N Criminal Appeal No 483 of 1980
From the Judgment and Order dated 61179 of the Andhra Pradesh High Court in Crl
A No 789 of 1979
TVSR Krishna Sastry Vishnu Mathur and VB 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 AP in the night of 31121977
Learned Sessions Judge West Godavari Division Eluru tried the case and relying on the evidence of PWs 12 and 7 in toto and the evidence of PW3 to some extent convicted all the accused persons for the offences charged under Section 302 read with Section 149 IPC and awarded each one of them 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 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 IPC 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 IPC there was no need of separate sentence under Sections 148 and 147 IPC
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 841992
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 PWs 123 and 4 as eye witnesses of the incident
The High Court has placed implicit reliance on the testimony of PW2 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 PW2 and the High Court has rightly placed reliance on his evidence
Learned counsel for the accused persons submitted that even if the statement of PW2 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 PW2 in the cross examination has admitted that he did not state the name of A 3 in his statement recorded under Section 164 Cr
It was also submitted that though PW 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 PW2 recorded at the inquest
We see force in the aforesaid contention
A perusal of the statement of PW2 shows that he did not make a mention of the name of A 3 in his statement recorded under Section 164 Cr
PC 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 PW2 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 PW2 it was contended that when PW2 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 2511978 and 2611978 has no value as PW2 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 2511978 and 2611978 respectively
A perusal of these documents shows that PW2 Garapati Krishnavatharam had 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 PW2 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 presidentdeceased in whose office he was working as a clerk to know the names of the persons residing nearby
PW2 himself admitted at the time of holding the identification parade that he had prior acquaintance with A 2 and A 7
PW2 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 PW1 AND PW2 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 31121977
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 PW 19 Inspector of Police that the accused persons had absconded and on 911978 on information by 500 AM 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 AbrahamA 7 is dismissed
They shall surrender to their bail bonds and serve out the sentence awarded to them by the High Court
NPV Appeal disposed of 


Summary:
During the pendency of a suit for eviction of the appellants from the property of Respondent No1 the appellants were alleged to have trespassed beyond the area which was the subject matter of the suit and indulged in several illegal activities
Thus according to Respondents the appellants were guilty of mischievous conduct
The Respondents instead of filing a suit in the Civil Court or making appropriate prayer for amendment of the plaint in the pending suit field a Writ Petition before the High Court for issuance of appropriate direction retraining the appellants from disturbing the lawful possession of the respondents
The Administration and Commissioner of Police were also impleaded as parties and a direction sought against them not to register any further false and vexatious complaints against the Respondents since undue Police help to the appellants was apprehended
The High Court gave certain directions to the appellants as regards Respondents  access to the backyard
The present appeal by special leave is against the said orders of the High Court
On the question whether the Writ jurisdiction of High Court would be available for enforcement of a private right to immovable property claimed by and against private individuals Allowing the appeals this Court HELD 1
A regular suit is the appropriate remedy for settlement 905 of disputes relating to property rights between private persons and that the remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged
And in such a case the Court will issue appropriate direction to the authority concerned
907 E F 2
If the real grievance of Respondent No1 is against the initiation of criminal proceeding and the orders passed and steps taken thereon she must avail of the remedy under the general law including the Criminal Procedure Code
The High Court cannot allow the constitutional jurisdiction to be used for deciding disputes for which remedies under the general law civil or criminal are available
It is not intended to replace the ordinary remedies by way of a suit or application available to a litigant
The jurisdiction is special and extra ordinary and should not be exercised casually or lightly 907 F H