect, in the cross examination he  has stated that A1 had given the said threat three days back and he  has not advised the deceased to report the matter to the police.    He  has  also  denied   the  suggestion  in   the cross-examination that no such threat was given.

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   The next witness is P.W.6 M.  Nagaiah who was working as MRO  (Mandal Revenue Officer), Sambepalli.  According to him he  knew  A1  and A2 as well as P.Ws 1, 5 and  10.   He  has stated  that  A1  was having Fair Price Shop  for  about  10 years.  On instructions of the Joint Collector, Cuddapah, he conducted  inquiry about the activities of A1 in respect  of his  Fair  Price  shop  and had sent a report  to  the  said authority  in  the month of June 1990.  On the basis of  the said  report,  dealership  of  Fair Price  shop  of  A1  was suspended  and temporary licence was given to P.W.5.  He has corroborated  the  prosecution version that on the  date  of incident  P.Ws.5 and 10 came to his office with demand draft for  the  purchase of rice and sugar for the said  shop  and left  the  office in the afternoon on the same day.  He  had also  issued  release orders of the quota.  This  aspect  is further  corroborated  by  P.W.  7, Bhaskar  Reddi  who  was working as a Head Clerk in the Revenue Inspectors Office at Sambepalli  at  whose  house the witnesses  along  with  the deceased  had gone on 26.9.1990 at about 7.00 p.m.  and also by  P.W.12  Pradeep Kumar who was working as Mandal  Revenue Inspector  who  saw them together at the godown where  P.W.5 came  for  lifting  rice for food grain shop in  a  tractor. Another  independent  person  who corroborates  the  say  of P.Ws.1  and  10, is P.W.8 G.  Ramachandra who is not at  all connected  with the deceased or the witnesses.  P.W.8 was  a RTC bus conductor at Rayachoti depot.  It is his say that at about  9.30  p.m.   on 26.9.1990, the last trip of  the  bus started  from  Rayachoti for going to Kotagadapalli.  It  is his  further  say that he was knowing P.W1, PW 5, PW 10  and the  deceased  who  boarded the bus in the last  trip.   PW5 purchased  the tickets for him and the other three  persons. PW  5 got down from the said bus at earlier bus stop and  at the  next  stop, PW 1, deceased and PW 10 got down at  about 10.15  p.m.  It is his say that thereafter bus went ahead at its  destination.  On the next day morning, the bus  started at  about 5.00 a.m.  for going to Rayachoti.  On the way, PW 1  Ramachandra  Reddi got into the bus at Malapalli and  got down   at  Motakatla  village.    P.W.1  informed  him  that Devachandra   Reddi  was  murdered.   He  has   denied   the suggestion that at the instance and threat by the police, he was  deposing  falsely  and  mentioning  the  names  of  the prosecution  witnesses  and  other   particulars.   In   his cross-examination  nothing  material  is  elicited  for  not believing his say.  In our view, P.W.  8 a bus conductor, is absolutely  independent  witness neither connected with  the accused nor with the witnesses.  He was knowing the deceased as  well  as  the  other witnesses as deposed  by  him.   He corroborates  the main witness, P.W.1 on the aspect that  he boarded the bus at 5.30 a.m.  on 27th September for going to the  police  station  for  lodging the  FIR.   He  was  also informed  by  the witness about the murder of the  deceased. His  evidence further reveals that deceased along with three other  witnesses  boarded  the said bus from  Rayachoti  for returning  to  their  village  and that PWs 1,  10  and  the deceased were together and they got down from the bus at the same  time.  This establishes the presence of the  witnesses till  10.15  p.m.   on 26th September and the  incident  had occurred  at about 10.30 p.m.  Admittedly, P.W.1 is resident of  a  different village which is at a distance of 64 to  70 kms.   In  this  set of circumstances, it  is  difficult  to accept the contention of the learned counsel for the accused that  P.W.   1 came subsequently at the scene of offence  or was  called  for  by  the widow of the  deceased  after  the murder.   It is also to be stated that R.  Ammanamma,  widow of the deceased (P.W.2) has also corroborated the version of

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P.W.   1  and P.W.10.  She has also stated that P.W.  1  had come  to  their  house  with  regard  to  their  sericulture cultivation.   On the date of incident, deceased along  with P.W.   1  and  P.W.  10 had gone to Rayachoti and  at  about 10.15  p.m.  she was informed by the witnesses that  accused were  assaulting the deceased.  She along with the witnesses and her daughter went at the spot and found the dead body of her  husband lying in a bleeding condition.  She has  denied the  suggestion  in the cross-examination that she  was  not informed by P.W.  1 and P.W.  10 with regard to the death of her  husband.   P.W.   3, R.  Sridevi, the daughter  of  the deceased  also  supports  the prosecution  version  on  this aspect.

   Learned  senior  counsel made a forceful attempt on  the strength  of  total absence of any injury on the  person  of P.W.-1,  to  contend  that  if the  accused  were  the  real assailants  it was extremely improbable that the  assailants would  have  spared  PW-1 altogether from  the  attack.   To bolster  up  the  said  contention  learned  senior  counsel invited  our attention to a further fact that PW-1 was  also one  of  the signatories to the petition filed  against  the first accused for revoking the dealership conferred on first accused  as  an  Authorised  Ration  Dealer.   Counsel  also pointed  out  that PW-1 did not make even a little cry  when his  brother-in-law  (deceased) was brutally attacked  by  a gang of armed assailants.

   As  against those arguments Ms.  T.  Anamika, who argued for the respondent State, contended that the role of PW-1 in the  memorandum  presented against the dealership  of  first accused  was very minimal and that too he was only one among the  very  many  signatories  therein, and that  it  is  not necessary   that  the  assailants   should  have  taken  any particular  notice  of the insignificant role of PW-1.   Ms. T.   Anamika further contended that the venue of the  attack being  within  the  vicinity of the house of  the  deceased, indicates that the assailants were prowling for the deceased and  not anyone else.  According to the counsel it is  quite possible   that  first  accused   would  have  brought   his co-assailants  to the scene for launching the attack on  the deceased  and  not anybody else, particularly  since  nobody would  have expected PW-1 to be present at that venue.   Ms. Anamika  also  pointed  out that the widow of  the  deceased testified  to the fact that soon after the occurrence it was PW-1  who rushed to her house and reported to her about  the incident.  Learned counsel contended that if the evidence of PW-1  can  be believed it would be the best  assurance  that PW-1 was at the scene then.

   We find considerable force in the above contention.  The features highlighted by Ms.  Anamika are quite sufficient to override  the  contentions made against the  probability  of PW-1 being a witness to the occurrence.

   Even regarding the fact that PW-1 did not make a hue and cry  at  the  scene,  it   cannot  be  counted  against  the credibility  of  his  testimony,  for, he  would  have  been dump-founded  at the sight of the ghastly attack made on his brother-in-law.   That  apart, he would  have  instinctively avoided going forward at that stage.

   Shri  P.P.   Rao,  learned senior counsel  then  made  a strong  argument based on want of sufficient light for  PW-1 and  PW-10, to identify the assailants correctly.  We cannot

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overlook  a  broad  fact that the light available  then  was sufficient  for  the  assailants to correctly  identify  the victim.   If that be so, the same light which was  available would  be  sufficient for a watching and  curiously  looking witness to identify the assailants in the crime.

   Mr.   P.P.  Rao, learned Senior Counsel arguing for  the appellants  further submitted that no reliance can be placed on  the evidence of P.W.1 because there was no necessity for him  to  accompany  the deceased at night time,  as  he  was resident of a village which was approximately 70 kms.  away. The  prosecution  even though examined three  officers  from revenue   department  to  establish   the  presence  of  the witnesses  at  Rayachoti, has failed to examine any  officer from  Sericulture Department where the deceased had gone for taking   proper  advice;   that   the  prosecution  has  not explained  as to why P.W.  5 purchased the tickets for  all; that  P.W.  10 did not state before the police that P.W.   5 had purchased tickets for all that the Investigating Officer did  not make any entry about the tickets being thrown away; that  the  prosecution  has failed to prove as  to  why  the witness  had  taken  torch light while  going  to  Rayachoti village.

   In  our  view, those submissions require to be  rejected mainly  on  the  ground  that  P.W.  1  is  related  to  the deceased.   His  going  and  residing at the  house  of  the deceased  is  corroborated by the evidence of P.Ws 2 and  3. P.W.2  has specifically deposed that P.W.1 had come to their house  before few days of the incident.  They were  together at  Rayachoti is also established by independent  government officers.   Not  only this, an independent witness,  namely, the bus conductor has specifically deposed that he saw along with  the deceased P.Ws 1, 5 and 10 in the bus which started form   Rayachoti  at  about  9.30   p.m.   In  this  set  of circumstances, it is difficult to accept the contention that P.W.1  was  not  at all present at the time  of  occurrence. Presence   of   P.W.1,  therefore,   cannot  be  termed   as impossible.   Further, some variations in the story of P.W.1 and  10 as to who was walking ahead and who was following at the  time of attack would not make their evidence in any way doubtful.   Such types of variations are natural unless  the witnesses  are tutored.  Further, the reason for purchase of bus-tickets  by  P.W.5 is not required to be  explained  and this  submission does not require any further consideration. In  any case, it depends upon the relation and the amount of bus-tickets  is absolutely small one.  Similarly, the reason for  keeping the torch is also not required to be stated  as it  depends upon the practice of villagers who are  required to  travel  at  night time in the area  having  no  electric lights or street lights.

   The learned counsel further submitted that grounds given by  the trial court for not believing the evidence of P.W.10@@               JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ were  reasonable  and, therefore, the High Court  materially@@ JJJJJJJJJJJJJJJJJJJJJJ erred in interfering with the acquittal order.  In our view, the  said  submission is without any substance  because  the trial  court materially erred in treating this witness as  a hostile  witness  only  on  the   ground  that  the   Public Prosecutor  after  obtaining  the  permission  had  asked  a question  with regard to the role played by the accused Nos. 4  and 6 on the basis of his police statement.  In our view,

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there  was  no  reason for the learned Judge to  treat  this witness  as  not  supporting the prosecution case.   On  the contrary,  this would mean that the witness was truthful and he  has not supported his police version with regard to  the identification of accused Nos.  4 and 6.  From this also, he cannot  be dubbed as a liar to whom no credence can be given as  held  by the learned Sessions Judge.  In our  view,  the approach  of  the  learned Sessions Judge in  treating  this witness  as a hostile witness and terming him as a liar  is, to say the least, wholly unjustified and unreasonable.

   Mr.   Rao,  learned senior counsel further  pointed  out that  the  Sessions  Judge  has  rightly  not  believed  the evidence  of P.W.  8 who is a bus conductor by holding  that P.W.   8 was required to attend the duties for several trips and  it is unnatural on his part to say not only about  four particulars persons travelled in the bus, but also that P.W. 5  purchased the bus tickets for three other passengers.  In our view, it is hardly a way of appreciating the evidence of an  independent witness who was knowing the deceased as well as  the witnesses.  Bus conductor remembered the incident in view  of  the  fact  that they boarded the  last  trip  from Rayachoti and on the next morning P.W.1 boarded the said bus at 5.30 a.m.  for going to the police station and during the talk  with  P.W.1, he was informed about the murder  of  the deceased.    As  stated  above,  in   our  view,  he  is  an independent  person  not connected with the accused  or  the witnesses  and there is no reason to doubt his evidence.  In this  view  of the matter, in our view, the High  Court  was fully  justified in reversing the acquittal order passed  by the  Sessions  Court  whose  approach  in  appreciating  the evidence   of   the  material   witnesses   was   absolutely unreasonable  and unjustified.  In the result, the appeal is dismissed.