THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No.607 of 2007 Date of Judgment: 03 --12—2010 Between Thippagandla Gangadhar and others ..Appellants and State of A.P. rep. by PP, High Court of A.P., Hyderabad. ..Respondent The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No.607 of 2007 Oral Judgment: (Per Honourable Sri Justice A.Gopal Reddy) 1. This is an appeal filed by the convicted accused 1 to 5 and 7 in S.C.No.90 of 2005 on the file of Principal Sessions Judge, Cuddapah wherein the accused were tried on the following four charges. The case against A6 is abated due to his death. 2. The first charge is under Section 148 IPC against all the accused. The second charge is against A1 for the offence under Section 307 IPC. The third charge is against A2 to A7 for the offence under Section 307 r/w 149 IPC and the last charge is against A1 to A7 under Section 302 r/w 149 IPC. 3. The accused 1 to 5 and 7 were found guilty for the offence punishable under Section 148 IPC and sentenced them to undergo simple imprisonment for one year each. A1 was convicted for the offence punishable under Section 324 IPC instead of 307 IPC; all the other accused were convicted for the offence punishable under Section 324 r/w 149 IPC and sentenced each one of them to suffer simple imprisonment for six months; all the accused were also found guilty for the offence punishable under Section 302 r/w 149 IPC and sentenced to suffer imprisonment for life and also to pay fine of Rs.100/- each in default to suffer simple imprisonment for one week. All the sentences are directed to run concurrently. 4. The substance of the charge against the accused is that on 01-07- 2004 at 7.30 P.M. they formed into an unlawful assembly, armed with deadly weapons and in furtherance of their common object caused the death of one Payasamraju @ Bellamraju (hereinafter called “the deceased”) by hacking with Machu Kathi (knife) indiscriminately. During the course of same transaction, they further attempted to cause the death of one Yenasari Ayyavaraiah—L.W.2 (not examined as reported dead). 5. The case of the prosecution unfolded during the course of trial may, briefly, be stated as under: P.W.1 is the brother and P.W.3 is the nephew of the deceased. The deceased belongs to Congress Party and active member. While so, one year prior to the date of incident, the deceased on coming to know that A1, A3, A4 and A6 conspired together to kill him, lodged a report to the police against them. On that, A1 was arrested and his revolver was seized. Since then, the accused bore grudge against the deceased. On the date of incident i.e. on 01-07-2004 at about 8 P.M., while the deceased and P.W.1 were proceeding towards their house, on the way near the shop of P.W.4, Ayyavaraiah (L.W.2) also joined them and on the way, P.W.1 stopped to attend natural call, and the deceased continued to proceed and when they reached near the house of A1, P.W.1, who was at a distance of 6 baras heard the cries and noticed all the accused armed with hunting sickles surrounded the deceased and Ayyavaraiah. A1 hacked Ayyavaraiah on his forehead. On receiving the said blow he fell down; then all the accused hacked the deceased indiscriminately and fled away saying “Chanipoyadu Padara”. Then P.W.1 went to the scene of offence. Meanwhile, villagers also gathered. P.Ws.3, 4 and 5 also witnessed the occurrence. Thereafter, P.W.1 and Ayyavaraiah went to the police station and lodged a complaint—Ex.P1. Basing on the said complaint, P.W.10—Sub-Inspector of Police, Vallur Police Station registered the same as case in Cr.No.52 of 2004 and issued FIR—Ex.P6; sent the injured—Ayyavaraiah to the hospital; proceeded to the scene of offence and handed over the subsequent investigation to P.W.11. On 02-07-2004, P.W.11—Inspector of Police visited the scene of offence, held inquest over the dead body of the deceased in the presence of P.Ws.2 and 7, which is marked as Ex.P2; prepared scene of offence panchanama; rough sketch—Ex.P7; thereafter, sent the dead body for postmortem examination. P.W.10, Civil Assistant Surgeon, Government Hospital, Kadapa held autopsy over the dead body of the deceased and opined that the cause of death was due to hemorrhage and shock. Ex.P.5 is the postmortem certificate. P.W.9 examined the injured Ayyaravaraiah and issued a wound certificate—Ex.P4. During the course of investigation, P.W.11 examined P.Ws.4 to 6 and recorded their statements; on 15-07-2004 he arrested the accused—A1 to A7 in the presence of P.W.8 and in pursuance of their statements, M.Os.8 to14 were recovered under a cover of panchanama—Ex.P3; then forwarded the material objects to RFSL. Ex.P9 is the FSL report. After receiving the relevant documents and on completion of investigation filed a charge sheet in the Court of I Additional Judicial Magistrate of First Class, Cuddapah. 6. On committal, the above charges have been framed read over and explained to the accused in Telugu, they denied the charges. 7. In support of its case, prosecution examined P.Ws.1 to 12 and got exhibited 9 documents—Exs.P1 to 9 besides case properties M.Os.1 to 14; whereas Exs.D1 to D4 were got marked on behalf of defence. 8. The learned Sessions Judge after scanning the evidence on record found all the accused guilty and sentenced them to imprisonment as aforementioned. 9. Sri C.Padmanabha Reddy, learned senior counsel appearing for the appellants/accused 1 to 5 and 7 contends that present case arises out of acute factionalism and the witnesses are partisan witness. In Ex.P1— complaint the presence of P.Ws.3, 4 and 5 has not been mentioned. The entire allegations are against A1 only. No specific overtacts are attributed against A2 to A5 and A7 except omnibus allegations. Therefore, it is unsafe to convict all the accused. All other accused have been charged with the aid of Section 149 IPC. Therefore, in such a case the constructive liability and overtact test propounded by the Supreme Court in MALLAPPA v. STATE OF KARNATAKA (1995 Supp (1) SCC 767) has to be followed for convicting the accused. 10. On the other hand, learned Public Prosecutor while supporting the judgment of the trial court contended that prosecution evidence clearly establishes participation of accused and individual attacks made by them. All the accused armed with hunting sickles attacked the deceased and L.W.2, which itself shows that they attacked the deceased with common object. The omission of presence of P.Ws.3, 4 and 5 in FIR will not affect the probabilities of the case. Non-mentioning the names of P.Ws.3, 4 and 5 witnessing the incident itself cannot be a ground to reject the case of prosecution, when the evidence of eyewitnesses is corroborated with the other evidence. 11. In view of the submissions, as referred above, the point that arises for consideration is: “Whether the prosecution is able to bring home the guilt of the accused beyond reasonable doubt and the conviction and sentence recorded by the trial court is liable to be interfered or modified.” 12. It is fairly well settled that First Information Report (FIR) is vital and valuable piece of evidence for corroborating the oral evidence adduced at trial but not the substantive piece of evidence. It can be used only to discredit the testimony of the maker thereof but cannot be used for contradicting or discrediting the testimony of other witnesses. 13. It is now fairly well settled that for determination of common object of unlawful assembly, the conduct of each of the members of unlawful assembly before and at the time of attack is of relevant consideration. The common object can be formed on the spur of moment. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. (See PANDURANG CHANDRAKANT MHATRE v. STATE OF MAHARASHTRA (2009) 10 SCC 773 and ALLAUDDIN MIAN SHARIF MIAN V. STATE OF BIHAR 1989 CRL.L.J. 1466 = (1989) 3 SCC 5). 14. In PANDURANG CHANDRAKANT MHATRE V. STATE OF MAHARASHTRA[1], the Supreme Court after referring to its earlier judgments in STATE OF UP v. BALLABH DAS (1985) 3 SCC 703) and STATE OF U.P. V. RAM SWARAUP (1988 (SUPP) SCC 262) held that in cases involving rival political factions or group enmities, it is not unusual to rope in persons other than who were actually involved. In such a case, court should guard against the danger of convicting innocent persons and scrutinize evidence carefully and, if doubt arises, benefit should be given to the accused. 15. Keeping in view the aforementioned legal propositions enunciated by the Supreme Court, we will now briefly set out the evidence adduced by the prosecution in support of its case. 16. According to the prosecution, P.Ws.1, 3 and 4 are said to be eye witnesses. 17. Payasam Yerra Subbaiah—P.W.1, who is the brother of the deceased, went to the police station where his statement was recorded by the Sub-Inspector of Police—P.W.10 under Ex.P1 wherein he stated that on 01-07-2004 about 7.30 P.M. himself and his elder brother—deceased while going to their house from Veera Reddy’s house, when they reached the main road, Yerrasani Ayyavaraiah—L.W.2 (died) joined them; when he was passing urine, deceased and Ayyavaraiah are going in front of him; when they passed some distance, he heard some cries and saw when Thippigandla Gangadhar (A1) hacking Ayyavaraiah with Matchukathi on the left side above forehead and caused bleeding injury; when he raised cries why this injustice, meanwhile, Thippigandla Gangadhar (A1), Obaiah @ Keekadu (A2), Thippigandla Subbarayudu (A4) Thippigandla Subbaiah (A5), Nagulagandla Vasu (A6) Thippigandla Avyyavari (A7) hacked the deceased on the middle of chest at three places, below the right hand wrist, above the right leg knee and on the neck. One year prior to the said incident, A1, A3, A6 and A4 came upon the deceased with an intention to kill him; at that time Vallur police came to know about the possession of revolver and matchukathulu by the accused, seized the revolver and the accused were taken into custody and a case was also filed which is pending. Keeping in mind that the deceased was instrumental in registering the case, the accused developed grudge against him. 18. While giving evidence in the Court he corroborated the statement but has not detailed that the accused hacked on the middle of chest on three places; below the right hand wrist; above the right leg knee and on the neck. It is stated that A1 hacked Ayyavaraiah on his fore head, when he fallen down to the ground, all the seven accused hacked the deceased indiscriminately and being afraid he stood where he saw; after the accused left the place he went to the scene of offence and found multiple injuries all over the dead body of the deceased; all the villagers gathered there; then himself and Ayyavaraiah went to the police station and gave a report where the police recorded his statement under Ex.P1. He deposed in the cross- examination that distance between the place where he was standing and the place of incident is about 5 or 6 feet; he has not stated A1 attacked Ayyavaraiah when he (Ayyavaraiah) and deceased stood there and Ayyavaraiah was also surrounded by the accused. When Ayyavaraiah was attacked, the deceased was at a distance of 2 feet only from him (deceased); there is an electric light burning over the Varandha of the shop and house of Gangamma (P.W.4). He denied the suggestion that the light available on the vasara will not reach the scene of incident. The deceased could not run away, as he was surrounded by the accused even when Ayyavaraiah was attacked. Few days prior to the incident elections were held for Assembly constituency, where the Congress Party and Telugudesam Party are the main contestants. They supported congress party and Veera Reddy and Mallikarjuna Reddy also supported the said party and accused also supported the Congress Party now they are supporting Thimmareddy. At about 9 P.M. he along with Ayyavaraiah went to the police station and reached there at 11 P.M. He has no personal knowledge of the incident happened one year prior to the present incident. The Accused Nos.1, 3, 4 and 6 did not attack the deceased one year prior to the incident, but apprehending that they would attack him, a report was given to the police. 19. P.W.10, who recorded the statement of P.W.1 under Ex.P1 at 11.30 P.M., stated that when he was in police station P.W.1 and Ayyavaraiah came there and he recorded the statement of P.W.1 and basing on it he registered a case in Cr.No.52 of 2004 and issued Ex.P6— FIR. He sent the injured Ayyavaraiah to hospital. He went to the scene of incident where the dead body of the deceased was lying on the road in front of the house of P.W.4 where electric bulb burning and with the help of the said light he noted the dead boy was lying there. 20. Yerrasani Subbarayudu—P.W.3 stated that while he was coming to the main road from his house, when he reached the house of A1 at a distance of 5 or 6 feet, he heard cries and observed that all the seven accused were there; A1 hacked Ayyavaraiah with a matchukathi on his forehead. All the seven accused surrounded the deceased and hacked him with matchukathulu indiscriminately. Thereafter, the seven accused left the place stating that they could go as the deceased died. After the accused left the place he went near the deceased and observed him with injuries on neck, face, hand and other parts of the body. He could observe the incident, as there were lights burning on the temple and also at the house of Gangamma (P.W.4). P.W.1 and Ayyavaraiah left for police station some time after the incident. He admitted that he was with the dead body of the deceased. In the cross-examination he deposed that he was one of the accused in the murder case filed in connection with the death of Nagulagandla Chinna Ayyavaraiah, who got a son by name Ayyavaraiah. The 6th accused was the cousin of Chinna Ayyavaraiah and the deceased was also an accused in the murder case of Chinna Ayyavaraiah. One Gangulaiah was also co-accused in the murder of case China Ayyavaraiah. Gangamma (P.W.4) is the sister in law of Gangulaiah. On the date of incident when he was going to the shop of Gangamma, which is on the main road, he observed by the time A1 beating Ayyavaraiah the deceased was besides him and other accused were surrounded him and hacked him. As Ayyavaraiah alone came to rescue the deceased, he was attacked; first Ayyavaraiah was hacked. He admitted that he stated to the police that he observed accused 1 to7 surrounded the deceased and hacked him; when Ayyavaraiah went to rescue, then A1 hacked Ayyavaraiah on his head. Both the incidents took place at one and the same time. 21. P.W.4 stated that A1 hacked Ayyavaraiah with matchukathi on the left side of forehead, all the 7 accused surrounded the deceased and killed him by hacking with matchukathulu and then fled away. In the cross- examination she stated that she could not say only seven persons participated in the incident and she cannot give their identify. Though in the chief examination she has given the names of A1 and other accused, but in the cross-examination she cannot give their identity. 22. P.W.5 stated that she is running sundry shop in her own house. When she is sitting in the shop, she heard cries from the side of A1’s house and she came out and witnessed the incident. All the seven accused were attacking the deceased with matchukathulu and when Ayyavaraiah intervened, A1 hacked him with matchukathi on his forehead. She stated that one year prior to the incident one Nagulagandla Chinna Ayyavaraiah was murdered and her son was also shown as accused in the said case. 23. P.W.8 stated that accused 1 to 7 have made a statement to the police and also produced some weapons from hay-rick and police seized them under a cover of panchanama—Ex.P3. M.Os.8 to 14 are the matchukathulu seized from the possession of A1 to A7. Himself and another panchayatdars singed on Ex.P3. the identify slips are affixed to the weapons which were seized from the accused. In the cross-examination he admitted that he did not secure any permission from the Mandal Revenue Officer to go to the Police Station. He saw the place where the weapons i.e. the hay-ricks were. A1 to A7 have took out those weapons at the rate of one each. 24. P.W.9, Civil Assistant Surgeon, Government Hospital, Kadapa who examined Ayyavaraiah found two injuries: 1. ¼ x 1½ cms. lacerated on left forehead and 2. ½ x ½ cms. abrasion on left eye brow. He opined that the above injuries are simple in nature and caused by blunt object. Ex.P4 is the wound certificate issued by him. He stated that with the blunt side of M.O.8 those injuries are possible. The tip of M.O.8 is blunt. 25. P.W.10, the doctor who conducted postmortem examination over the dead body of the deceased found as many as 13 external injuries, which are as under: “1. An incised wound of 14 x 2 cms. of muscle depth from lateral angle of right eye to mendibular area. Another incised wound of 7 x 2 cms. muscle depth ½ cm. lateral to the above injury. 2. An incised wound of 6 x ½ cm. muscle depth, in the same direction of above wound 2 cms. medial to the injury No.1. 3. A chapped wound of 19 x 8 cms. with bone depth, extending from lower lip left side, chin and mouth with loss of teeth of lower jaw with teeth present in oral cavity. 4. A chapped wound of 16 x 4 cms. bone depth muscles exposed, extending from left nostril to left ear. 5. A chapped wound encircling the front of neck 15 x 10 cms. muscles, trachea and vessels are cut, cervical vertebra injured, with 5 cms. depth in horizontal direction. 6. A stab injury of 4 x 2 cms. depth 7 cms. in vertical direction, slanting upwards, below the right collar bone in lateral aspect with corresponding holes on banian and shirt, blood stained. 7. A stab injury of4 x 2 cms. depth 4 cms. below the right collar bone in medial aspect in obliquely upwards direction, 4 cms. medial to injuryNo.6 with corresponding holes on shirt. 8. A stab injury of 3 x 1 cms. depth 2 cms. below the left collar bone in medial aspect in oblique direction with corresponding holes on shirt. 9. An incised injury of 4 x 1 cms. bone depth, in left parietal region in horizontal direction. 10. A chapped wound of 13 x 5 cms. depth 5 cms. on dorsum of the left hand extending from wrist to ring finger involving index and middle fingers with total cut of bones and metacorpals. 11. A chapped wound of 5 x 2 cms. depth 2 cms. on lateral aspect of left wrist. 12. An incised injury of 14. x ½ cms. 1 cms. depth on back left side of the chest in horizontal direction. 13. A deep incised injury of 7 x 2 cms. depth 4 cms. on medial aspect of right knee with bones cut in horizontal direction. Another deeply incised injury of 7 x 2 cms. depth 5 cms. with 3 cms. above right knee in horizontal direction with cut of bone.” On internal examination he found thorax and left collar bone is cut on medial aspect, right collar bone is cut on medial aspect. Fracture of left temporal bone of 4 cms. in the same direction of injury No.4. the internal injuries found on thorax and collar bones correspond to external injuries Nos.7 and 8 and the said injuries are possible with the weapons like M.Os.8 to 14. The external injuries found by him alone are mentioned in the report— Ex.P5. Injuries 1 to 4 are on the face, injury No.5 in on neck and injuries 6 to 8 are stab injuries on collar bones above upper part of the chest. He deposed in the cross-examination that stab injuries can be caused by double edged weapon like dagger. If a stab injury is caused with M.O.13, one edge of the injury will be clean cut and other side will be irregular. M.Os.8 to 14 are curved weapons and generally when a person is attacked with a curved weapon, at first a stab injury will be caused and then the incised injury will be caused. He added basing on the position of the person who is making injuries to the victim, the nature of injuries will be there. 26. From the narrative evidence, as referred to above, the prosecution case is that all the accused killed the deceased by hacking indiscriminately and during the said attack A1 hacked one Ayyavaraiah who was accompanying the deceased at that time. P.W.1 is the eye witness to the incident and who lodged the compliant with the police. In the first statement recorded by the police under Ex.P1, P.W.1 stated about the participation of all the accused. Nothing was elicited in the cross-examination to discredit his testimony about witnessing the incident. P.Ws.3 and 4 are also eyewitnesses to the incident. P.W.4 is the natural eyewitness, since she is running sundry shop and tea shop near to the place of occurrence. 27. Learned senior counsel was emphatic that in Ex.P1—complaint the presence of P.Ws.3, 4 and 5 has not been mentioned; therefore their witnessing the incident is doubtful. We do not see any force in the above contention for the reason FIR cannot be used to corroborate or contradict any witness other than the informant himself. It cannot be an encyclopedia to mention all minute details and the persons who witnessed the incident when the version of all the witnesses is consistent which is also corroborated with the medical evidence about the accused hacking the deceased when he was in a standing position. 28. It is contended that P.W.2 is a chance witness and close relative of the deceased; therefore his evidence has to be viewed with suspicion and he was an accused in murder case which itself is not sufficient to discredit his testimony when his evidence has been corroborated with the evidence of P.Ws.4 and 5. All the witnesses clearly stated that accused 1 to 7 surrounded the deceased and hacked him indiscriminately. P.W.4 stated that all the accused 1 to 7 are the persons who attacked the deceased and Ayyavaraiah, but in the cross examination she stated that she could not note their identity. She denied the suggestion that participation of seven persons is not correct and only three persons participated in the incident, since she is a rustic villager but appears to be a natural witness and not tutored to give evidence to suit the prosecution case. All the injuries mentioned by the doctor (P.W.10) and the way the same were received by the deceased appears to be that while he was in the standing position all the accused surrounded and hacked him. 29. Once the participation of all the accused in the commission of crime has been disclosed at the first instance itself without any loss of time and the same has been corroborated during the course of trial, the learned Sessions Judge was right in holding that all the accused participated in the commission of crime and accordingly convicted and sentenced them for the offence with the aid of Section 149 IPC, as aforementioned. 30. After going through the entire evidence, we are not persuaded to take a different view than taken by the learned Sessions Judge. 31. Criminal