THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR Criminal Appeal No.1618 of 2007 Date: 16-9-2009 Between 1. Sunkara Sudhakar @ Sudha and 3 others … Appellants/Accused 1, 2, 3 and 5 and The State of Andhra Pradesh, Rep. by Public Prosecutor, High Court of A.P., Hyderabad … Respondent/State THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR Criminal Appeal No.1618 of 2007 Oral Judgment: (per D.S.R.Varma, J.) Heard Sri C.Padmanabha Reddy, learned Senior Counsel, representing Sri K.Chidambaram, learned Counsel appearing for the appellants-accused 1, 2, 3 and 5, and the learned Public Prosecutor appearing for the respondent/State. 2. This appeal is directed against the judgment, dated 25-10-2007, in Sessions Case No.325 of 2005, passed by the II Additional Sessions Judge, Amalapuram, East Godavari district. 3. For convenience, the appellants are referred to as ‘accused 1, 2, 3 and 5’. 4. The charge-sheet was filed against six persons in all. An order of acquittal was recorded as against accused 4 and 6. All the accused were tried for the offences punishable under Sections 148 and 302 IPC or in the alternative, Section 302 read with Section 149 IPC and the trial Court recorded the order of conviction against accused 1, 2, 3 and 5 for the offence under Section 148 IPC and they were sentenced to undergo rigorous imprisonment for a period of one year each. Accused 1, 2, 3 and 5 were further convicted for the offence under Section 302 read with Section 149 IPC and were sentenced to undergo ‘imprisonment for life’ each and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for two months each. 5. The case of prosecution, in brief, is as under: That one Namana Sankaram @ Sankar (hereinafter referred to as ‘the deceased’) was a resident of Amalapuram; that he was a rowdi sheeter; that P.Ws.1, 2, 3 were his friends; that they were supporters of the Telugu Desam Party; that there were group differences in Amalapuram and surrounding areas; that one group was headed by one Koduru Sathi Babu and the other by Vakapalli Satyanarayana @ Chinna and that both of them are residents of Janupalli Village and live by doing business in vegetables. That Vakapalli Satyanarayana @ Chinna and his father Chintanna @ Peda Kapu were murdered and a case in Crime No.14 of 2001 was registered against Koduri Sathi Babu and others; that after Koduri Sathi Babu was arrested and released in that case, he was kidnapped and murdered in the year 2002; that in that connection, a case in Crime No.262 of 2002 was registered; that after the death of Sathi Babu, one Vakapalli Srinivas, brother of the deceased Vakapalli Chinna had established ‘Vakapalli Chinna Mitra Mandali’; that the deceased herein and his followers were the active participants in that Mitra Mandali; that accused 1 and 4 are rowdy sheeters; that there were cases of assault against accused 2 and 3, and that accused No.6 is a close associate of accused 1 to 5. That there used to be attacks by the members of Vakapalli Chinna Mitra Mandali on the shop of accused 2 and 3; that the deceased and his associates had also warned accused 2 and 3; that disputes developed among them; that accused 2 and 3 and their supporters decided to do away with the deceased; that in furtherance of common intention of all the accused, they formed themselves into a group and waylaid at Namalavaripalem, on 09-02-2004 in the evening time; that on that day, the deceased, P.Ws.1, 2, 3, 6 and 7 were returning to Amalapuram via Namalavaripalem after participating in Janda Panduga programme in Ainavilli, at about 4.30 p.m., the deceased and P.W.1 were coming on one motorcycle, P.Ws.2 and 3 were coming on another motorcycle and P.Ws.6 and 7 were coming on a scooter and when they reached Namalavaripalem, hamlet of A.Vemavaram by about 4.30 p.m., all the accused suddenly came on to the road and attacked the deceased; that accused No.1 hacked the deceased on his both hands and on his neck with a knife; that accused No.2 hacked the deceased with a knife on both hands and on back of the right shoulder; that accused No.3 hacked the deceased with a knife on the back side of the left shoulder; that the deceased raised cries, ran and fell down near a Date palm tree on the edge of the canal by the side of the road; that all the accused hacked him with knives indiscriminately; that when P.Ws.1, 2, 3 tried to interfere, they were threatened by them with deaths if they came to rescue; that after hacking the deceased, all the accused left the place and that thereafter, the deceased was shifted to the Area Hospital, Amalapuram by P.Ws.1, 2, 3, where the duty doctor declared him dead. That on 09-02-2004 at 7.30 p.m., P.W.1 gave a report under Ex.P-1 to the Police and that after completing investigation and all the formalities, P.W.14 filed a charge-sheet against all the accused. 6. Charges under Sections 148 and 302 IPC or in the alternative, Section 302 read with Section 149 IPC were framed, read over and explained to the accused in Telugu for which, they pleaded not guilty and claimed to be tried. 7. In order to establish its case, the prosecution has examined P.Ws.1 to 14 and got marked Exs.P-1 to P-32 and also M.Os.1 to 28. On behalf of the defence, no oral or documentary evidence was adduced. 8. On hearing both sides and after appreciating the entire evidence on record, both oral and documentary, the trial Court had found accused 1, 2, 3 and 5 guilty for the offences punishable under Sections 148 and 302 read with Section 149 IPC, convicted and sentenced them to imprisonment, as stated above, while acquitting accused 4 and 6 of the charges levelled against them. 9. Aggrieved by the said judgment of conviction and sentences, accused 1, 2, 3 and 5 have preferred the present appeal. 10. Sri C.Padmanabha Reddy, learned Senior Counsel, has raised the following grounds : firstly; that the trial Court was in serious error in recording an order of conviction for the offence under Section 148 IPC and also under Section 302 read with Section 149 IPC when the accused who were convicted were only four in number. In other words, it is his contention that the conditions stipulated in Section 141 IPC were not satisfied and in such a case, it is an error apparent committed by the trial Court in convicting accused 1, 2, 3 and 5 for the offence under Section 302 read with Section 149 IPC and also convicting them for the offence under Section 148 IPC; secondly; that the trial Court was in error in relying on the evidence of P.W.2, who was declared as hostile to the prosecution, for the purpose of convicting accused 1, 2, 3 and 5 and further, that no special reasons had been assigned by the trial Court in order to place reliance on the evidence of P.W.2, despite the fact that he was declared as hostile to the prosecution; thirdly; that the trial Court committed an error in appreciating the evidence of P.W.6. In this regard, it is his contention that the trial Court while declaring that the evidentiary value of P.W.6 is nullified by virtue of his conduct and therefore, no reliance can be placed on the evidence of P.W.6. But, according to him, the trial Court placed partial reliance on the evidence of P.W.6 while simultaneously declaring that the evidence of P.W.6 cannot be accepted; and lastly; that the evidence of P.W.1 is also totally of no consequence, inasmuch as P.W.1 was declared as hostile to the prosecution and that his evidence was not corroborated by the complaint in Ex.P-1. In this connection, it is his contention that the names of the accused were not mentioned in Ex.P-1, which was the information furnished to the Police at the earliest point of time. Therefore, suppression of those facts at the earliest point of time and totally giving a new version before the trial Court is nothing but an improvement and in which case, the evidence of P.W.1 is to be disbelieved. Of course, the trial Court had rightly declared P.W.1 as hostile to the prosecution, inasmuch as he did not support the case of prosecution. 11. The learned Public Prosecutor, on the other hand, contends that the evidence of P.W.2 has to be believed, though he was declared as hostile to the prosecution, for the purpose of proving the presence of the accused 1, 2, 3 and 5 at the scene of offence and to establish the commission of offence. It is his contention that merely because P.W.2 was declared as hostile to the prosecution, it is not imperative on the part of the trial Court to disregard the entire version of P.W.2 in all respects and that the evidence of such hostile witness can be accepted and relied on, subject to certain limitations and to a limited extent, as permissible under law. He further contended that the trial Court had appreciated the evidence on record in right perspective in detail and therefore, it is eminently a fit case to accept the view taken by the trial Court. 12. In view of the relative contentions, the only point that arises for consideration in this appeal is – Whether the trial Court was right in appreciation of the evidence on record before recording an order of conviction against accused 1,2, 3 and 5 for the offences under Sections 148 and 302 read with Section 149 IPC ? 13. Point :- In the light of the above factual position, it is apposite for this Court to first deal with the aspect of sustainability of the findings recorded by the trial Court in convicting accused 1, 2, 3 and 5 for the offence under Section 148 IPC and fasten the accused with the liability under Section 149 IPC. 14. It is settled law that the conditions stipulated in Section 141 IPC, which deals with ‘unlawful assembly’ specifically postulates that the unlawful assembly must contain five or more persons with the common object. Obviously, in the present case, out of six accused only four accused against whom, according to the reasoning assigned by the trial Court, were involved in the commission of the offence. Therefore, the question of satisfaction of the conditions incorporated in Section 141 IPC does not arise and in which case, the question of convicting accused 1, 2, 3 and 5 for the offences under Sections 148 and 149 IPC also equally does not arise. 15. In this regard, it is proper for us to rely on the principle laid down by the apex Court in Amar Singh v. State of Punjab[1], at paras 7 and 8, which is as under: “7. In assailing the judgment of the High Court, the first point that has been urged by Mr. Frank Anthony, learned Counsel appearing on behalf of the appellants Nos.1 and 2, is that the conviction of the appellants under sections 148 and 149, IPC is bad inasmuch as of the seven accused, the trial court had acquitted two of them, namely, Amar Singh and Rattan Singh, both sons of Isher Das, and the High Court acquitted the accused Bachan Singh. It is submitted that after the acquittal of the three accused persons out of seven, the appellants who are the remaining four, cannot be held to have formed an unlawful assembly within the meaning of section 141, IPC and, accordingly, the charges under sections 148 and 149, IPC were not at all maintainable. 8. In our opinion, there is much force in the contention. As the appellants were only four in number, there was no question of their forming an unlawful assembly within the meaning of section 141, IPC. It is not the prosecution case that apart from the said seven accused persons, there were other persons who were involved in the crime. Therefore, on the acquittal of three accused persons, the remaining four accused, that is, the appellants, cannot be convicted under Section 148 or section 149, IPC for any offence, for, the first condition to be fulfilled in designating an assembly an “unlawful assembly” is that such assembly must be of five or more persons, as required under section 141, IPC. In our opinion, the convictions of the appellants under sections 148 and 149 IPC cannot be sustained.” 16. The facts of the present case do squarely fall within the parameters of the judgment of the apex Court in Amar Singh’s case (1 supra). Therefore, we have no hesitation to hold that the trial Court was in serious error in recording an order of conviction against accused 1, 2, 3 and 5 for the offences under Sections 148 and 149 IPC. 17. Now, the first incidental and consequential question that falls for consideration is as to for what offences, accused 1, 2, 3 and 5 have to be convicted if this Court is of the opinion that it was only accused 1, 2, 3 and 5, who were responsible for the commission of offence. The answer is simple. 18. The apex Court in MALLAPPA v. STATE OF KARNATAKA[2] at para 6 held as under: “6. … … … … … As pointed out in cases of this nature, the overt act test need not only be a decisive test but is one of the legitimate tests to be applied while scrutinizing the evidence. If such overt acts are mentioned consistently right from the stage of the FIR and if the medical evidence supports it, then such of those accused to whom such overt acts have been attributed could safely be members of the unlawful assembly with the common object of committing those offences. … … … … …” 19. As laid down by the apex Court in MALLAPPA’s case (2 supra), it is only the accused, in case of guilt is proved, would and should have to be held responsible for their individual acts. 20. Now, the second incidental and consequential question that falls for consideration is as to for what offences, accused 1, 2, 3 and 5 are to be found guilty and be convicted. 21. In order to answer the said question, it is necessary for us to go through the evidence that is on record. 22. As already pointed out, P.W.1 was declared as hostile to the prosecution. However, it is to be noted that he narrated about the manner in which the process of commission of the offences kick started and ended, and in that process, he deposed about the presence of accused 1 to 6, by names in the complaint under Ex.P-1. 23. But, the said names were not deposed by P.W.1 during trial before the trial Court. This is a vital omission. Precisely that is the reason why, he was rightly declared as hostile to the prosecution by the trial Court. In other words, he did not support the case of prosecution nor did support his own version made in Ex.P-1 complaint. Hence, the testimony of P.W.1 has to be eschewed totally from consideration. 24. Now, coming to P.W.2, who also was declared as hostile to the prosecution, he stated in his examination-in-chief that “1st accused, 2nd accused, 3rd accused and the 5th accused were among the assailants who attacked Namana Sankar.” It was pointed out by the trial Court that the presence of P.W.2 was very much established by the evidence of P.W.1. 25. In this context, it is to be remembered that the evidence of P.W.1 was already considered both by the trial Court as well as by us and arrived at the conclusion that the evidence of P.W.1 has to be eschewed from consideration for all purposes. But, the trial Court relied on the evidence of P.W.1 in order to establish the presence of P.W.2. In our considered view, this is a strange approach of appreciating the evidence on record by the trial Court. 26. From a perusal of the impugned judgment, it is obvious that it is only this part of the evidence of P.W.2, where he stated that out of five or more persons, four persons were present before the trial Court, who are no other than accused 1, 2, 3 and 5. Nothing was stated against the other accused i.e., accused 4 and 6, by P.W.2. Even otherwise, the evidence of P.W.2 would, in fact, support the case of the defence, at least to the extent of establishing the fact that there were only four persons involved in the offence. 27. But, however, we are not convinced with the reasoning assigned by the trial Court while agreeing with the version of P.W.2 as regards the involvement of accused 1, 2, 3 and 5. Merely because P.W.2 stated the names of accused persons and gave an account of the extent and manner in which the incident took place, it does not mean that he was an eyewitness to the incident and everything was correctly stated by him. 28. Surprisingly, basing on such vague statement of P.W.2, particularly who was declared as hostile to the prosecution, the learned Judge has observed in the impugned judgment that, “The accused 1, 2, 3 and 5 and two or three other persons had caused the death of the deceased.” 29. We are rather baffled with the reasoning assigned by the trial Court in the above circumstances. Notwithstanding the facts that there was no material as such on record, or when there was no material as regards the number of persons involved or when there was nothing stated by P.W.2, the learned Judge had arrived at the above conclusion. This kind of presumption is totally unknown the tenets of criminal adjudication, in the present set of facts. 30. P.W.3, who was cited as an eyewitness, also was declared as hostile to the prosecution and his evidence was not at all taken into consideration. Therefore, we have no material before us to express any view as regards the deposition made by P.W.3. 31. Similarly, P.W.7 also did not support the case of prosecution and accordingly, his evidence was not considered by the trial Court for any purpose. Therefore, we are not making any mention about the evidence of P.W.7. 32. Now, it is necessary for us to have a look at the evidence of P.W.6. It is the evidence of P.W.6 that he was an eyewitness to the scene of occurrence from the beginning and he saw the accused hacking the deceased with knives and he was a party to the group of persons, who shifted the deceased to a private hospital and from there, on advice, the deceased was shifted to the Government Hospital and all the people belonging to the political party to which the deceased belong to, assembled at the hospital at 5.15 p.m., that P.W.6 also was a party and actively participating in the said meeting/visit held at the hospital and that he was there till 10 O’ Clock in the night. But the most intriguing aspect to be noticed is that he did not speak a word about the method and manner in which the offences took place to anyone till next day morning at 10 O’ Cock. It is rather indiscernible as to why an important person and a close follower of the deceased and the political party he belongs to, did keep quiet for one whole day and disclosed as to what had happened on the previous day to the Police. 33. The above conduct on the part of P.W.6 is sufficient to raise the eyebrows. A normal and prudent person, particularly a person who is a close follower of the political group to which the deceased belong to, would not keep quiet without disclosing the facts to anyone and maintain absolute silence till next day morning. This strange conduct, which leads to a situation of absolute and convincing doubt about the knowledge of P.W.6 about the events of the offence and therefore, even though he made certain statements in the trial Court about the involvement of some of the accused and the manner in which the offence took place, still, by virtue of his peculiar conduct in maintaining silence for one whole day and revealing the facts only for the first time before the Police, his evidence cannot be believed. 34. The trial Court, in fact, did not believe the evidence of P.W.6. Yet again a mistake had been committed by the trial Court while appreciating the evidence of P.W.6 by relying on his evidence to some extent. As already pointed out by us, the approach of the trial Court in appreciating the evidence of P.W.6; and P.W.2, who was declared as hostile to the prosecution, was totally erroneous and contrary to the established principles of law. 35. Nextly, it is next to be seen that from the evidence of the above witnesses, it is abundantly clear that no witness did say anything about the specific overt acts attributable to the accused. Of course, there are as many as 26 injuries found over the body of the deceased. But, that by itself cannot be a ground to fix accused 1, 2, 3, and 5 the offences with which they were charged, for the reason that there is no evidence, much less adequate, to record an order of conviction against them and as a consequence, this Court is not able to fix the liability of any of the accused for their individual acts also. Therefore, the end result is -- there is no evidence on record in order to attribute individual overt acts to any of the accused. 36. In such circumstances, we are of the considered view that it is absolutely unsafe to agree with the order of conviction and sentences awarded by the trial Court and accordingly, accused 1, 2, 3 and 5 are entitled to the benefit of doubt, inasmuch as the prosecution had failed totally in bringing home their guilt beyond all reasonable doubt. 37. For the aforementioned, the impugned judgment is liable to be set aside. 38. In the result, the appeal is allowed and the impugned judgment, dated 25-10-2007, in Sessions Case No.325 of 2005, passed by the II Additional Sessions Judge, Amalapuram, East Godavari district is set aside and consequently, the appellants- accused 1, 2, 3 and 5 are entitled to be acquitted on all counts and as a result, they are to be set at liberty forthwith, if not required in any other case. The fine amount, if any, paid by the appellants shall be refunded to them. ____________________ JUSTICE D.S.R.VARMA ____________________ JUSTICE SANJAY KUMAR 16th September, 2009. Ak THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR Criminal Appeal No.1618 of 2007 (Judgment of the Division Bench delivered by DSRV, J.) 16th September, 2009. [1] A. I. R. 1987 SUPREME COURT 826 [2] 1995 Supp (1) SCC 767