THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No. 632/2007 Dt. 12 -11-2010 1. Kamma Rangaiah @ Rupuneni Rangaiah .. Appellants/ A-2,A-4,A-7,A10 & A-10 V. The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., Hyderabad. ..Respondent/complainant The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No. 632/2007 JUDGMENT (per the Honourable Justice A.GOPAL REDDY) The appellants herein are A-2, A-4, A-7, A-10 and A-11 in SC No. 560/2002 on the file of III Additional Sessions Judge (FTC), Anantapur. Originally eleven (11) accused were charge sheeted for the offences punishable under Section 147, 148, 341,302,307 r/w 149 IPC and Sec. 25 (1-B) of Arms Act, 1959 in SC No. 560/2002. Case against A-1, A-3, A-8 and A-9 was split up from the main SC No.560/2002 and numbered as SC No.416/2006, and case against A- 5 and A-6 was split up from the main SC No.560/2002 and numbered as SC No.446/2006. Charges & additional charges framed against the appellants herein and other accused are as follows: 1. Section 148 IPC against A-1 to A-11 2. Section 341 IPC against A-1 to A-11 3. Section 302 IPC against A-1 to A-3 4. Section 302 r/w 149 IPC against A-4 to A11 5. Section 324 IPC against A-2 6. Section 324 r/w 149 IPC against A-1, A-3 to A-11 7. Section 324 IPC against A-4 8. Section 324 r/w 149 IPC against A-1 to A-3 ad A-5 to A-11 9. Section 5 of the Explosive Substances Act against A- 2 10. Section 3 of the Explosive Substances Act against A-2 11. Sections 3 and 5 r/w 6 of the Explosive Substances Act against A-1, A-3 to A-11. 12. Section 25(1-B) (b) of Arms Act against A-2, A- 4, A-7 along with A-1,A-5,A-6 13. Section 25(1-B) (b) Arms Act against A-10 and A- 11 along with A-3,A-8 and A-9 Learned Sessions Judge, who tried A-2, A-4, A-7, A-10 and A-11 for the offences for which they stood charged, found them guilty of the offences punishable under Section 148, 341, 324, 302 r/w 149 IPC and Section 3, 5 r/w 6 of the Explosive Substances Act and Section 25(1-B) (b) of the Arms Act and convicted accordingly and sentenced as follows: 1. A-2,A-4,A-7,A-10 and A-11 to suffer rigorous imprisonment for a period of three years each for the offence punishable under Sec. 148 IPC; 2. A-2,A-4,A-7,A-10 and A-11 to suffer simple imprisonment rigorous imprisonment for a period of one month each for the offence punishable under Sec. 341 IPC; 3. A-2 to suffer imprisonment for life and also to pay a fine of Rs.1000/- in default to suffer simple imprisonment for a period of six months for the offence punishable under Sec. 302 IPC; 4. A-4,A-7,A-10 and A-11 to suffer imprisonment for life and also to pay a fine of Rs.1000/- in default to suffer simple imprisonment for a period of six months each for the offence punishable under Sec. 302 r/w 149 IPC; 5. A-2 to suffer rigorous imprisonment for a period of one year for the offence punishable under Sec. 324 IPC; 6. A-4,A-7,A-10 and A-11 to suffer rigorous imprisonment for a period of one year each for the offence punishable under Sec. 324 r/w 149 IPC; 7. A-4 to suffer rigorous imprisonment for a period of one year for the offence punishable under Sec. 324 IPC; 8. A-2, A-7, A-10 and A-11 to suffer rigorous imprisonment for a period of one each for the offence punishable under Sec. 324 r/w 149 IPC; 9. A-2 to suffer rigorous imprisonment for a period of one year for the offence punishable under Sec. 3 of the Explosive Substances Act; 10. A-2 to suffer rigorous imprisonment for a period of one year for the offence punishable under Sec. 5 of the Explosive Substances Act; 11. A-4,A-7,A-10 and A-11 to suffer rigorous imprisonment for a period of one year each for the offence punishable under Sec. 3 and 5 r/w 6 of the Explosive Substances Act; 12. A-2, A-4, and A-7 to suffer rigorous imprisonment for a period of one year each for the offence punishable under Sec. 25(1-B) (b) of Arms Act; and 13. A-10 and A-11 to suffer rigorous imprisonment for a period of one year each for the offence punishable under Sec. 25(1-B) (b) of the Arms Act. All the sentences were directed to run concurrently. The substance of the charges framed against is that on 12-8- 2001 all the accused in furtherance of their common object formed themselves into an unlawful assembly being armed with deadly weapons and country made bombs caused the death of one Bala Sathis Babu (hereinafter referred to as “the deceased”) and during the same transaction, they caused injuries to P.Ws.2 and 3. The case of the prosecution, as unfolded during the trial, is that the accused and all the material witnesses are the residents of Yadiki village. The deceased was the supporter of Congress-I party and the accused were the supporters of Telugu Desam Party. A-2 to A- 11 are the followers of A-1 and P.Ws.1 to 5 are the followers of the deceased. There was a political rivalry between them for the election of Mandal Praja Parishad and Zilla Parishad Territorial Constituency. In both the elections, Congress Party succeeded in Yadiki Mandal. Subsequently, election to the post of Sarpanch of Gram Panchayat was scheduled in the said village in the month of August, 2001. In the said election, A-1’s mother and the brother of the deceased were contestants for the said post. A-1 thinking that the deceased would be a hurdle for success of his mother, wanted to get rid of the deceased. On 12-8-2001 at about 12 Noon, the deceased along with P.Ws.1 to 5 and few others started in a Sumo to Anantapur and reached there by 2 PM. After visiting Revenue Divisional Office, Collector Office and the house of Venkataramireddi, at about 5-30 PM they left Anantapur. After reaching Rotarypuram village, a Sumo without number came in a high speed and stopped across the road in front of their vehicle and stopped them. Then, A-1 to A-11 got down from the Sumo armed with hunting sickles saying “Kobali Kobali”. Then A-2 hurled a bomb, which exploded behind their Sumo. On that, P.Ws.1 to 5 got down from the vehicle and ran out of fear and the deceased was still in the vehicle. Then, A-3 caught hold of the shirt collar of P.W.1 when he tried to escape. A-2 hurled another bomb which exploded near P.W.2, as a result of which, he received splinter injuries on his right and left thigh and also on his right hand. A-4 hacked P.W.3 with an hunting sickle on his left thigh. Then, A-1 to A-4 went towards the sumo in which the deceased was sitting and then pulled him out of the vehicle and there was scuffle between them. Then, A-1 armed with hunting sickle hacked him on his head and neck. A-2 hacked him on his head and right shoulder. A-3 hacked him on his head and left palm and A-4 hacked him on his head and back. When he fell down, rest of the accused hacked him indiscriminately. Thereafter, all the accused left the scene saying “Kobali Kobali”. P.Ws.1,2 and 4 stood there at the scene till the arrival of the police and P.Ws.3 and 5 went to Tadipatri. At about 6-15 PM on coming to know about rumour about the murder of the deceased, P.W.14, the then Sub-Inspector of Police, Bukkarayasamudram Police Station rushed to the scene by 6-30 PM and found the dead body of the deceased and also found P.Ws.1 and 2 with injuries near the dead body. He enquired them about the incident in question. P.W.1 orally informed him about the incident. After recording the statement of P.W.1 covered under Ex.P-1, he sent the same to the Police Station. On receiving Ex.P-1, P.W.12, the then Head Constable registered the same as a case in Cr.No.105/2001 for the offences under Section 302 r/w 34, 342 and Sections 3 and 5 of Explosive Substances Act and issued First Information Report covered under Ex.P-10. Further investigation was taken over by P.W.15, the then Inspector of Police prepared an observation report and rough sketch of the scene covered under Ex.P-12. He held inquest over the dead body in the presence of P.W.6. Ex.P-4 is the inquest report. During the course of his investigation, P.W.15 examined and recorded the statements of P.Ws.2,4 and others. He sent P.W.2 injured to the Government Hospital and also sent the dead body for postmortem examination. P.W.11-the then Civil Assistant Surgeon, Government General Hospital, Anantapur examined P.W.2 and issued would certificate covered under Ex.P-9. On 13-8-2001 on receiving requisition, P.W.9-Assistant Professor of Medicine, Government General Hospital, Anantapur held autopsy over the dead body of the deceased and opined that the cause of death was due to hemorrhage and shock due to multiple injuries and issued postmortem report covered under Ex.P-7. On 13-8-2001 an on 14-8-2001 P.Ws.5 and 3 appeared before P.W.15 respectively saying that they travelled along with the deceased on the date of the incident. He examined and recorded their statements and sent P.W.3 to Government Hospital for examination. On 14-8-2001 P.W.10–Civil Assistant Surgeon, Government Hospital, Tadipatri, examined P.W.3 and issued wound certificate covered under Ex.P-8. Basing on the statements made by P.Ws.3 and 5 and two others (not examined), A-5 to A-11 were added along with A-1 to A-4. On 22-8-2001 on information, P.W.15 arrested A-1,A-2,A-4 to A-7 and seized four blood stained hunting sickles from the vehicle covered under M.Os.2 to 5 and seized blood stained shirt covered under M.O.16. He noticed bloodstained rexine on the top of the seat of the vehicle. He cut the relevant part of the rexine and seized the same covered under M.O.17 under a cover of panchanama covered under Ex.P-4 in the presence of P.W.7. He also seized sumo vehicle covered under M.O.1 under a cover of panchanama Ex.P-4. On 9-9-2001, he arrested A-3, A-8 to A-11 and seized bloodstained hunting sickles covered under M.Os.6 to 8 from the persons of A-3,A-8 and A-9, which they concealed in their waist in the presence ofP.W.8 under a cover of panchanama-Ex.P-6. He sent all the material objects to Forensic Science Laboratory. On receiving sanction order covered under Ex.P- 11 and also relevant reports and on completion of investigation, P.W.15 filed the charge sheet before the Addl. Judicial First Class Magistrate, Anantapur. Learned Magistrate took the charge-sheet on file as PRC No.149/2001 and committed the case to the Court of Sessions Division of Anantapur District as the offence, Sec. 302 IPC, is exclusively triable by Court of Sessions. The learned Sessions Judge took the case on file as SC No.560/2002 and made over to the III Additional Sessions Judge (FTC), Anantapur for disposal according to law. The learned Sessions Judge on hearing the prosecution and the accused, framed charges, as aforementioned, against the appellants/accused, read over and explained the same to the accused in Telugu, for which the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offences for which they stood charged, the prosecution examined 15 witnesses and proved 22 documents and exhibited 17 material objects. After closure of prosecution side evidence, the accused were examined under Sec. 313 Cr.P.C., and they denied the incriminating material appearing against them in the evidence of prosecution witnesses. On behalf of the defence, one witness was examined and Exs.D-1 to D-9 were marked. The learned Sessions Judge after carefully scanning the evidence adduced by the prosecution found the accused guilty of the offences with which they stood charged and convicted accordingly and sentenced them as aforementioned. Challenging the conviction and sentences, A-2, A-4, A-7, A10 and A-11 preferred the present appeal. Sri C. Padmanabha Reddy, learned Senior Counsel appearing for the appellants contended that in Ex.P-1, statement of P.W.1, on which basis crime is registered at 7-45 PM, specific overt acts have been attributed only against A-1 to A-3 and the rest of the names have not been mentioned except stating “ all the persons”. He further contends that Ex.P-1 is not originally given but subsequently it was prepared either during the course of inquest or after the inquest and it was reached by the Magistrate at 1-45 PM. The crime was registered for the offences under Sec. 302 r/w 34 IPC and Sections 3 and 5 of Explosive Substances Act, wherein it was stated that P.W.3 was abducted after attack on the deceased. P.W.15-investigating officer admitted that no traces of explosion found at the place of the incident as stated by P.Ws.1 to 5, whereas it was stated by the prosecution witnesses that A-2 hurled two bombs and P.W.2 received splinter injuries. Based on the evidence of P.Ws.1 to 5 and two others, who are out and out partisan witnesses and are the followers of the deceased, A-4 to A-11 have been implicated falsely. Therefore, the evidence of P.Ws.1 to 5 requires a close scrutiny and in such case overt act test has to be applied while examining the evidence of witnesses. If such overt acts are mentioned consistently right from the stage of First Information Report and corroborated with medical evidence and other evidence then only accused can be held guilty. As P.Ws.1, 2 and 4 filed notarized affidavits stating that they were forcibly induced to make statements by the prosecution, they are not reliable witnesses. On the other hand, learned Public Prosecutor while supporting the judgment under appeal contended that First Information Report cannot be an encyclopedia, during the course of investigation, if it is revealed participation of other accused, they can be arrayed as accused. In view of the submissions, as referred to above, the point that arises for consideration is: “Whether the conviction and sentences recorded by the trial court against the appellants/accused, for the offences with which they stood charged, are sustainable and the prosecution proved its case beyond all reasonable doubt against them.” It is also fairly well settled that first information report 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. 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 HAHARASHTRA=(2009) 10 SCC 773 and ALLAUDDIN MIAN SHARIF MIAN V. STATE OF BIHAR=1989 CRL.L.J. 1466= (1989) 3 SCC 5). I n PANDURANG CHANDRAKANT MHATRE[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 (1989 (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. In view of the aforementioned legal propositions enunciated by the Supreme Court we shall now briefly set out the evidence adduced by the prosecution in support of its case. P.W.1, on whose statement covered under Ex.P-1 crime was registered, stated in Ex.P-1 that himself, the deceased, express report of Andhra Jyothi by name Chandra Sekhar, his brother-in-law Chakali Erranna-PW.2, Doddi Raju (no examined) and some others, total 12 in number, were proceeding in Tata Sumo driven by Krishna Reddy-P.W.4 and when they were going towards Tadipatri side after crossing Rotarypuram village at 6 PM, a lorry was going in front of their vehicle and their vehicle is going behind the lorry. Then one white Tata sumo came and stopped across their vehicle. Immediately from the Tata Sumo, Chandra Sekhar Babu-A-1, Rangaiah-A-2 and Kambagiri Swamy and some others got down from the vehicle arming with hunting sickles and were coming towards their vehicle. Then A-2 took one bomb from his hand bag and hurled at them, which fell and exploded with high sound on the back of the Sumo. They got down from the Sumo and running on fear. A-3 stopped him and caught hold of his shirt. Kamma Rangaiah-A-2 hurled another bomb towards the people who are running, which fell on road and exploded. Due to that, his brother-in-law-P.W.2 sustained bleeding injury. Meanwhile, A-1, A-2 and A-3 and some others dragged the deceased from the vehicle and surrounded him. A-1 hacked the deceased with hunting sickle on his head and neck. A-2 hacked the deceased with hunting sickle on his head and right shoulder. A-3 hacked the deceased with hunting sickle on his head and left palm and the rest of the persons hacked the deceased indiscriminately with their hunting sickles. While giving evidence before the court, P.W.1 stated that he has seen A-4 to A-11 along with A-1 to A-3 on the date of incident, but he does not know the full particulars of A-4 to A-11, who are all the residents of Yadiki village. A-2 to A-11 are the followers of A-1. On 12- 8-2001, himself, the deceased, P.W.3, P.W.2, P.W.5, driver-P.W.4 and others, total 12 in number, started in Tata Sumo from Yadiki village at 12 Noon to go to Anantapur. After reaching Anantapur at 2 PM, they took their meals and went to the office of Revenue Divisional Officer. The deceased and Chandra Sekhar went inside the office of the Revenue Divisional Officer and returned back. Thereafter, they went to the house of District Congress Committee President, Anantha Venkatrami Reddi, where the deceased had discussion with him. Thereafter, they went to the Collector’s Office, where the deceased and Chandra Sekhar had a discussion with the Collector. While returning, they again went to the house of Anantha Venkataramireddy and as he was not available, they left Anantapur at 5-30 PM. After reaching Rotarypuram and after proceeding for about 1 KM, a lorry was going in front of their vehicleland their vehicle was going behind the lorry. Then, a sumo came behind their vehicle without any number overtaking with high sopped and stopped across the road. P.W.4, who drove the vehicle, stopped the vehicle. Then, A-1 to A3 along with A-4 to A-11 got down from the Sumo armed with hunting sickles saying “Kobali” Kobali”. Then A-2 took a bomb from his hand back and hurled on their vehicle, which fell on the rear side of the vehicle. Then they opened the doors and went towards back side of the vehicle. A-3 caught hold of his shirt. When he tried to escape, A-2 hurled another bomb on them, which fell on the road and exploded. P.W.2 received splinter injuries on his right thigh. They ran for about 50 to 60 feet and stood up. Then, A-1 to A-3 forcibly pulled down the deceased from the vehicle. There was a scuffle between them. A-1 with his hunting sickle hacked the deceased on his head and neck. A-2 hacked the deceased with hunting sickle on his head and right shoulder. A-3 hacked the deceased on his head and left palm with hunting sickle. A- 4 to A-11 who are also having hunting sickles hacked indiscriminately on the body of the deceased and left towards Tadipatri. They went to the dead body and found the deceased with bleeding injuries. For about half an hour, they are helpless and without any idea remained there. When Ex.P-2-notarised affidavit was shown to him, P.W.1 categorically admitted that he does not know the contents of Ex.P-2 and his signature was obtained forcibly by A-1 to A-4. In the cross- examination, P.W.1 admitted that he is an accused in gang rape of Bhagyalakshmi. The allegation against him in the said case is, himself and four others trespassed into the house of Bhagyalakshmi and committed rape on her. He stated that jeep bearing registration No.KA04-N-2787 does not belong to the deceased but it was a hired vehicle. He knows the names, fathers’ names and family matters of A- 1 to A-3. He also knows the father’s name of A-3 who is Nagabhushanam. A-3 is having two brothers and he knows their names and they too were added as A-4 and A-8. He categorically admitted that he has not mentioned the names of A-4 and A-8 either in Ex.P-1 or in his 161 Cr.P.C., statement recorded by the police during the course of inquest. He knows A-1’s father, who had one son-in-law. He knows even on the date of offence A-5, A-6, A-7, A-10 and A-11 are related to A-1 and they are all residents of Kammagiri of Yadiki Mandal. He has not stated the identification particulars of A-4 to A-11 either in Ex.P-1 or before the police during the course of investigation. By the time, he went to the dead body, he found P.W.2, Doddi Raju (not examined), Chandra Sekhar and Krishna Reddy-P.W.4 at the scene of offence. He admitted that while recording Ex.P-1, he narrated to the police that the assailants of Satheesh Babu abducted P.W.3- Ramakrsihna Reddi. He has not observed whether Bala Subramanyam-L.W.6, Tati Varaprasad-P.W.5, M. Boya Kambagiri- L.W.8 came to the dead body. A-1 and A-3 were armed with hunting sickles in their right hands, whereas A-2 was holding a bag in his left hand and the hunting sickle in his right hand. The explosion mark was at a distance of 10 feet to the east of the dead body of the deceased. A-1 to A-3 dragged the deceased by catching hold of his hands from Sumo vehicle. A-4 to A-11 also came there armed with hunting sickles. In spite of fact that A-1 to A-11 are hacking the deceased from the time he was dragged out from the sumo, he was escaping himself and went behind the sumo. After falling down the deceased at the place, A-1 for the first time hacked him with sickle and A-2 and A-3, standing on either side, dealt two blows each thereafter. A-9 is the brother-in-law of A-3. He knows A-2, A-5, A-6, A-7, A-10 and A-11 are relations and residing abutting the house of A-1. P.W.2 deposed that P.W.1 is his brother-in-law and is a native of Nittur village. On the date of incident, himself and P.W.1 went to Yadiki village to meet the deceased. He accompanied the deceased in the vehicle along with P.W.1, Doddi Raju, Chandra Sekhar, Subrahmanyam, Varaprasad, Kambagiri, K. Ramakrishna Reddy and driver Krishna Reddy and two others. When the driver of their vehicle stopped the vehicle by applying sudden brake, A-1 to A-4 along with A-5 to A-11 got down from Sumo with hunting sickles in their hands saying “kobali” “Kobali”. He ran towards west of the Sumo after A-2 hurling a bomb. After explosion of bomb hurled by A-2, A-2 hurled another bomb, which fell on the road and exploded. Due to explosion, he received splinter injuries on his right and left thighs and also on his right hand. Then, he turned and saw towards Sumo. He found A-1 to A-3 forcibly pulled down the deceased from inside the Sumo and they brought him to the back side of the Sumo. A-1 with hunting sickle hacked him on his head and neck. A-2 hacked him on his head and right shoulder with hunting sickle. So also, A-3 hacked the deceased with hunting sickle on his head and left palm.