THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.656 of 2007 Date: 09-9-2009 Between Vadde Chinna Venkataswamy (accused No.1) and 13 others … Appellants/accused 1 to 14 and 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 R.KANTHA RAO Criminal Appeal No.656 of 2007 Oral Judgment: (per D.S.R.Varma, J.) Heard Sri C.Padmanabha Reddy, learned Senior Counsel, representing Sri C.Praveen Kumar, learned Counsel appearing for the appellants-accused 1 to 14 and the learned Public Prosecutor appearing for the respondent-State. 2. This appeal is directed against the judgment, dated 26-4-2007, in Sessions Case No.646 of 1999, passed by the V Additional Sessions Judge (Fast Track Court), Nandyal, Kurnool district in convicting – accused 1 to 14 for the offence under Section 148 IPC and sentencing them to undergo rigorous imprisonment for a period of two years each; accused 1 to 4 for the offence under Section 302 IPC and sentencing them to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for six months each; accused 5 to 14 for the offence under Section 302 read with Section 149 IPC and sentencing them to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for six months each; accused 6 to 8 for the offence under Section 324 IPC and sentencing them to undergo rigorous imprisonment for a period of one year each; accused 9 to 11 for the offence under Section 324 IPC and sentencing them to undergo rigorous imprisonment for a period of one year each; accused 12 to 14 for the offence under Section 307 IPC and sentencing them to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for six months each; accused 1 to 11 for the offence under Section 307 read with Section 149 IPC and sentencing them to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for six months each; and accused 12 to 14 for the offence under Section 3 of Explosive Substances Act and sentencing them to undergo rigorous imprisonment for a period of five years each and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for six months each. 3. The case of prosecution, in brief, is that – (a) There was a faction between one S.Rama Krishna Reddy and I.V.Pakeera Reddy since one year prior to 02-11-1996 in Ramapuram village; that P.Ws.1 to 5 and one Thoka Pullaiah (hereinafter referred to as ‘the deceased’) belong to the said Pakeera Reddy’s group; that the accused belong to the group of Rama Krishna Reddy; that one Vadde Pedda Venkata Swamy, one of the followers of Rama Krishna Reddy was murdered by Pakeera Reddy and 3 others on 02-6-1996 at Ramapuram village vide Crime No.63 of 1996 of Owk Police Station. (b) That on 02-11-1996 at about 7 a.m., P.Ws.1 to 5 and the deceased went to the slab mines of P.W.1, which are at a distance of 2 kms., west of Ramapuram near Muneppa Konda; that after finishing their work at about 5 p.m., they were returning to sangapatnam from the mines; that at the slab mines of P.W.1, accused 1 to 14 had formed themselves into an unlawful assembly with a common object to murder P.Ws.1 to 3 and the deceased; that at that time, accused 1 to 4 were armed with hunting sickles, accused 6 to 11 were armed with natu sticks and accused 12 to 14 were armed with country-made bombs; that in prosecution of their common object, accused 1 to 4 dealt blows on the right hand, head and neck of the deceased with hunting sickles and caused injuries; that the deceased died instantaneously as a result of those injuries; that accused No.5 threatened P.Ws.1 to 5 with dire- consequences; that accused 6 to 8 beat P.W.2 with natu sticks and caused simple injuries; that accused 9 to 11 beat P.W.4 with sticks and caused injuries; that while P.Ws.1, 3 and 5 were running towards Ramapuram village, accused 12 to 14 followed them in an attempt to kill them and that accused 12 to 14 hurled bombs towards them, the bombs exploded and the disposed of bombs caused injuries to P.W.3. (c) That on the same day at about 9.30 p.m., P.W.1 and other injured persons went to Owk Police Station, P.W.1 gave a report under Ex.P-1 to P.W.11, who registered the same as a case in Crime No.106 of 1996 for the offences punishable under Sections 147, 148, 324, 307, 302 read with Section 149 IPC, Section 25 (1B) of Arms Act, Sections 3 and 5 of Explosive Substances Act and Section 3(i)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Attrocities) Act, 1989 (‘the Act, 1989’ for brevity) and issued First Information Report under Ex.P-7. (d) That after completing all the formalities and after receipt of RFSL reports, P.W.14 filed charge-sheet against the accused. 4. Charges under Sections -- 148 IPC against accused 1 to 14, 302 IPC against accused 1 to 4, 302 read with Section 149 IPC against accused 5 to 14, 324 IPC against accused 6 to 8, 324 IPC against accused 9 to 11, 307 IPC against accused 12 to 14 and 307 read with Section 149 IPC against accused 1 to 11, were framed, read-over and explained to the accused in Telugu for which, they pleaded not guilty and claimed to be tried. 5. In support of its case, the prosecution had examined P.Ws.1 to 14, out of which, P.Ws.1 to 5 were cited as eyewitnesses and got marked Exs.P-1 to P-17 and M.Os.1 to 9. On behalf of defence, none were examined nor was any document marked. 6. After appreciating the entire evidence on record, both oral and documentary, and after hearing both sides, the trial Court had found the accused guilty for the respective charges, convicted and sentenced them, as stated above. 7. Aggrieved by the said judgment of conviction and sentences, accused 1 to 14 have preferred the present appeal. 8. It is the contention of the learned Senior Counsel that the prosecution had failed in not supplying the copies of statements of P.Ws.1 to 5, and 6 and 7 recorded by P.Ws.11 and 13, respectively, under Section 161 Cr.P.C., to the learned Counsel for the accused before the trial Court, who conducted investigation prior to P.W.14, the then Sub Divisional Police Officer, Dhone, who investigated into the matter initially on the ground that an offence also was committed under the provisions of the Act, 1989, however, no charge has been framed under the said Act, inasmuch as no case could be made out. 9. It is the strenuous contention of the learned Senior Counsel that the statements of P.Ws.1 to 7 recorded by P.W.14 under Section 161 Cr.P.C., are, in fact, not relevant, inasmuch the investigation was taken up by him on account of the statutory requirement that a police officer not below the rank of Sub Divisional Police Officer can investigate into the matter in cases of an offence under the provisions of the Act, 1989. The said statements, according to the learned Senior Counsel, are not relevant for the simple reason that the charge under the provisions of the Act, 1989, was totally dropped at the threshold. Therefore, it is the contention that the copies of statements of P.Ws.1 to 7 recorded by the predecessors in office of P.W.14 under Sections 161 Cr.P.C., who investigated into the matter, are imperatively be supplied to the learned Counsel for the accused at the threshold i.e., at least at the time of filing of the charge-sheet, which is the earliest point of time. 10. It is further contended that had the said material been furnished, as required under law, the accused could have had the benefit of examining the veracity of the depositions made before the trial Court by way of pointing out certain contradictions and pointing out the same to the prosecution witnesses in an attempt to demolish the case of prosecution. 11. It is the further contention that there is any number of discrepancies in the evidence of the prosecution witnesses in respect of the injuries caused to the deceased and P.Ws.2 to 4. According to the learned Senior Counsel, these discrepancies could have been substantiated in favour of the accused and by not furnishing such valuable material viz., copies of statements of P.Ws.1 to 5, and 6 and 7 recorded by P.Ws.11 and 13, respectively, under Section 161 Cr.P.C., which is expected to be supplied to the learned Counsel for the accused before the trial Court, the accused were, in fact, handicapped and were deprived of their valuable right of defending their case in a more effective manner and that such lapse, which is grave in nature, would almost take away the value of the testimony of P.Ws.1 to 5 on record and no conviction can be recorded basing on such evidence, particularly in the absence of the material, which is to be supplied to the learned Counsel for the accused before the trial Court as a statutory obligation. 12. On the other hand, the learned Public Prosecutor contended that non-supply of the copies of statements of P.Ws.1 to 5, and 6 and 7 recorded by P.Ws.11 and 13, respectively, under Section 161 Cr.P.C., who investigated into the matter prior to P.W.14, shall not inure to the benefit of the accused in any manner, inasmuch as no prejudice was caused nor was likely to be caused to the accused. 13. It is his further contention that if really the accused were particular about pointing out the material contradictions from the statements recorded under Section 161 Cr.P.C., the accused ought to have asked for supply of the same and since no such request was made, the prosecution is not at all at an obligation to supply such material and further that the medical evidence on record supports the case of prosecution and therefore, there is no need to supply any such additional material and the evidence on record is sufficient to sustain the order passed by the trial Court. 14. In the light of the above contentions, the points that arise for consideration are – (1) Whether non-supply of the copies of statements of P.Ws.1 to 5, and 6 and 7 recorded by P.Ws.11 and 13, respectively, under Section 161 Cr.P.C., to the learned Counsel for the accused before the trial Court would and should inure to the benefit of the accused ? (2) Whether the trial Court had rightly appreciated the evidence on record ? 15. Points 1 and 2 :- In this regard, it is to be borne in mind that this is a case where a fatal assault was committed allegedly by the accused; mainly by accused 1 to 4 and by accused 5 to 14 with the aid of Section 149 IPC. It is not in dispute that both the parties belong to the same village, which was a faction ridden village. It is settled law that in cases of faction disputes, the evidence on record and the other facts and circumstances have to be carefully looked into for the reason that there is every possibility that innocent persons, who are not connected with the offence, are also very likely to be roped into the criminal cases. Therefore, it is a difficult task for the courts to segregate the truth from the falsehood and further, to segregate the amount of truth from the version of either side. 16. The basic objection that is raised by the learned Senior Counsel is that the essential material, which was supposed to be supplied to the learned Counsel for the accused before the trial Court, at least, at the time of filing of the charge-sheet, was not supplied and in such cases, it is to be presumed that the prosecution had suppressed the essential material, which is very likely to inure to the benefit of the accused and in such cases, the lapse on the part of the prosecution in not supplying the copies of statements of P.Ws.1 to 5, and 6 and 7 recorded by P.Ws.11 and 13, respectively, under Section 161 Cr.P.C., who recorded the said statements prior to recording of the statements of P.Ws.1 to 7 by P.W.14 under Section 161 Cr.P.C., were not supplied. 17. As already noticed, the statements of P.Ws.1 to 7 recorded by P.W.14 under Section 161 Cr.P.C., the then Sub Divisional Police Officer, Dhone, who was the Investigating Agency under the Act, 1989 alone were supplied to the learned Counsel for the accused before the trial Court. But, unfortunately, there was no charge under the provisions of the said Act. Therefore, we are of the view that the statements of P.Ws.1 to 7 recorded by P.W.14 under Section 161 Cr.P.C., were not at all relevant for the purpose of examining the case on hand. 18. Furthermore, it is to be seen that P.W.14 did not even depose that he had gone through the statements of P.Ws.1 to 5, and 6 and 7 recorded by P.Ws.11 and 13, respectively, under Section 161 Cr.P.C., and that the statements of P.Ws.1 to 7 recorded by him under Section 161 Cr.P.C., were the same as the statements made and recorded by P.Ws.11 and 13. 19. The above fact would only discloses that on two different occasions, the statements of P.Ws.1 to 7 were recorded under Section 161 Cr.P.C., and the material, which is of not worth alone, was supplied to the learned Counsel for the accused before the trial Court i.e., the statements of P.Ws.1 to 7 recorded by P.W.14 under Section 161 Cr.P.C., and the material, which is actually required to be supplied in order to substantiate the case of prosecution, was not supplied. Therefore, in our considered view, such non-supply of the essential material to the learned Counsel for the accused before the trial Court would and should be viewed seriously and cannot be treated as material, which can be eschewed from consideration. 20. As a matter of fact, this is a valuable material, which can, in a way, be utilized by the accused as a weapon by way of pointing out the contradictions in the depositions of the witnesses made in the trial Court. The supply of such valuable material is more relevant in the context where P.Ws.11 and 13 admittedly have recorded the statements of P.Ws.1 to 5, and 6 and 7, respectively, earlier. 21. Therefore, there is every possibility that there might be a contradiction in the statements made by P.Ws.1 to 7 and there may be a further contradiction of those statements, which statements made before the trial Court. Such pointed contradictions, if any, could be made out by the accused would undoubtedly be to the great benefit of the accused. 22. In this regard, we are fortified with the view taken by a Division Bench of this Court in Kota Peda Nagesh vs. State of A.P.[1], wherein it has been pointed out that the statements recorded under Section 161 Cr.P.C., could be used both by the prosecution as well as the accused, that if a witness deposes in the Court contrary to his statement made under Section 161 Cr.P.C., before the Police, the prosecution could then seek permission of the Court to declare such witness hostile and cross- examine such witness. It was further pointed out that the defence is always entitled to mark those contradictions and improvements and can use those contradictions or improvements in favour of the accused. 23. Their Lordships in Kota Peda Nagesh’s case (1 supra) had relied on a decision rendered in In re Gaddem Jayarami Reddi: [1959 (1) An.W.R. 197], wherein it was held that deliberate statements of witnesses made during investigation or wholesale refusal to furnish copies of such statements leads to the interference that prejudice was occasioned to the accused. Even otherwise, a slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused and in such a case, it is always open to the Court to presume that the statements withheld would become unfavourable to the prosecution if produced. 24. In the light of the above said views expressed by two Division Benches of this Court, we are of the view that though the conduct of the prosecution in the present case in not supplying the copies of statements of P.Ws.1 to 5, and 6 and 7 recorded by P.Ws.11 and 13, respectively, under Section 161 Cr.P.C., on the earlier occasion and supplying only the copies of statements of P.Ws.1 to 7 recorded by P.W.14 under Section 161 Cr.P.C., which are not relevant, to the learned Counsel for the accused before the trial Court would undoubtedly tant amounts to suppression of the substantial material presumably very likely to effect the case of prosecution and defeat the cause of the accused. 25. As a matter of fact, this issue had fallen for consideration as long back as in 1947 in KOTTAYA v. EMPEROR[2], wherein it was pointed out in unequivocal terms that the right to be furnished with copies of statements made by witnesses to a police officer given to an accused person by Section 162 of Criminal Procedure Code, 1898 is a very valuable one and often provides important material for cross-examination of the prosecution witnesses. However slender the material for cross-examination may seem to be, it is difficult to gauge its possible effect. Minor inconsistencies in his several statements may not embarrass a truthful witness, but may cause an untruthful witness to prevaricate. 26. From the above legal position, our view expressed above is further crystallized and concretized. 27. However, it is noteworthy that this point was raised by the learned Counsel for the accused before the trial Court and to that effect, a suo motu order had been passed on 19-8-2002. The said order was subjected to challenge before this Court by way of Crl.M.P.No.4279 of 2002 and by order, dated 31-10-2002, the said order passed by the trial Court was quashed by this Court, meaning thereby that the trial Court cannot cause production of such valuable material at a belated stage; that too, at the stage of arguments only in order to use the same against the accused. Such course of action, of course, at the cost of repetition, cannot be accepted and was rightly rejected by this Court. 28. The end result of rejection of the said order passed by the trial Court was that the trial Court had to examine the evidence on record and pass appropriate orders. 29. But, in the light of the views expressed by the Privy Council in KOTTAYA’s case (2 supra), the case of prosecution, in our considered view, would crumble to the ground on that count alone. We may go to the extent of terming the conduct of the prosecution as ‘an abuse of process of the Court’ and therefore, this issue is answered in favour of the appellants-accused and consequently, the reasoning assigned by the trial Court in this regard while recording conviction is liable to be set aside. 30. Coming to the aspect of appreciation of the evidence on record, it is to be seen further that cumulative effect of the evidence of P.Ws.1 to 5 is that -- accused 1 to 4 attacked the deceased with hunting sickles and caused injuries on the right hand. This is the allegation made as per the FIR Ex.P.1. But, during the course of evidence, the same witnesses had spoken to in different manner and they could not even attribute specific overt acts against the accused. 31. Furthermore, the evidence of the doctor (P.W.10) would only reveal that there were two lacerated injuries only on the occipital region of the deceased and out of the other three injuries, two were abrasions and one was cut injury on the hand. The description of the injuries by P.Ws.1 to 5, some of whom also allegedly received injuries, is totally unsatisfactory and not corroborating with the medical evidence on record. 32. Thus, in view of the total conflict between the oral testimony and the medical evidence on record, we agree with the contention of the learned Senior Counsel that the incident, as projected by the prosecution, did not actually take place and the alleged eyewitnesses did not actually witnessed the incident or that they might be giving altogether a false and different version. 33. As such, in our considered view, the inconsistency, which is the material, clearly reveals that the eyewitnesses have not revealed the correct version and therefore, their evidence is not dependable. Even assuming that there is some amount of consistency, it is to be remembered that such evidence is still under the shadow of serious doubt cropped up in the circumstances, where relevant material was not supplied to the accused and thereby causing great prejudice to them and therefore, in such circumstances appreciation of the evidence on record by the trial Court cannot be accepted. 34. Therefore, the trial Court did not appreciate the evidence on record in a proper perspective and wrongly placed reliance on the evidence of P.Ws.1 to 5 and recorded the conviction and sentence against the accused, which is assailed in this appeal. 35. For the foregoing, all the appellants are to be acquitted on all counts and the conviction and sentences recorded by the trial Court are to be set aside. 36. In the result, the criminal appeal is allowed and the impugned judgment of conviction and sentences, dated 26-4-2007, in Sessions Case No.646 of 1999, passed by the V Additional Sessions Judge, Kurnool at Nandyal, against all the appellants- accused 1 to 14 is set aside. The accused are to be set at liberty forthwith, if not required in any other case. The amount of fine, if any, paid by the accused shall be refunded to them. ____________________ JUSTICE D.S.R.VARMA ____________________ JUSTICE R.KANTHA RAO 09th September, 2009. Ak [1] 1999 (1) ALT (Crl.) 364 (D.B.) (A.P.) [2] A.I.R. (34) 1947 Privy Council 67