THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE N.R.L.NAGESWARA RAO CRIMINAL APPEAL NO. 777 OF 2007 JUDGMENT: (Per NRLN,J) The accused in S.C. No.209 of 2006 on the file of III Additional Sessions Judge (FTC-II), Khammam, were convicted for the offences punishable under Sections 147, 148, 302 read with 149 IPC. The accused are the appellants herein. The case of the prosecution is that the deceased-Kotha Srinivas Rao @ Srinu Swamy is the husband of PW4 and brother of PWs. 1 and 3. He constructed a temple of Kalikamatha adjacent to his house situated at Indira Nagar and was performing puja everyday. About 10 years prior to the date of incident i.e., on 12- 07-2005, the daughter of A4 eloped with a tractor driver and A4 and A5 suspected the family of the deceased. There used to be frequent quarrels and subsequently one or two years later A1 was prosecuted for an offence of theft and the accused suspected the deceased family to be responsible for his arrest. Therefore, rivalry and misunderstandings between the families continued and on the date of incident at about 10-00 A.M when the deceased was coming from the temple and reached the house of the accused, where all of them lived together being family members of the accused, formed into an unlawful assembly with the common object of to do away with the life of the deceased and in furtherance of their common object, A1 attacked the deceased and hacked him on his neck with a sword, A2 and A3 attacked him with a knife on his jaw and left shoulder and A4 and A5 were guarding the scene of incident. PWs.1 to 4, who are in the neighbourhood, have witnessed the incident. The deceased died on the spot. On a complaint given by PW1, the police registered a case in Cr.No.90 of 2005 under Sections 147, 148, 302 read with 149 IPC and investigated into. During the course of investigation, the statements of the witnesses were recorded and panchanama of the scene was conducted and after the inquest was held over the dead body of the deceased, the body was sent to post-mortem examination. On 19-7-2005 A1 to A5 were apprehended and in the presence of mediators they have given confessional statements and in pursuance of the confessional statements of A1 to A3, weapons were seized and accused were sent for remand. The investigation, therefore, disclosed that the accused were guilty of the offences under Sections 147, 148, 302 read with 149 IPC. The case was taken on file as PRC No.52 of 2005 and committed to the Court of Sessions and made over to the III Additional Sessions Judge (FTC-II), Khammam. After appearance of the accused, charges under Sections 148, 302 read with 149 IPC were framed, read over and explained to them and they pleaded not guilty. On behalf of the prosecution, PWs 1 to 13 were examined and Exs.P1 to P18 were marked. Exs.D1 to D4 were marked in the cross-examination of PWs.2, 3, 4 and 6. M.Os.1 to 8 were also marked. After the evidence of the prosecution is over, the accused were examined under Section 313 Cr.P.C. and they have not adduced any evidence and maintained their plea of innocence. After considering the evidence on record, the learned III Additional Sessions Judge accepted the prosecution case and accordingly, convicted the accused. Aggrieved by the said judgment, the present appeal is filed. Heard the arguments of the learned senior counsel Sri C.Padmanabha Reddy appearing on behalf of the appellants and the learned Additional Public Prosecutor for the State. The points that arises for consideration are: (1) Whether the prosecution has proved that all the accused are members of an unlawful assembly and caused death of the deceased? (2) Whether there was participation of A4 and A5 with acceptable evidence on record? (3) Whether the conviction and sentence imposed by the leaned III Additional Sessions Judge is legal and sustainable? The case of the prosecution is based on a motive that when the daughter of A4 eloped with a tractor driver at about 10 years back, the accused suspected the hand of the family of the deceased in that incident. Thereafter, there seems to be a case of complaint of theft, where also the family of the deceased is said to have been involved. In support of this, the evidence of PWs 1 to 4 is reflecting about the mis-understandings and, of course, as rightly contended by the learned senior counsel for the appellants that there is no record to prove the same except oral assertion and other misunderstandings that crept between them. However, the failure to prove the motive cannot be a circumstance to extend any benefit of doubt when there is acceptable and direct evidence on record. In support of the prosecution case, PW1 deposed that the deceased-K.Srinivas is his elder brother and his house is at a distance of 50 yards from the house of the accused and also nearer to the house of the deceased. The deceased is said to have constructed a temple and on the date of incident at about 10- 00 AM after performing puja, when he reached near his house at the time all the accused who were residing in the same house came and A1 attacked the deceased with a sword on his neck, A2 and A3 attacked the deceased with knives and A2 hacked his brother with a knife on his jaw and A3 attacked the deceased on his left shoulder. A4 and A5 were guarding the place by standing on either side of the victim. When he proceeded to the place of incident, the accused ran away and according to him, the motive is that A4’s daughter eloped with their tractor driver and the deceased was suspected. Earlier also A1 was prosecuted for an offence of theft and the accused suspected the deceased. Ex.P1 is the report given by PW1. Lengthy prosecution was done to probabilize his presence and to show that at the time of incident, he was not there and he was on agricultural work and the attacks attributed to the individual accused are also disputed. PW2, who is sister of the deceased, also spoke about the incident. According to her, when the deceased went to the temple at 8-00 AM, she asked as to where he was going early and the deceased stated that he wanted to go to his fields and accordingly, after performing puja, the deceased started to go to his lemon garden from the temple and after hearing some cries at about 10- 00 A.M, she ran towards the scene and she found A1 to A3 attacking the deceased. She also spoke about A4 and A5 guarding the scene. PW3 is another brother of the deceased and he supported the prosecution case PW4, who is the wife of the deceased and according to her, when she was in front of her house, which is at a distance of 10 yards, from the incident, she saw the attack on the deceased, as deposed of PWs.1 to 3 and supported their version. PW5 spoke about taking photos of the scene of offence. PW6 did not support the prosecution case and was declared as hostile. The evidence of PW7 is that he conducted post-mortem examination on the dead body of the deceased and found injuries as in Ex.P9. PW9 did not support the prosecution case and was declared as hostile. PW10 deposed about the confessional statement given by the accused and production of MOS 1 to 3. The evidence of PWs.11 to 13 is about the investigation done by them in this case. As can be seen from the material on record, the accused lived in the same locality where the deceased and PWs.1 to 4 reside and the distance between their houses is not more than 200 to 300 yards from the scene. It is also to be noted that the incident happened in front of the house of A4. According to the case of the prosecution, the deceased was coming from the temple at about 10-00 AM after performing puja and at that time all the accused have attacked. PWs.1 to 4 are evidently residing in the neighbourhood and the offence has taken place during the day- time. Their evidence clearly goes to show that at the time when the deceased reached the scene, all the accused had attacked him and they heard the cries. In the cross-examination of PWs. 1 to 4 a suggestion has been made to show that they did not witness the incident. Leaned senior counsel strenuously contended that the evidence of PW1 as to his witnessing the incident and to be present at the time of incident is highly improbable because PW1 is stated to be a labourer and at about 10-00 A.M, when he has gone to labour work, he could not have returned for lunch at that time. Therefore, his version cannot be given much credence. But in the cross examination of PW1, he has clarified that he went at 8-30 AM and entrusted the work and came to the house at 10-00 AM to take lunch and if he comes for lunch, he will not go back again for work. Therefore, the explanation given by PW1 about his presence and coming to his own house does not in any way discredit his credibility. So also the evidence of PW2 clearly goes to show that she has got pan shop very near and close to the scene of offence, and she claims to have witnessed the attack on the deceased. PW3 is sister of the deceased and she was also present in the neighbourhood in her own house. PW4 is the wife of the deceased and she was also present in the house and the scene of offence is very few yards away from the house of the deceased. Therefore, the presence of these witnesses at the scene of offence and their closeness to the deceased at the time of incident cannot be doubted at all. Their evidence clearly goes to show that A1 hacked the deceased with a knife on his neck, which is a fatal injury found by the Medical Officer and opined to be the cause of death. Their evidence is also consistent with the fact that A2 and A3 have beat the deceased and caused injuries on other parts of the body which are evidently simple, as can be seen from the evidence of doctor PW7. The evidence of PWs.1 to 4 and also the First Information Report-Ex.P1 is consistent with the fact that A4 and A5 have not participated in the commission of the offence and they have not caused any injuries on the body of the deceased. The evidence of PWs.1 to 4 shows that by the time they have gone to the scene, as rightly contended by the learned counsel for the appellant, apart from these persons some other persons who were also present. Therefore, the mere presence of A4 and A5 at the scene of offence does not involve them with a common intention to do away with the life of the deceased or they being the members of the unlawful assembly, as rightly contended by the learned senior counsel for the appellants, that there is no finding of the leaned Sessions Judge to the effect that all the accused are members of an unlawful assembly with a common object of doing away with the deceased. Therefore, merely because A4 and A5 are related to A1 to A3 and they being in the same neighbourhood and in the same house, does not lead to an interference that they are all also parties to the crime. Therefore, we have no hesitation in holding that the complicity of A4 and A5 in the crime has not been established and they are entitled for a clear and reasonable benefit of doubt. So far as A2 and A3 are concerned, evidently the injuries said to have been caused by them are simple and they have not beat on the vital parts of the body and have not been the members of unlawful assembly and their common intention to do away with the life of the deceased also cannot be inferred, so as to attract the ingredients of Section 34 IPC. Therefore, since the medical evidence supports that the injuries caused by them are simple and their participation in the crime is conclusively proved by the evidence of PWs.1 to 4, we feel that their overt acts attract the offence under Sec.324 IPC only. So far as A1 is concerned, there is no doubt about the fact that he has caused fatal injury on the neck of the deceased, which in the normal course of circumstances is sufficient to cause death and the prosecution has adduced evidence to show that he has got an intention to kill the deceased. Therefore, the conviction of the accused for the offence under Section 302 IPC cannot be found fault and it cannot be disturbed. Therefore, for all the above reasons, we hold that the Court below rightly appreciated the evidence of PWs. 1 to 4 and has come to the conclusion that A1 is guilty of the offence under Section 302 IPC and the conviction, therefore, does not call for any interference. In the result, the conviction and sentence recorded against A4 and A5 for the offences under Sections 147 and 302 read with 149 IPC in S.C.No.209 of 2006 on the file of III Additional Sessions Judge ( FTC-II), Khammam, are set aside. A4 and A5 shall be set at liberty forthwith, if they are not required in any other cases. The fine amount paid, if any, shall be refunded to them. The conviction and sentence recorded against A2 and A3 for the offences under Sections 148 read with 302 IPC is also set aside, instead, we convict A2 and A3 for the offence under Section 324 IPC and sentence them to undergo RI for three years. The period of sentence already undergone by them shall be given set off. In so far as A1 is concerned, the conviction and sentence recorded against him by the learned Sessions Judge are confirmed. Accordingly, the criminal appeal is partly allowed. ______________ K.C.BHANU,J ___________________________ N.R.L.NAGESWARA RAO,J rkk Dated: 21-12-2010