* THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE M.S.K. JAISWAL Criminal Appeal Nos.1021, 1022, 1023, 1024, 1025, 1045, 1046, 1060 of 2007 & 470 of 2011 (Order of the Bench delivered by the Hon’ble Sri Justice L. Narasimha Reddy) % 22-04-2014 #Chidipudi Srinivasa Reddy and others ..appellants Vs. $The State of A.P. Rep. by the Public Prosecutor, High Court of A.P. ..Respondent !Counsel for the appellants : Sri T. Bali Reddy, Sr. Counsel Sri O. Kailashnath Reddy, Sri N. Vidya Prasad, Sri D. Pradyumna Kumar Reddy, Smt.C.Vasundhara Reddy, Smt A. Gayatri Reddy ^Counsel for the Respondent : Sri Bojja Tarakam, Spl. PP Sri V. Raghunath, Spl. PP < GIST: > HEAD NOTE: ? Cases referred AIR 1956 SC 181 THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE M.S.K. JAISWAL Criminal Appeal Nos.1021, 1022, 1023, 1024, 1025, 1045, 1046, 1060 of 2007 & 470 of 2011 COMMON JUDGMENT: (Per the Hon’ble Sri Justice L. Narasimha Reddy) Tsundur is a village in Guntur District with fertile lands, and the basic activity of the villagers is ‘Agriculture’. It is on the railway line between Vijayawada and Madras, and there is a Railway Station at that place. Its neighbouring village on the southern side is, Modukuru with almost similar features. As in any Agricultural Village, the lands are held by some and landless poor, mostly from Scheduled Castes, are engaged in the Agricultural operations. For some reason on the other, the relation between ‘Dalits’ and the landholders, such as Reddies and Telagas are said to be not so congenial, even from 1940’s. However, except for the expression of differences and protests, no major incident appears to have taken place, obviously because elders from the respective communities ensured that the manifestation of differences does not cross a point. In the recent past, however, the youth were not able to put up with the same state of affairs, and they did not miss any opportunity to assert themselves. The police were also acting promptly, and steps, such as, imposition of prohibitory orders, binding over the persons under Section 107 Cr.P.C., were being resorted to. It was the view of the police, the youth have fallen into the hands of radical elements, they were brain washed, and were waiting for an opportunity to pollute the otherwise peaceful atmosphere in and around said villages. On 13.10.1990, ‘Chintamani’ drama’ was organized in the village by the youth belonging to ‘Telaga’ community. One Dayani Dhana Raj (PW-15) and some other youth from Dalit Community are said to have picked up quarrel on a trivial issue and beat one Ambati Narasimha Rao, with deadly weapons. Crime No.51 of 1990 was registered by the Police Station Tsundur, in relation thereto, and was being tried as C.C.No.37 of 1990 in the Court of Additional Sessions judge, Tenali. On the next day, Nakka Jyothi Babu and five others are said to have attacked Padala Srinivas of ‘Telaga’ community. Crime No.52 of 1990 was registered in relation thereto. Another incident reported by the police is that Crime No.52 of 1991 was registered when a Harijan boy, by name, G. Ravi (not examined) is said to have placed his legs on front seat, touching one Sri K. Srinivas Reddy. The situation is said to have developed to such an extent that ‘Reddies’ and ‘Telagas’ who are not united till then, became friends vis-à-vis Dalits. Some minor incidents have also taken place and orders under Section 144 Cr.P.C., were passed during July 1991. On 04.08.1991, D.Rajaa, Dalit boy is said to have outraged the modesty of three girls belonging to ‘Reddy’ community, by rubbing his shoulders with them, and when he was questioned by T. Krishna Reddy, he stabbed him with knife, collected from the nearby bunk. Crime No.58 of 1991 was registered under Section 354 and 324 IPC in relation to that incident. On 05.08.1991, another incident took place leading to registration of Crime No.59/91 under Sections 341 and 324 IPC. Though the police pickets were existing already, additional force was deployed on that day. Both the groups are said to have gathered at 3.00 p.m., near Bose Statue centre and pelted stones on each other. That resulted in registration of Crime Nos. 60 and 61 of 1991. What happened on 06.08.1991 has virtually shaken the entire State, and became sensational. However, there are different versions about the sequence of events that took place on that day. According to the police, at about 11.30 a.m., on 06.08.1991, one P. Mohan Rao (not examined ) and others of ‘Dalit’ community have attacked one Sri V. Siva Koti Reddy, aged about 60 years, in the fields with deadly weapons and Crime No.63 of 1991 under Sections 147, 148, 324 and 329 IPC was registered in relation thereto. At another place, Medikonda Subba Rao (PW.1), Dhan Raj (PW.15), M. Venkateswarlu (not examined), and seven other Dalits of Tsundur Village, are said to have attacked three persons, namely, V.A. Reddy, and Modugula Mutta Reddy with deadly weapons, like, knives, rods and sticks. Crime No.64 of 1991 was registered under Sections 147, 148, 322, 307 r/w 149 IPC. On the same day, about 300 persons of Reddy and Telaga community, are said to have gathered before the police station, armed with deadly weapons, like Sticks, rods, knives, axes and spheres. At about the same time, the police are said to have entered the Harijanwada, in search of male members, and afraid of that, all the male members in the Harijanwada ran away. While one group is said to have gone on the Tsundur to Modukuru road in the southern direction, another group is said to have gone towards the railway gate on the southern side of the Village. The ‘Reddys’ and ‘Telagas’, who gathered before the police station, are also said to have ran towards Harijans and chased them. Another 50 or 60 persons armed with knives, sticks and spheres are said to have come in a tractor (MO.1) on the Modukuru Road and chased the harijans. Alleging that the persons from the group, which went towards Modukur road killed Jaladi Immanuel (D1), Jaladi Jalaiah (D2), Jaladi Mattaiah (D3), and Mallela Subba Rao, near the Tungabhadra Drain Canal, and the persons of the same group, that have chased Dalits, waiting at southern gate, killed Mandru Ramesh (D4) at the first branch canal of new canal, and Jaladi Isaac (D5), Angala Kuduru Raja Mohan Rao (D6), Sankuru Samson (D7) and Devarapalli Jaya Raj, in the vicinity of the room of gateman, at the railway gate, nearby Mothukur Railway station, known as ‘Karla gate’, and that Panthagani Jakaraiah, PW.8, and Dayari Dhanraj, PW.15 were inflicted with injuries, ten crimes were registered. A comprehensive investigation was undertaken by Deputy Superintendent of Police, Tenali, wherein, 134 Listed Witnesses were examined. A charge sheet was filed, alleging the offences against 219 accused, alleging offences punishable under various provisions of IPC, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short ‘the Act’). On committal, the case was taken up as S.C.No.36/1993. A Special Court for trial of this case, exclusively was constituted with its seat at Tsundur itself. A Special Public prosecutor was also appointed by the Government for this case. It remained pending on the file of the trial Court for more than a decade, on account of various reasons. During the pendency of the case, 33 accused died. In the course of the trial, PWs.1 to 70 were examined and Exs.P1 to P61 were filed. Mos. 1 to 51 were also taken on record. On behalf of the defence, DWs.1 to 8 were examined and Exs.D1 to D267 were filed. The Special Public prosecutor virtually conceded that there are no cases pending against 41 accused. After the Marathon trial, the judgment was pronounced on 31.07.2007. The summary of the judgment is as under: Victim Crime Accused P r o v i s i o n of law Sentence PW8 Causing injuries A50, A215 324 IPC PW15 - do - A28, A31, A50 and A139 - do- D1 Causing death A6, A20 3 0 2 IPC alternatively Section 3, 2 and 5 of SCs and STs (POA) Act, 1898 (for short “the Act) Life imprisonment D2 - do- A3, A14, A23 - do- - do- D3 - do- A50, A56 - do- - do- D4 - do- A57, A58, A88 - do- - do- D5 - do- A104, A150 - do- - do- D6 - do- A 5 , A28, A31, A64 - do- D7 - do- A95 - do- - do- D8 - do- A11, A89, A190 - do- Almost all the accused referred to above, and some others were also found guilty of causing disappearance of the evidence, as well as, using deadly weapons in committing the crime punishable under Section 148 IPC. The punishment of imprisonment for life and fine of Rs.3,000/- each, was imposed on all the accused that were found guilty of offences punishable under Section 302 r/w 34 IPC. For the offence punishable under Section 201 IPC, punishment of Rigorous imprisonment for one year and fine of Rs.1,000/-, in default, to undergo Rigorous imprisonment for one month was imposed and for the offence punishable under Section 148 IPC, sentence of Rigorous Imprisonment for one year and fine of Rs.2,000/- each , in default, to undergo Rigorous Imprisonment for one month, was imposed. These appeals are preferred by the accused that were found guilty of one offence or the other. The State filed Criminal Appeal No.389 of 2008, seeking enhancement of the punishment against the accused, who were found guilty. It has also filed Criminal Appeal No.988 of 2008 challenging the acquittal of the other accused. Some of the prosecution witnesses filed Criminal Revision Case No.829 of 2008, assailing acquittal, as well as, adequacy of sentence. At a time when the appeals preferred by the convicted accused were listed for hearing in the year 2011, the then Special Public Prosecutor filed 3 Criminal Appeals and Criminal Revision together with the applications for condonation of delay of about 1400 days. The appeals preferred by the State could not be taken up along with the appeals filed by the convicted accused on account of the fact that the matter relating to condonation of delay was not decided yet. We too made an endeavour to hear all the connected matters together. That, however, did not materialise. The following part of order dated 21-03-2014 would reveal the developments. “…When the matters were listed thereafter, the learned Special Public Prosecutors brought to our notice, that three more appeals and one revision were filed in the year 2011 by the then Special Public Prosecutor against the acquittal, and the applications for condonation of delay in those matters are still pending. On verification, we found that the delay involved was about 1400 days. Since notice was already ordered by this Court, we found ourselves in a typical situation. Taking note of the fact that all the acquitted accused figured as parties in Criminal Revision Case, filed by some PWs, we indicated to the learned Special Public Prosecutors that they can put forward their contentions in that very revision, and if necessary, the delay can also be condoned, so that the hearing of the matters is not postponed any further. However, they insisted that in the event of the delay being condoned, the appeals may have to be numbered and once again notices must be served upon all the respondents in such appeals, and till then, the appeals filed by the convicted accused cannot be taken up. We found this objection, to be not satisfactory, since it would result in an indefinite postponement of the hearing of the appeals filed by the convicted persons. Therefore, we passed an order, directing that the application for condonation of delay as well as the appeals filed by the State be separated and the appeals preferred by the convicted accused be listed for hearing...” Thus, the appeals preferred by the convicted accused are taken up, and the appeals preferred by the State, and revision filed by some of the prosecution witnesses are separated, through a detailed order. The arguments on behalf of the appellants are advanced by Sri T.Bali Reddy, learned Senior Counsel, Sri O. Kailashnath Reddy, Sri N.Vidya Prasad, Sri D. Pradyumna Kumar Reddy, Smt. C.Vasundhara Reddy, Smt A. Gayatri Reddy. They submit that the situation in and around Tsundur Village was tense, for quite some months before August, 1991 and several criminal cases were registered in relation to various incidents, and armed police was deployed, and the Sub Inspectors of Police from the neighbouring stations, were also assigned the duties for maintaining Law and Order in Tsundur Village and Modukuru Village. They contend that in most of the crimes, the youth from ‘Dalits’ were shown as accused, and on 06.08.1991 also, as many as, four persons from ‘Reddy’ community were attacked by PWs.8, 15 and others with deadly weapons, leading to registration of cases. Learned counsel submit that not only the police administration but also anyone from the Village, were not aware of any deaths taking place on 06.08.1991 in and around Tsundur Village, and it was only when the dead bodies of the deceased were noticed in the nearby canals from 07.08.1991 onwards, that the ‘Dalit’ Organizations started protesting that the police had woven out cases, to implicate the persons on the lines of community. They submit that the trial Court itself discarded the evidence of more than half of the so-called eye witnesses by citing cogent reasons, and the evidence of other witnesses, is equally unreliable. It is argued by the learned counsel for the appellants that the trial Court failed to take into account, several important aspects, and had held the appellants guilty of causing the death of D1 to D8. They contend that in almost every inquest report, pertaining to the deceased, a clear statement was made to the effect that the respective deceased was last seen in the company of various persons between 2.00 and 4.00 p.m., on 06.08.1991, whereas, they are said to have been killed at around 12.00 noon on that day. They submit that the uniform tutored version of all the prosecution witnesses was that the police entered Harijanwada between 11.00 and 11.30 a.m., and chased all the male members, and afraid of being arrested, all the male members ran away from the village and were waiting at distant places, whereas, PW.57, the Sub Inspector of Police stated that himself, and other police officials came to the southern gate, whereas PW.15, D1, D4 to D8 and others were waiting. They submit that when the police were very much with the persons waiting at the southern gate, the very theory of the chasing by the police turns out to be false. Learned counsel further submit that PWs.57 and 59, the then S.I of Police, Tsundur categorically stated that the group of Reddies and Telagas, who were before the police station, came running towards southern gate, where Harijans were waiting, and when the first group started chasing the second group, the police chased the group of Reddies and Telagas, and unable to catch any of them, they came back. According to the learned counsel, such a statement is not only ridiculous but also shameful on the part of the police. They further submit that though at one point of time, PW-59, the S.I of police is said to have apprehended about 50 ‘Reddy’ community persons, of the same group, together with weapons, he set them free on the instructions of C.I of police, but the same was belied by the evidence of other witnesses. It is also argued that almost every witness referred to MO.1-Tractor and trailer, and many of them stated that it was parked at a distance of 100 yards i.e., 300 ft from them and they heard utterances of the persons, who are said to have got down from the tractor, which according to them is highly impossible. They submit that while one of the witnesses stated that the tractor was proceeding on Modukuru road, by which time, PWs.1 to 8 have hidden in Jasmine or Mango garden, and on seeing them, A1 stopped Tractor, rest of the witnesses stated that the tractor was stopped at a distance of 100 yds, from there, and the assailants came running. As regards D1 to D3, learned counsel submit that, PW.1 himself was an accused in several cases and the President of Dalit Organization, and his evidence is totally interested and untrustworthy. They contend that at one breath, PW.1 stated that he does not know swimming, and at another breath stated that he crossed the drain canal of width of about 150 ft. to 200 ft., with water flowing at a depth of about 10ft . As regards PW.4, they submit that though his father and uncle are said to have been killed right before him, he did not even raise cries, much less, did he at least go to the dead bodies, even after the alleged assailants have left the place. Learned counsel further submit that the persons, who are said to have seen the killing of D1 to D3, did not inform about that to anyone, till their statements were recorded by the police, and even those statements have been disowned by them. They submit that it is just unimaginable that any person, if, in fact, has witnessed any harm, not to speak of murder, their near and dear, would remain silent, particularly, when the commotion in the village was existing for past several months. They submit that when such a large contingent of police is in the village, it is unimaginable that even a small incident of criminal act would not remain unnoticed. Regarding the deaths of D5 to D8, learned counsel submit that almost all the witnesses who spoke about the incident stated that they have seen the incident of killing of D-5 to D-8 by hiding near the room of the railway gateman, and have also seen the dead bodies having been taken near by cattle shed, and since the railway gate is almost in the middle of the village, and is surrounded by various establishments, one just cannot think the criminal act or the dead bodies not being noticed by anyone of that Village. It is also their case that the bodies of D-5 to D-7 are said to have been noticed at various places, and nobody spoke as to how, the bodies of those deceased were removed from the cattle shed. Regarding the death of D4, learned counsel submit that the same persons, who spoke about D-5 to D-8, spoke in relation to D4 also and their evidence is equally untrustworthy. Learned counsel submit that the version of PW.15 about the attack on him, and taking of blood from him, are so artificial that even after such an alleged attack, and removal of blood, he is said to have walked or swam in the new canal, up to distance of about 3 KMs., that too against flow. They submit that though PW.15 is said to have been rescued by two ladies, they have not been examined. Learned counsel further submit that though almost all the witnesses stated that they have taken shelter at Tenali, for 3 to 4 days not a single person in whose houses, these persons have stayed, were examined and their versions deserve to be ignored. Other contentions were also urged. Sri Bojja Tarakam, learned Senior Counsel and Sri V. Raghunath, learned counsel were appointed as Special Public Prosecutors in this case. While Sri Tarakam advanced extensive arguments, Sri Raghunath, has ably assisted him by taking us through the voluminous record and supplementing the arguments. Sri Tarakam, submits that almost a genocide has taken place in the Village, where the victims were living. He contends that the oppression of Dalits in the Village was going on for decades together, and around the year 1990, when Dalits started asserting their rights or opposing the oppression, Reddies and Telagas of the Village united for elimination of the Dalits who questioned them. He submits that though Police picket was arranged in the Village, the Police officials have taken the side of the affluent and the same is evident from the fact that in the morning of the fateful day, large contingent of police entered the Dalitwada and chased all the male members. He submits that taking advantage of this chasing, a group of Reddies and Telagas, who were already present near the police station in large number with weapons, have chased the Dalits who were standing at two places i.e. at the southern gate and on the Modukuru road, and have killed 8 persons, apart from injuring many others. Learned counsel submits that the incident was so ghastly and gruesome, that while many have escaped, the others who happened to see the incident, reeled under shock for many days, and obviously for that reason, no complaint was made. He submits that the prosecution has established beyond any pale of doubt, the manner in which D-1 to D-3 were killed and the dead bodies were thrown into water. Learned Senior counsel submits that though the trial Court disbelieved the evidence of PWs 2, 3, 5 and 6, the evidence of PWs 1, 4 and 7 was consistent and clear and accordingly, the concerned accused were convicted. He submits that the details of attack and the killing of D-4, D-5 to D-8 were also presented by the eye-witnesses and there do not exist any reasons, to disbelieve the evidence of those witnesses. Learned Senior Counsel submits that the inconsistencies or defects pointed out by the learned counsel for the appellants are on trivial aspects and on material aspects, the evidence is consistent. He submits that the discrepancy as to the timings mentioned in the inquest reports or the statements recorded from the witnesses can squarely be attributed to the indifference of police who failed to rescue the innocent poor persons of the Village. He further submits that when such a holocaust has taken place and terror was created in both the Villages, the parameter or norms, adopted in crimes committed by individuals, in the ordinary circumstances; cannot be applied. He contends that the evidence on record is in fact, adequate to convict the other accused also and for enhancement of the punishment awarded to the appellants herein. He has advanced arguments on other supplemental grounds also. A small prologue becomes necessary before the discussion is undertaken, on merits. The case became sensational, obviously because large number of Dalits were put to death. The agitation on caste lines has virtually shaken the State for quite a considerable time. Since many of the accused and the appellants herein are from Reddy Community, we verified from the learned Special Public Prosecutors, before the commencement of arguments, as to whether they have any objection for this Bench, to hear the appeals. Both of them stated that they have absolutely no objection, and only then, the hearing was commenced. At a time when we were disposing of 6 to 8 criminal appeals, per day, we had to devote weeks together, for this case. The record itself runs into four big volumes. The arguments on behalf of the appellants were advanced for 8 working days. The learned Special Public Prosecutors argued for two days, and on the third day, an oral submission was made to the effect that they have no faith in the Bench. Taken by surprise, we insisted on the reasons. An affidavit by one Sri Moses, said to be associated with an organisation and who did not figure as a witness in the case; was filed stating that he lost faith in the Bench, having regard to the way, the proceedings were going on. To be guided in this behalf, we requested the learned Attorney General of India to render assistance. On his behalf, the Additional Solicitor General, Sri Wilson,