http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (crl.) 445-446  of  1998 Appeal (crl.)   447      of  1998 Appeal (crl.)   448      of  1998

PETITIONER: MALEMPATI PATTABI NARENDRA

       Vs.

RESPONDENT: GHATTAMANENI MARUTHI PRASAD AND ORS,

DATE OF JUDGMENT:       27/03/2000

BENCH: K.T. THOMAS & D.P. MOHAPATRA

JUDGMENT:

THOMAS, J. L...I...T.......T.......T.......T.......T.......T.......T..J     For  the  murder of a Gram Sarpanch the  sessions  court which  tried  the  case  convicted  6  persons  for  various offences  including  criminal conspiracy to commit the  said murder.   But  a Division Bench of the Andhra  Pradesh  High Court,  on appeal filed by the convicted persons,  acquitted most  of  them  and even regarding the two  who  were  found guilty the High Court has chosen to convict them only of the offence  under  Section 326 of the Indian Penal Code.   They were  sentenced to undergo RI for 7 years.  Hence they  have appealed  before  us  by  special leave.   The  son  of  the deceased   filed   a  separate   appeal  by  special   leave challenging  the judgment of the High Court in so far as  it is  favourable to the accused.  The State of Andhra  Pradesh has  also  filed an appeal for restoring the conviction  and sentence  passed  by  the  trial court.  We  heard  all  the appeals together.

   The  incident  happened on the night of 18.1.1993, on  a public  road.  Prosecution case is that the deceased Sitaram Anjanalelu,  the Gram Sarpanch, was proceeding to the  house of  his daughter Sujatha (who is married to A.K.  Rao).  The time was around 11.00 P.M.  when the deceased reached almost near  that house.  Then 5 accused (all except A-4  Shashiah) jumped  out  from ambush, and waylaid the  deceased.   After surrounding him the accused showered him with blows by using axe,  knife and similar lethal weapons.  The victim died  at the spot after sustaining extensive injuries.

   The  background for the said occurrence, as pictured  by the  prosecution, is that the deceased was a Congress leader and 4th accused Shashiah belonged to CPI and as between them there  were enough causes for rivalry including an  election which  was held to the Board of Directors of a  Co-operative Society in which a panel set up by the deceased had trounced the  candidate set up by the 4th accused.  The newly elected Board  of  Directors initiated proceedings against  the  4th accused  (who  held  the  office of President  of  the  same

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

society  earlier)  for misappropriation of the funds of  the society.   Thereupon  4th accused entered into a  conspiracy with  other  accused  for liquidating the  deceased  Sitaram Anjanalelu.   Accused 1, 2 and 3 are the sons of 4th accused and  accused  Lal  Bahadur is his nephew.   P.W.1  (Pattabhi Narendra) is the son of the deceased.  He lodged a complaint in  writing  with the police on the same night in  which  he said  that he was walking a few yards behind his father  and witnessed  the incident in which all the accused  (including the 4th accused Shashiah) launched the attack on his father. But  the  investigating officer came to understand that  A-4 was  interned  in a jail on the previous day  in  connection with  some other case, and therefore, it was impossible  for him  to  be  present  at the scene of  occurrence.   So  the investigating  officer charge- sheeted the remaining accused mentioned in the complaint for the offence under Section 302 read   with   Section  149  of   the  Indian   Penal   Code. Nonetheless,  A-4  was also arraigned as an accused  on  the allegation  that  he had hatched a criminal conspiracy  with the other accused to finish the deceased off.

   Dr.   J.  Krishnamurthy (PW-10) conducted the autopsy on the  dead  body  of  the deceased.  He  noticed  17  incised injuries  out of which 10 were on the head, 3 injuries among them  were  the most serious injuries and the brain  of  the deceased was lacerated.

   At  the  outset, we have to point out that the  Division Bench  of  the High Court has committed a serious  error  in holding  that  the offence proved as against A-1 and A-3  is only  under  Section  326  of the Indian  Penal  Code.   The assailants,  who had participated in the occurrence in which deceased   was  killed  so   brutally,  cannot  escape  from conviction  under  Section  302 at least with  the  help  of Section  34,  if  not with Section 149 of the  Indian  Penal Code.   The  conviction of the assailant or  assailants  who inflicted  grievous injuries which resulted in the death  of the  victim  cannot be limited to Section 326 of the  Indian Penal Code.

   On  the  conspectus of the facts of this case, the  only inquiry  which the court needs to conduct is whether any one of  the  accused  was  among the  assailants  who  inflicted injuries  on  the  deceased.   If  the  finding  is  in  the affirmative then that accused cannot escape conviction under Section  302 with the aid of Section 34, if not with Section 149 of the Indian Penal Code.

   As   this  is  an  appeal   under  Article  136  of  the Constitution,  normally, we would not reopen the  concurrent findings  relating to the appreciation of evidence.  But  in this  case  if  we adopt that standard, the sequel  is  that conviction  passed on second and third accused will have  to be altered to Section 302 I.P.C.  and the sentence has to be enhanced to at least imprisonment for life.  In view of such a  consequence  befalling the convicted persons, we feel  it necessary  in the interest of justice to make a  reappraisal of  the evidence in order to reach our conclusion  regarding the reliability of the evidence of the prosecution.

   If  the testimony of PW1 is believable, the corollary is that  the testimony of PW2, PW3 and PW4 can also be believed because  each of them has identified the other as present at the  scene.  The consequence is that the accused(except  A4) cannot escape conviction under Section 302 read with Section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

149 of the Indian Penal Code.  PW2 and PW3 are the other two witnesses  who said that they were residing in the house  of A.K.  Rao(son-in-law of the deceased) and on hearing the hue and  cry  from the nearby road they rushed out and  saw  the assailants  showering  blows  on the deceased with  axe  and knife,  etc.  Would PW1 have been present at the place  when the  occurrence took place?  We have noticed some hurdles in the way for believing that he witnessed the occurrence.  The foremost  amongst  such hurdles is the  unambiguous  version given  by  PW1  in his first written complaint that  he  saw A4(Shashiah) who is the father of A1 to A3, participating in the  occurrence and a specific role (inflicting axe blows on the  deceased) has also been ascribed to that accused.   But it  was later understood that A4 was in fact locked up in  a jail during that very night pursuant to a conviction imposed on  him  by  a  criminal Court on the  previous  day.   Jail records  as  well as the court proceedings  conceived  would have  proved that fact and hence the police could not  array A4 (Shashiah) as a ‘participus criminus’.  That might be the reason   why  police  allotted  a  different  role  to   A-4 (Shashiah)  as the chief conspirator over the murder of  the deceased.   When  PW1 gave evidence in Court, he  adopted  a dubious  strategy  by saying that A4 was not present at  the scene  of  occurrence  but he saw a person  having  striking resemblance to A4 giving axe blows on the deceased.

   Though to be interned in jail is a misfortune, it became a  blessing  to A4.  If he was not then in jail, what  would have  been the disastrous consequences for him.  We have  no doubt  that  PW1 would certainly have stuck to  his  version regarding  A4’s  role in the same manner as he gave  in  his written  complaint.  If the Court had believed PW1, in  that situation  A4 would have been convicted of the offence under Section  302  I.P.C.  Now, we have no manner of  doubt  that PW2’s  present  version,  that he  identified  an  assailant having  close  resemblance with A4, is nothing but a  canard concocted  for the purpose of escaping from the charge of  a rank perjury.

   In  this context, it must also be borne in mind that A1, A2  and A3 are the children of A4.  If the father could have been  falsely implicated in the murder of the deceased,  why not  the  children  also  be arrayed with  the  same  angle. Hence, the possibility of false implication of A1, A2 and A3 cannot  be  lightly  glossed over.  So,  we  must  seriously consider  whether PW1 witnessed the occurrence at all or  he would  have  reached  the  place of  occurrence  only  after hearing about his father’s mishap.

   Apart  from the above insurmountable hurdle, if PW1  was present when the occurrence took place, it does not stand to reason  why he was completely spared by the assailants.   It is difficult to believe that if PW1 was present, a young man of  33 like him could not have done even a bit to go to  the rescue  of  his father and if he had done so, he would  have sustained  injuries, at least some minor injuries.  But  the fact  is  that  PW1 did not sustain even a  scratch  on  his person.  Yet another aspect is that if PW1 waited to rush to his  dying father till the assailants stopped attacking  him even  then it is difficult for us to conceive that at  least the  clothes  of PW1 could not have been smeared  with  some blood,  if not copious blood.  But nobody has noticed even a drop of blood on his clothes.

   We  are  in complete dearth of satisfactory  explanation

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

for  such broad features staring at the reliability of PW1’s version.   Attached  to  the above features is  another  odd feature.   The  FIR has been prepared on the strength  of  a written  complaint  furnished  by  PW1.  He  said  that  the complaint  was  scribed  by his nephew who was  residing  13 kilometers  away  from  the  place.   That  scribe  was  not examined  as a witness.  We do not know how that scribe  was brought to this place from such a distance and at what time. There   certainly  would  have   been   confabulations   and deliberations before preparing the written complaint.

   It  is pertinent to notice that PW2 and PW3 also said in their   examination  in  chief   itself  that  an  assailant resembling  A4 had participated in the occurrence by hacking the  deceased  with  an  axe on the  head.   But  even  they refrained  from  saying more than that, lest, any  assertion that  A4  participated in the crime would contaminate  their testimony.   When  we  read  the   further  portion  of  the testimony  of PW2 and PW3, we have come across reasons to be slow in acting on such testimony as well.

   PW2  admitted  that  he was doing contract  work  in  an industrial   establishment  owned  by   deceased’s   brother (Venugopal  Rao).   The defence counsel  seriously  disputed that  claim  of PW2.  It was sought to be made out that  PW2 could  not  have  been present on that night  even  in  that village  because  his  grand mother had passed away  on  the previous  evening.   When PW1 was asked about that fact,  he said  that  the parents of PW2 had gone to other village  as they  got  the  information that his grand mother  was  very serious  and  she died at 7.00 p.m.  PW2 would clearly  have anticipated  that he would be confronted with that  question during  cross-examination.  So he put forward an excuse that he  was informed of the death of his grandmother only on the next  morning.   It is difficult for us to believe that  PW2 was  unaware  of  the serious condition of  his  grandmother particularly  because his parents who were living with  him, had already gone away to see the old lady in her death bed..

   PW3  (Pothuraju),  an employee under deceased’s  son-in- law  A.K.  Rao said that he was residing in one of the rooms of the house of A.K.  Rao.  His evidence is in tune with PW1 and  PW2 and so he also said that a person resembling A4 was one  of the main assailants.  Why did he also say that?  PW3 being  a  dependant of A.K.  Rao appears to be  speaking  in tune  with  his  master because he admitted that  he  was  a witness  in another case against A1 to A4 which was tried in 1980.   He also admitted that even his father was a  witness against  A4 in a case tried in 1968.  We have difficulty  to place  reliance on the testimony of such a witness as PW2 in the aforesaid background.

   Although  PW4 did not see the occurrence or any part  of it, prosecution examined him as a corroborating witness.  He said  that  he was a watchman of the poultry farm of one  A. Koteswararao  and  after  his work was over on the  date  of occurrence,  he  walked  home and on the way, he  saw  these accused(except  A4) running with axe, knife, etc.  The  time was  about  11.00 p.m.  then.  A little later, PW4  saw  the three witnesses (PW1, PW2 and PW3) and PW4 went to the scene of  occurrence and saw the deceased lying injured and he got the  entire narration of the incident from PW3.  Normally, a witness  like  PW4  would be sufficient to  corroborate  the testimony  of  the eye witnesses.  When Counsel for some  of the  accused  cross-examined  him, he said that it  was  his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

maiden appearance in any court of law on that day.  But when another   Counsel  appearing  for   the  remaining   accused confronted  him  with Ext.  D-17 (a copy of  his  deposition which  he gave in 1957 in another case), he admitted that he had  deposed  against  A4  even in  1957.   As  the  defence strongly  disputed  his  claim  that   he  was  employed  by Koteswararao,  he  had to admit, to a Court  question,  that there  is  no record to show that he was so employed.   Even that  apart,  he said that his watchman work was limited  to the  day time.  If so how could he account for his  presence at  the  scene of occurrence at 11.00 p.m.?  The  above  are features  which  dissuade  us from placing reliance  on  his testimony as a witness of truth.

   For  the  aforesaid reasons, we are unable to hold  that prosecution  has succeeded in establishing that the  accused in  this case were the assailants who attacked the deceased. We entertain a reasonable doubt on that score.

   In  the  result, we allow the appeal filed by A1 and  A3 and  set aside the conviction sentence passed on them.  They are acquitted.  The remaining appeals are dismissed.