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PETITIONER: KOVVURI SURYA BHASKARA REDDYSTATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESHGOLUGURI ADIREDDY & ORS.

DATE OF JUDGMENT:       03/03/1998

BENCH: M.K. MUKHERJEE, SYED SHAH MOHAMMED QUADRI.

ACT:

HEADNOTE:

JUDGMENT:                             WITH             CRIMINAL APPEAL NOS. 336-337 of 1997                       J U D G M E N T M.K. MUKHERJEE, J.      Six persons, namely, Kovvuri Surya Bhaskara Reddy, Tadi Venkata  Reddy,   Goluguri  Adireddy,   Kovvuri  Surreddy  @ Suryanarayana   Reddy,    Kovvuri   Subbareddy   and   Sathi Satyanarayana Reddy  (hereinafter referred  to as  A1 to  A6 respectively) were  indicted before the Sessions Judge, East Godavary Division  at Rajahmundry  for rioting,  murder  and other cognate offences. The trial ended in conviction of all of them  under Sections  148 and  302 I.P.C.  (simpliciter). Besides, A1  to A4  were convicted  under Section 307 I.P.C. and A5  and A6  under  Section  307/149  I.P.C.  In  appeals preferred by  them the  High Court set aside the convictions of A4  to A6 and acquitted them. As regards others, the High Court set  aside their   conviction under Section 148 I.P.C. and altered  the conviction  of A1  and A2 under Section 302 I.P.C. (simpliciter)  to 302/34  I.P.C.,  conviction  of  A1 under Section  307 I.P.C. to 326 I.P.C. and conviction of A2 and A3  under Section 307 I.P.C. to 324 I.P.C. Assailing the judgment of  the High  Court A1  and A2 jointly filed one of these appeals  (Criminal Appeal  No. 343  of 1997)  and  the State of  Andhra Pradesh  in its  turn filed  the other  two appeals (Criminal  Appeal Nos.  336-337 of 1997) against the acquittal of  A3 to  A6 of  the offers  for which  they were convicted by  the trial  Court.  During  pendency  of  these appeals A2  died and  his appeal,  therefore, stands abated. All the  appeals have  been heard together and this judgment will dispose of them. 2.   Briefly stated,  the prosecution  case is an follows :- (a) A1  to A6  are related  to each  other as  also to P.W.1 (Kovvuri Srinivasa  Reddi) and  P.W.6 (Kovvuri Suryanarayana Reddi), the two sons of Buchi Reddi (the deceased). While A1 is the  nephew of  P.Ws.1 and 6, A2 is related to A1 through his wife.  A4 is  the brother  of the deceased and A5 and A6 are the  son and brother-in-law of A4 respectively. They are all residents  of Machavaram.  Since before  the  year  1984 there were disputes and differences between the two families over properties  and a  civil suit  had   been filed  by  A4

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against Buchi  Reddi over  the right  of  passage  of  water through their  land. A1  to A6  also  entertained  a  grudge against P.W.1  as, according  to them, father of Buchi Reddi had given him more properties than was due in his share. (b) In the morning of July 31, 1992 P.W.1 accompanied by two day labourers,  namely, P.W.3  (Sabbella Surreddi) and P.W.4 (Tadi Satyanarayana  Reddi) went  to their  plantain garden, which was  in front of their cattle shed, for weeding. While they were  in the  field Buchi  Reddi came there at or about 4.30 P.M.  to tend  the cattle. A little later A1 to A6 came there armed  with various weapons like knife, spear and axe. Reaching there  A1 hacked Buchi Reddi with a knife. This was followed by  an assault  on him  by  A2  to  A6  with  their respective weapons  resulting in  his  instantaneous  death. Seeing the  assault P.W.2  (Subbella Venkata  Reddi) who was standing at  a little  distance  started  shouting.  In  the meantime, when  P.W.1 had  attempted to  run away  from  the place out  of fear, A1 aimed a blow on hi head with a knife. When he  tried to  ward off  the blow  it landed  on hi left palm. A2  made a  similar attempt  with a  spear on his neck which also  he warded  off causing injuries on his thumb and index finger.  A3 also  hacked him  with a battle axe on his left thigh.  On being  so assaulted  he  fell  down  on  the adjacent sugar  field. Then  P.Ws. 3 and 4 ran away from the field as also A1 to A6. (c) P.W.2  gave first aid to P.W.1 by tying his Lungi on his left palm  and then  left for  the village  to inform  P.W.5 (Tadi Satyanarayana  Reddi), father-in-law  of P.W.1.  P.W.5 came  there   and,   having   found   P.W.1   groaning   and unconsciously, went  back to the village to fetch a bullock- cart. In  that car  P.W.1 was  taken to  and admitted in the Government  Hospital,   Kakinada,  where   P.W.10  (Dr.   K. Sudhakara Reddy) examined him and attended to his injuries. (d) After  regaining consciousness  in the following morning P.W.1 narrated  the incident  to P.W.  11 (Md. Khasim), Head Constable foe  Kakinada Town Police Station, who was present in the  hospital. P.W.  11 reduced  the statement in writing (Ext. P-11)  and forwarded  it to  the Officer-in-Charge  of Rayavaram police  station,  within  whose  jurisdiction  the incident had taken place. (e) On  receipt of  Ext. P-11,  P.W.14 (K.  Nookaraju), Head Constable of  Rayavaram Police Station registered a case and P.W.15 (K.  Veera Bhadrarao), the Circle Inspector of Police took up investigation. He went to the scene of offence at or about 2  P.M. and  held inquest  over the dead body of Buchi Reddi which  was still  lying there.  He their forwarded the dead body  to Government Hospital, Ramchandrapuram for Post- mortem examination. (f) P.W.9 (Dr. D.D. Prasada Rao), Civil Asst. Surgeon of the hospital  held the autopsy and found 18 external injuries as also some internal injuries. (g) On  completion of  investigation PW. 15 submitted charge sheet in  the case  and in due course the case was committed to the Court or Session. (3)  To prove its case the prosecution examined 15 witnesses of whom P.Ws 1 to 4 figured as eye witnesses. 4.   The  appellants  pleaded  not  guilty  to  the  charges levelled against  them and  contended that they were falsely implicated due  to family  disputes. In  their defence  they examined seven witnesses to prove the following facts: D.W.1 (K, Satyam),  Mandal Revenue Office, Rayavaram had addressed a letter (Ext. D.12) to the Station House Officer, Rayavaram Police  Station  on  August  1,  1992  intimating  that  the incident  had   taken  place   on  the  pathway  leading  to Machavaram village (not near the cattle shed of the deceased

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as   alleged    by   the   prosecution);   D.W.2   (Velagala Satyanarayana Reddy), owner of a rice mill at Machavaram and D.W.3 (Boda  Suryarao), a  clerk of  that mill to prove that P.W.4’s claim  that he  had seen  the incident was false for he  was   working  in  the  rice  mill  at  that  time.  The attendance-cum-wage register  (Ext. D-14)  of the  mill  was exhibited by  D.W.3 in corroboration of that fact; D.W.6 (V. Suryanarayana), an  Assistant Labour  Officer and D.W.7 (Ch. Kishan), a Factory Inspector had seen the above register and signed the  same in token of its genuineness; and D.W.4 (Dr. V. Satyadev),  Assistant Professor of Orthopaedics and D.W.5 (R. Pratap),  an Anaesthetist,  both of Government Hospital, Kakinada to  prove that  P.W.1 was  conscious throughout the night between  July 31  and August  1 and that he was in the operation table  between the  hours 7 A.M. to 10 A.M. on the following morning,  (which necessarily  meant that statement of P.W. 1 could have been recorded in the previous night but not on  the following  morning at  9.30  A.M.,  as  was  the prosecution case). 5.   From the  judgment  of  the  trial  Court,  which  runs through 120  pages, we find that after a detailed discussion of the  entire evidence  adduced by the parties in the light of the  diverse  arguments  canvassed  on  their  behalf  to establish their  respective cases, it held that the evidence of P.Ws.  1 to  4  was  trustworthy  and  that  the  medical evidence fully  corroborated their ocular version. The other reasons which  weighed with  it to  accept the  evidence  of P.W.1 - and for that matter the prosecution case - were that the injuries  found on  his  person  by  P.W.10  proved  his presence at  the time of the incident and that he lodged the F.I.R detailing  the substratum  of the  prosecution case at the earliest available opportunity. In arriving at the above conclusions the trial Court observed that the entries in the hospital record  on the basis of which D.Ws. 4 & 5 testified were wholly unreliable; that the evidence adduced by defence to   prove that  P.W.4 was  working in  the rice mill at the material time was unacceptable; and that the report (Ext. D- 12)  sent  by  D.W.1  did  not  in  any  way  discredit  the prosecution version as regards the place of incident. 6.   In disposing  of the  appeal in  the  manner  indicated earlier the  High Court concurred with the reasons canvassed by the  trial Court  for not  placing any  reliance  on  the evidence of  the defence witnesses. Besides, it accepted the claim of  P.Ws. 1 and 2 that they witnessed the incident. In spite thereof,  the High  Court found  it unsafe  to rely on their evidence  so far as it sought to implicate A3 to A6 in the murder  of Buchi Reddi principally on the ground that in the F.I.R,  P.W.1 had  not stated  about the manner in which they assaulted  the deceased  though he had stated about the specific overt acts of A1 and A2 in the murder. According to the High  Court, non-disclosure  of such  details led to the irresistible conclusion  that either  P.W.1 had not seen the participation of  A3 to   A6  in the  attack or  that he had improved his  version while  tendering evidence in the Court by attributing  specific overt  acts to A3 to A6 as well. So far as  P.W.2 is  concerned the  High  Court  observed  that though they  were not  persuaded to  think  that  he  was  a planted  witness   and  he  would  not  have  witnessed  the occurrence at all, still then, it was not expected of him to see from  a distance of about 60 feet as to the actual parts played by each of the accused. 7.   The evidence  of P.Ws.  3 and  4 was disbelieved by the High Court  firstly on  the ground  that in the F.I.R. P.W.1 stated only  in general  terms that coolies were working but he did  not give  the names  of P.Ws. 3 and 4 as the coolies

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nor did  he state that they witnessed the incident. The next ground was  that the  incident took  place between  6.30 and 7.00 P.M.  when darkness  had set in and not at 5.00 or 5.30 p.m. as  alleged by  the prosecution  and it was, therefore, doubtful whether agricultural labours would still be working at that  time to remove the weeds. The steps of reasoning of the High  Court in  fixing the  time of  the incident are as under:      "He (P.W.1)  was  admitted  in  the      hospital at 10.30 P.M. according to      P.Ws. 2,  5, and  10. The  distance      between Machavaram  and Kakinada is      about 35 KMs. According to P.W. 15,      he took  45 minutes  to travel in a      jeep. According  to P.W.2, the taxi      was  brought  at  about  6-30  P.M.      P.W.5 stated  that  it  took  about      1,1/2  hours   to  reach  Kakinada.      According to P.W.1, they started to      Kakinada by  about 7-30  P.M.  Even      then there is an unexplained gap of      2 to 2, 1/2 hours, according to the      learned counsel  for the appellant.      It  is   true  that   there  is  an      unexplained gap  of at least 1, 1/2      hours if  not  2,  1/2  hours  even      after giving  allowance to the fact      that the  villagers  may  not  have      good time  sense. The  journey from      Machavaram to  Kakinada  could  not      have  taken   more  than  an  hour.      Considering   all    the   relevant      circumstances, we  are of  the view      that  the  incident  did  not  take      place either  at 5  or 5-30 P.M. as      stated by  the prosecution  but  it      should have  taken place between 6-      30  and  7-00  P.M.  most  probably      after sun-set."      Lastly,  the   High  Court   observed  that  there  was contradiction between  their evidence and that of P.W. 15 as to the time when their statements under Section 161 Cr. P.C. were  recorded  and  that  there  were  some  contradictions between  their  depositions  in  Court  and  the  statements recorded during investigation. 9.   After having  discussed the  evidence of the above four eye witnesses  the High  Court drew the following conclusion :-      "The  net   result  of   the  above      discussion  is   that  amongst  the      alleged   eye-witnesses,   we   are      inclined to  think that P.Ws. 1 and      2 did  witness the  occurrence  and      there is nothing to discredit their      testimony as  a whole.  However, in      view of  the partisan nature of the      evidence of these two witnesses and      the    improbability    of    P.W.2      observing the details of the attack      against the  deceased and P.W.1, we      feel  it  safe  to  rely  on  their      evidence to  the extent it receives      corroboration from the statement of      P.W.1  (Ex.   P-1)  made   at   the      earliest opportunity.  In Ex.  P-1,

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    specific overt acts were attributed      to A-1 and A-2 as far as the attack      on P.W.1  is  concerned.  The  said      evidence is  in conformity with the      medical evidence..........." 10.  On perusal of the record we are constrained to say that each of  the reasons  given by  the High Court for recording the order  of acquittal  on favour  of A3  to A6 is patently wrong. That apart, some of the observations made by the High Court  in  that  regard  stand  contradicted  by  its  other observations. For example, having observed that it was quite aware of  the fact  that P.W.1  was severely  injured and he might not  have been  in a  mood to  narrate the incident in great details  the High  Court could  not have  expected  of P.W.1 -  nor was  it necessary - to give the graphic details of the  roles played  by each  of the accused in the murder. While on  this point  it will  be pertinent  to refer to the statements made  therein. After giving the background of the enmity between  their family  and that  of the accused P.W.1 stated that  on July 31, 1992 at or about 5.00 P.M. when he, his father  and coolies  were in their field the six accused persons came there armed with knives and spears and suddenly attacked his  father. A1 hacked him with a knife on the head and A2  with a  spear on the neck and then the other accused assaulted  him   (the  deceased)   with  knives  and  spears indiscriminately. This was followed by a statement as to the manner of  assault on  him by some of the accused. Lastly he stated that  P.W.2 witnessed  the  incident  and  P.W.4  had brought him to the hospital. It would thus b e seen that all material facts  relating to  the incident  find place in the F.I.R.; and,  therefore, the  High  Court  was  not  at  all justified in  brushing aside  the prosecution case regarding participation of  A3 to  A6 in the murder on the sole ground that  the  manner  in  which  they  actually  assaulted  the deceased was  not mentioned therein. Absence of the names of A3 and  A4 in  the F.I.R. should not also have been made one of the  grounds  to  discard  that;  evidence  when  it  was specifically mentioned  therein that  coolies  were  working with them  in their  field at the time of the assault (which necessarily meant  that they were witnesses to the incident) and  when   admittedly  P.Ws.  3  and  4  work  as  collies, Incidentally, it  may be  mentioned that  name of P.W.4 does find place  in the  F.I.R.(as noticed earlier) as the person who took P.W.1 to the hospital. 11.  As regards  the finding  of the  High  Court  that  the incident took  place between  6.30 and  7.00 P.M. and not at 5.00 P.M.  or 5.30  P.M. the  same is  contradictory to  its other finding.  Having accepted  the evidence of P.Ws. 1 and 2, who  categorically stated that the incident took place at 5.00 or  5.30 P.M.  and, relying thereupon, having convicted A1, A2  and A3  (for assaulting  P.W.1) the High Court could not have  concluded that it took place between 6.30 and 7.00 P.M. That apart, when read in the context of the evidence of P.W.2 and  P.W.5 regarding  the sequence  of events  and the sense of  time of  Unsophisticated villagers (which the High Court itself  noticed)  the  reasoning  of  the  High  Court (quoted earlier)  to draw  the above  conclusion  is  wholly unsustainable. According  to the  above witnesses, after the incident took  place P.W.2  first went  to  the  village  to inform  P.W.5,  father-in-law  of  P.W.1.  On  getting  that information P.W.5  came to  the spot  and  having  seen  the condition of P.W.1 went back to the village to fetch a cart. With the  cart he came back again to the place of occurrence and took  P.W.1 to  his house  in the village. Thereafter he and P.W.2  went on  bicycle up to a bridge and after keeping

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their bicycle  there went  to Ramachandrapuram taxi stand to hire a taxi. They brought the taxi to the house of P.W.1 and then took  P.W.1  to  Kakinada  Government  Hospital  which, according to  P.W.15 was  at a  distance of 35 Kms, and took him 45  minutes to reach in a jeep. When the above facts are taken into  consideration the  conclusion is inevitable that the prosecution story that the incident took place either at 5.00 or  5.30 P.M. cannot be doubted nor can it be said with precision that there was an unexplained gap of at least 1 to 1 1/2  hours. Even if there was such an unexplained gap, the High Court  could not have  by back calculation, refixed the time of  the incident  at 6.30 P.M. or 7 P.M. (after sunset) which was  not even the case of the defence during trial. In view of this discussion of ours the other reason of the High Court to  disbelieved P.W.3  and P.W.4  that as agricultural labour they were not expected to work after sunset cannot be supported also. 12.  Now that  we have  found that  none of  the grounds put forward by  the  High Court to discard the evidence of P.W.3 and 4  altogether and  to acquit  A3 to  A6 of the charge of murder cannot  at all be sustained, we have to look into the evidence on  record to  ascertain whether the convictions of A1 for  the murder  and assault on P.W.1, acquittal of A3 of the offence  of murder  and of A4 to A6 of both the offences are justified. Coming first to the evidence of P.W.1 we find that he has narrated the entire prosecution case as detailed earlier. Next,  the unimpeachable  evidence of  P.W.10,  who examined him  at the Kakinada Hospital at 10.50 P.M. on July 31, 1992  proves that  he had  six injuries  on his  person. P.W.10 opined  that all  the injuries  were fresh and one of them (injuries No. 6) was grievous. According to him some of the injuries  could be caused by axe and knife. The injuries found on  the person  of P.W.1  fully supports  his claim of having been  present at the scene of offence. Then again, in view of  the concurrent  finding of the learned Courts below that the  evidence adduced  by  the  two  doctors  who  were examined as  defence witnesses, namely D.W.4 and D.W.5 could not be relied upon - a finding with which we are in complete agreement -  it must  be said  that the F.I.R. was lodged at the  earliest   available  opportunity.   This  is   another circumstance to corroborate the evidence P.W.1. In assailing his evidence  Mr. Lalit, appearing for A1, urged that having disbelieved his evidence so far as it sought to implicate A3 to A6,  the High Court ought not to have placed any reliance upon his  evidence to  convict A1.  This contention  of  Mr. Lalit also  drew our attention to some contradictions in his evidence. To  eschew prolixity  we  refrain  from  detailing those contradictions as they are minor contradictions and do not in any way distract from his credibility. 13.  The evidence of other three witnesses, namely P.Ws.2, 3 and 4  fully support  that of P.W.1 and inspite of searching cross examination the defence could not make a dent in their evidence to  discredit them.  The evidence  of the  four eye witnesses clearly  establishes that the accused persons came there  armed   with  various   weapons  and   all  of   them participated in  the murder  of Buchi  Reddy. 18 injuries of different nature,  shapes and sizes all over his body, which resulted in his immediate death, as testified by P.W.9, go a long way  to support the version of all the eye witnesses as to the  manner in  which the  assault took  place. Taking an over all  view of  the entire  evidence on record we find no hesitation in  concluding that  the murder  was committed by all the  accused persons  in  furtherance  of  their  common intention. That necessarily means that A1, A3, A4 and A6 are liable  for   conviction   under   Section   302/34   I.P.C.

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Accordingly, we  uphold the  conviction and  sentence of  A1 under Section  302/34 I.P.C.  and, after  setting aside  the acquittal of A3 to A6 of the above offence convict them also under Section  302/34 I.P.C. For the conviction each of them shall suffer  imprisonment for  life. The  convictions of A1 and A3 under Section 326 and 324 I.P.C. respectively for the assault on  A1 and  the sentences  imposed upon them for the above  convictions   by  the  High  Court  will  stand.  The sentences of A1 and A3 shall run concurrently. 14.  On the  conclusions as above we dismiss Criminal Appeal No. 343  of 1997  and allow  Criminal Appeal Nos. 336-337 of 1997  to  the  extent  indicated  above.  Let  A3  (Goluguri Adireddy). A4  (Kovvuri Surreddy  @ Suryanarayana Reddy), A5 (Kovvuri Subbareddy)  and A6 (Sathi Satyanarayana Reddy) b e ,.M?btaken into  custody to  serve  out  the  sentences  now imposed upon  them for their conviction under Section 302/34 I.P.C.