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PETITIONER: MULLAGIRI VAJRAM AND ORS.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT15/10/1992

BENCH: [KULDIP SINGH AND N.M. KASLIWAL, JJ.]

ACT: Criminal  Law: Indian Penal Code, 1860: Sections  149  and  302-Murder-Conviction  of  the  accused- Confirmation of  by High  Court-Whether valid-Identification of accused-Reliance  placed on  evidence of  eye witness of- Whether proper-name  of one  of the accused not mentioned in Statements recorded  either under Section 164 Cr. P.C. or at the inquest-Whether accused entitled to benefit of doubt.

HEADNOTE: Twelve  persons,   including   the   appellants,   were challaned for  the murder  of Sarpanch of a village. Relying on the evidence of P.Ws. 1,2 and 7 in toto and that of P.W.3 to some extent, the Sessions Judge convicted all the accused persons for the offences under Section 302 read with Section 149 I.P.C. and awarded sentence of imprisonment for life and other minor terms of imprisonment for other offences. On appeal,  the High Court set aside the conviction and sentence of  seven accused persons, namely, A-4, A-5, A-8 to 12 and  confirmed  the  conviction  of  the  remaining  five accused persons,  A-1, A-6  and A-7  under Section  302 read with Section  149 I.P.C.  and sentenced them to imprisonment for life. These five  accused filed  an appeal, by special leave, before this  Court. During the pendency of the appeal one of the accused-appellants  died and as such appeal filed by him was dismissed as having abated. On behalf  of the accused persons it was submitted that even if  the statement  of P.W. 2 was taken to be correct no offence was  made out  so far  as accused A-3 was concerned, inasmuch as P.W.2 had admitted in the cross-examination that he did  not state  the name of A-3 in his statement recorded under Section  164 Cr.  P.C., and  that the  name of A-3 was also not  found in  Exhibit  D-7,  the  statement  of  P.W.2 recorded at  the inquest,  and that  since P.W.2 had gone to police station  seven or  eight times  after  the  incident, there was  a possibility  of his seeing the accused, A-2 and A-7 in  the police  lock-up  and  hence  the  identification parades held had no value. Disposing of the appeal, this Court, HELD:  1.1.  There  is  no  infirmity  at  all  in  the reasoning and  conclusions arrived  at by  the High Court so far as accused A-1, A-2 and A-7 are concerned.[24-B] 1.2  It is established beyond any manner of doubt that there were two  factions and  long standing rivalry in between the two groups  in the  village. The accused persons belonged to

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the group headed by A-6, A-7 and the deceased was the leader of  the  other  group.  The  deceased  was  given  merciless beatings and was done to death in the midnight. He was found to have  26 external  injuries as recorded in the autopsy of his dead  body conducted  by the  Doctor. It  has also  been found established  by the trial court as well as by the High Court that  A-1 inflicted  injuries by  an axe  and A-2 by a spear and  A-7 was  among the  other persons  who  inflicted injuries buy  a stick.  It has  also come in the evidence of P.W.19,   Inspector of  Police, that the accused persons had absconded  and   after  a  few  days  of  the  incident,  on information, he,  alongwith mediators,  visited the  village and the  absconded accused  were hiding in the house of A-7. He surrounded the house with hes staff, guarded it and found therein, the  twelve  persons  against  whom  the  case  was challaned. It  has also  been proved by the prosecution that A-7  was  the  leader  of  the  rival  faction  against  the deceased. [23-F-H, 24-A] 1.3. The High  Court has considered the prosecution evidence in detail  and has  placed reliance  on  the  statements  of P.Ws.1 to 4 as eye-witnesses of the incident. The High Court has placed  implicit reliance  on the  testimony of P.W.2. a clerk in  the deceased’s office, and who had accompanied the deceased in  an autorickshaw and seen the incident. There is no infirmity  in the  Statement of  P.W.2 and the High Court has rightly placed reliance on his evidence. [22-D,E] 1.4. P.W.2 himself  admitted at  the  time  of  holding  the identification parade that he had prior acquaintance with A- 2 and A-7. P.W.2 is a witness of sterling worth and both the trial court  and the  High Court have placed reliance on his testimony. He  had identified A-1, A-2 and A-7 in the Court. Their conviction  is not  based on the identification parade but on  the statement  of P.W.1  and P.W.2  made during  the trial as eye-witness. [23-E] 1.5. A perusal  of the  statement of P.W.2 shows that he did not make  a mention  of the  name of  A-3 in  his  statement recorded  under  Section  164  Cr.  P.c.  and  also  in  his statement, Exhibit  D-7, recorded  at the  inquest.  In  the circumstances, the  circumstances, the  accused A-3  is also entitled to the benefit of doubt. [22-G] 1.6. In the  result, A-3  is acquitted  of all  the  charges levelled against him, and the conviction and sentence of the other appellants, A-1, A-2 and A-7 are confirmed. [24-c]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 483 of 1980.      From the Judgment and Order dated 6.11.79 of the Andhra      Pradesh High Court in Crl. A. No. 789 of 1979.      T.V.S.R.  Krishna   Sastry,  Vishnu   Mathur  and  V.B. Saharya, Amicus curiee (NP) for the Appellants.      G. Prabhakar for the Respondent.      The Judgment of the Court was delivered by      KASLIWAL, J.  Twelve persons  were  challaned  for  the murder of  Nethala Veeraswamy,  a resident  and Sarpanch  of village Ramaraogudem  in Eluru Taluq, West Godavari District (A.P.) in  the night  of 31.12.1977. Learned Sessions Judge, West Godavari  Division, Eluru tried the case and relying on the evidence  of P.Ws. 1,2 and 7 in toto and the evidence of P.W.3 to  some extent  convicted all the accused persons for the offences charged under Section 302 read with Section 149 I.P.C. and awarded each one of them sentence of imprisonment for life  and other  minor terms  of imprisonment  for other

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offences. On  appeal the High Court set aside the conviction and  sentence  of  seven  accused  persons,  namely,  Dasari Bhaskara  Rao  (A-4),  Kali  China  Krishna  (A-5),  Namburi Lakshmana (A-8),  Namburi Ramulu  (A-9), Namburi Prasada Rao (A-10), Mada  Govardhana Rao  (A-11) and Kali Kamaka Rao (A- 12).  The   High  Court  confirmed  the  conviction  of  the remaining five  accused persons Mullagiri Vajram (A-1), Mada Lakshmandas (A-6)  and Gandi Abraham (A-7) under Section 302 read  with   Section  149   I.P.C.  and  sentenced  them  to imprisonment for  life. The  High Court further held that as these accused  had been sentenced for the main offence under Section 302  read with  Section 149 I.P.C. there was no need of separate sentence under Sections 148 and 147 I.P.C.      The five  accused A-1,  A-2, A-3,  A-6 &  A-7 have come before this  Court in  appeal against  the order of the High Court by  grant of  Special Leave.  Mada  Lakshmandas  (A-6) expired during  the pendency  of appeal before this Court as such the  appeal filed by him was dismissed as having abated by order dated 8.4.1992. We are now concerned in this appeal with the four accused appellants A-1, A-2, A-3 and A-7.      We have  gone through  the Judgment of the lower courts and  have   perused  the  record  and  have  considered  the arguments advanced  by learned  counsel for the parties. The High Court has considered the prosecution evidence in detail and has placed reliance on the statements of P.Ws. 1,2,3 and 4 as  eye-witnesses of  the incident.  The  High  Court  has placed implicit  reliance on  the testimony of P.W.2 and who was a  clerk working in the panchayat office of Ramaraogudem and had  accompanied the deceased in an autorickshaw and had seen the  incident. We find no infirmity in the statement of P.W.2 and  the High Court has rightly placed reliance on his evidence.      Learned counsel  for the accused persons submitted that even if  the statement  of P.W.2  is taken to be correct, no offence is  made out  so far  as accused (A-3) is concerned. Learned counsel  in this regard submitted that P.W.2  in the cross examination  has admitted  that he  did not  state the name of  A-3 in  his statement  recorded under  Section  164 Cr.P.C. It was also submitted that though P.W. 2 stated that he had  given the  name of  A-3 in his statement recorded at the inquest  but the  name of  A-3 does  not find mention in exhibit D-7,  the  statement  of  P.W.2    recorded  at  the inquest. We see force in the aforesaid contention. A perusal of the  statement of  P.W.2 shows  that he  did not  make  a mention of  the name  of A-3 in his statement recorded under Section 164  Cr.P.C.   and also in his statement exhibit D-7 recorded at  the inquest. In view of these circumstances the accused A-3 is also entitled to the benefit of doubt.      It was  next contended  by learned counsel on behalf of the accused A-2 and A-7 that P.W.2  in the cross examination admitted that  after the  incident he  had  gone  to  police station seven  or eight  times. He  had gone  to the  police station as he was asked by the police. He also admitted that at that  time accused persons were in police lock up. On the basis of  the aforesaid statement  of P.W.2 it was contended that when  P.W.2   had gone  to the  police station scene or eight times after the incident the possibility of his seeing the accused  (A-2) and (A-7) in the police station cannot be ruled out.  It was  thus contended  that any  identification parade held on 25.1.1978 and 26.1.1978 has no value as P.W.2 had already  seen the accused persons in the police station. We find  no force in this contention. Exhibits P-16 and P-17 are  the   proceedings  of  identification  parade  held  on 25.1.1978 and  26.1.1978 respectively.  A perusal  of  these documents shows  that P.W.2   Garapati  Krishnavatharam  had

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himself stated that he had prior acquaintance with Mullagiri Yesupadam (A-2)  and Gandi Abraham (A-7). The High Court has examined this  aspect of  the matter and has rightly arrived to the  conclusion that  P.W.2   in his  evidence has stated that he  came to  know the  names of  the accused  from  the children of  the deceased  and it  was not  unnatural for  a person, who  resides in a village for a period of two months and especially when they reside opposite to the residence of the president(deceased)  in whose office he was working as a clerk to  know the  names of  the persons  residing  nearby. P.W.2     himself  admitted  at  the  time  of  holding  the identification parade that he had prior acquaintance with A- 2 and A-7. P.W.2 is a witness of sterling worth and both the trial court  and the  High Court have placed reliance on his testimony. He  had identified A-1, A-2 and A-7 in the Court. Their conviction  is not  based on the identification parade but on  the statement  of P.W.1  AND P.W.2   made during the trial as eye-witness.      It is established beyond any manner of doubt that there were two  factions and  long standing rivalry in between the two groups  in the  Village. The accused persons belonged to the group headed by A-6, A-7 and the deceased was the leader of the other group. Nethalaveeraswamy the deceased was given merciless beatings  and was done to death in the midnight of 31.12.1977. He  was found  to have  26 external  injuries as recorded in  the autopsy  of his  dead body conducted by the Doctor. It  has also  been found  established by the learned trial court as well as by the High Court that A-1  inflicted injuries by  and axe  and A-2  by a  spear and A-7 was Court that A-1 inflicted injuries by an axe and A-2 by a spear and A-7 was  among the other persons who inflicted injuries by a stick. It  has  also  come  in  the  evidence  of  P.W.  19, Inspector of  Police that  the accused persons had absconded and on  9.1.1978 on  information by 5.00 A.M., he along with mediators visited  Ramaraogudem and  the  absconded  accused were hiding  in the  house of  A-7. He  surrounded the house with his staff, guarded the house and in that house he found the twelve  persons against  whom the case was challaned. It has also  been proved  by the  prosecution that  A-7 was the leader of  the rival  faction against  the deceased. Thus we find that  there is no infirmity at all in the reasoning and conclusion arrived at by the High Court so far as accused A- 1, A-2 and A-7 are concerned.      In the  result we  allow the  appeal so  far as  Dasari Bhima Rao  (A-3) is concerned and he is acquitted of all the charged levelled  against him  his bail  bonds  shall  stand discharged. The  appeal filed  by  Mullagiri  Vajram  (A-1), Mullagiri  Yesupadam   (A-2)  and   Gandi  Abraham(A-7)   is dismissed. They  shall surrender  to their  bail  bonds  and serve out the sentence awarded to them by the High Court. N.P.V.                                 Appeal disposed of .