HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE V.SURI APPA RAO Criminal Appeal No.726 of 2007 Date: 25-02-2011 Between Jatoth Buchya and 13 others … Appellants/Accused 1 to 14 and The State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad … Respondent HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE V.SURI APPA RAO Criminal Appeal No.726 of 2007 Judgment: (per V.Suri Appa Rao, J.) This appeal is filed under Section 374 (2) of Cr.P.C., against the judgment of conviction dated 15-6-2007 in Sessions Case No.366 of 2006 on the file of to the VI Additional Sessions Judge (III Fast Track Court), Warangal at Mahabubabad, whereby the accused were convicted under Section 235 (2) of Cr.P.C., for the offences under Sections 148 and 302 read with Section 149 of IPC and sentenced to undergo three years’ rigorous imprisonment each and also to pay a fine of Rs.200/- each, in default to undergo simple imprisonment for one month each for the offence under Section 148 of IPC and the accused were further sentenced to undergo ‘imprisonment for life’ and to pay a fine of Rs.500/- each, in default to undergo simple imprisonment for two months each for the offence under Section 302 read with Section 149 of IPC. Both the sentences were ordered to run concurrently. Aggrieved by the said judgment of conviction and sentences passed against them, the appellants filed this appeal. 2. The case of prosecution, in brief, is as follows: There are land and family disputes between the accused and Jatoth Ramdhan (deceased No.1) and Jatoth Srinu (deceased No.2), son of deceased No.1. P.Ws.6 and 7 are brothers of deceased No.1, P.W.1 is the wife of deceased No.1, P.W.2 is the daughter of deceased No.1 and P.W.3 is the wife of deceased No.2. Deceased No.1 borrowed some amount for payment of LIC premium from accused No.8. Subsequently, there was a quarrel between them with regard to non-payment of the said amount. In the said quarrel, the father of accused No.4 received injuries. On that, the accused lodged a complaint against the deceased 1 and 2 and others. Thereafter, the deceased 1 and 2 and others surrendered before the Court and they were released on bail. After they were released on bail, due to fear of the accused, the deceased 1 and 2 and their family members left the village and took shelter in Pedda Nagaram at the house of the sister of deceased No.1. After one month they again returned back to the village and started their agricultural works. While so, on 05-3-2005 at about 4.30 p.m., when P.W.1 and her husband deceased No.1 were returning to their house after attending the silt work in their agricultural fields and by the time they reached in front of the house of accused No.6, all the accused attacked deceased No.1 with axes and knives and caused injuries. While P.W.1 raised hue and cry, P.Ws.2 to 4 came there and when she intervened to rescue her husband, they beat her and pushed her aside. All the accusd inflicted axe injuries and dragged the dead body by holding the legs towards her agricultural land and thrown the dead body near the house of one Jatoth Vagya. Thereafter, the accused hit on the head of her husband with a boulder. After killing her husband the accused ran towards their thota-bhavi where her another son deceased No.2 was there and attacked her son Srinu and killed him. The said incident was also witnessed by P.W.5, who is the Farm Servant of deceased 1 and 2. On seeing the same, P.W.1 wife of deceased No.1 lodged a complaint with the Police and the same was registered as Crime No.28 of 2005 under Sections 148 and 302 read with Section 149 of IPC. The Inspector of Police P.W.16 immediately rushed to the scene of offence and held inquest over the dead body of the deceased 1 and 2 under the scene of offence panchanama. Thereafter, the dead bodies were referred to the Government Hospital for post- mortem examination. He also seized the material objects available near the scene of offence. Later, he arrested the accused and basing on their confessional statements, he seized the weapons axes and sticks used by the accused for the commission of the offence. 3. The learned Additional Sessions Judge framed charges under Sections 148 and 302 read with Section 149 of IPC against all the accused. The accused pleaded not guilty. 4. In order to bring home the guilt of the accused for the above charges, the prosecution examined P.Ws.1 to 17 and marked Exs.P-1 to P-15 and M.Os.1 to 24. The defence got marked Exs.D-1 and D-2 portions of Section 161 Cr.P.C statements of P.Ws.1 and 2 and further examined D.W.1 and marked Ex.D-3. 5. After hearing both the counsel and on the basis of the evidence adduced by the prosecution, the learned Sessions Judge found the accused guilty for the offences under Sections 148 and 302 read with Section 149 of IPC and passed the above order of conviction and sentences. 6. Learned counsel for the appellants submitted that the witnesses examined by the prosecution are highly interested witnesses and their evidence is not consistent and corroborative and their presence is also doubtful. It is further submitted that the evidence of P.Ws.1 to 4 is not supported by the medical evidence as there are knife injuries on the deceased 1 and 2. It is further submitted that no specific overt acts are attributed against any of the accused. The evidence of the prosecution witnesses shows that the accused used axes and knives and there is no reference of beating with sticks and there are no stick injuries. It is also submitted that P.W.5, who is the only witness for the attack on deceased No.2, turned hostile to the prosecution. It is also contended that in the evidence P.W.1 has stated that she was also attacked by the accused when she intervened when the accused beating deceased No.1. But, the prosecution failed to prove the injury on P.W.1 and no wound certificate is filed and the Medical Officer also was not examined to prove the injuries on P.W.1. 7. In support of his contention, learned counsel for the appellants relied on the judgment of the Hon’ble Supreme Court in MALLAPPA v. STATE OF KARNATAKA[1], wherein it is held that the version given in FIR assumes importance for scrutinizing later deposition in which other witnesses come forward with more details. On facts, the presence of informants at the scene of occurrence was not in doubt. His evidence can be accepted in respect of those accused to whom overt acts have been attributed in the FIR. 8. Learned counsel for the appellants further relied on the judgment of the Hon’ble Supreme Court in PANDURANG CHANDRAKANT MHATRE v. STATE OF MAHARASHTRA[2]. In the above case, accused 2 to 6 and 10 to 12 armed with deadly weapons proved to have assaulted PWs causing grievous injuries. When PWs and deceased had run helter-skelter, at least five members chased the deceased and committed murderous assault on him resulting in his death. The Supreme Court held design of these members may not have been shared by other members of unlawful assembly. Hence, applying the rule of caution found accused 2, 3 and 12 only guilty for the offence under Section 302 read with Section 149 of IPC whose presence as members of the party of assailants was consistently mentioned and their overt acts in chasing and assaulting the deceased clearly proved and acquitted the other accused on the ground of benefit of doubt. 9. Learned Public Prosecutor argued that due to fear of the accused, the deceased 1 and 2 and others, who were released on bail, took shelter in another village. Immediately after their return to the village, the accused attacked the deceased 1 and 2 with deadly weapons, who are the male members of the family and killed them. It is further submitted that merely because P.Ws.1 to 4 are the interested witnesses their evidence cannot be thrown out and their evidence can be evaluated with great care and caution. 10. In support of his contention, learned Public Prosecutor relied on a judgment of the Hon’ble Supreme Court in STATE OF U.P. v. BALLABH DAS[3], wherein it is held that the evidence of interested witnesses is not like that of an approver which is presumed to be tainted and requires corroboration but is as good as any other evidence. In the absence of any independent witness, it is an absolutely wrong and perverse approach to throw out the testimony of interested witnesses. In a faction-ridden village, as in the present case, it will be impossible to find independent persons to come forward and give evidence and in a large number of such cases only partisan witnesses would be natural and probable witnesses. What the law requires is that where the witnesses are interested, the court should approach their evidence with care and caution in order to exclude the possibility of false implication. Once it is found by the court, on an analysis of the evidence of an interested witness that there is no reason to disbelieve him then the mere fact that the witness is interested cannot persuade the court to reject the prosecution case on that ground alone. 11. On the above proposition, the learned Public Prosecutor placed reliance on another judgment of the Hon’ble Supreme Court in BALDEV SINGH v. STATE OF PUNJAB[4]. In the above case, the FIR was lodged by the wife of the deceased soon after the occurrence when she was in a disturbed state of mind. The Supreme Court held that the FIR is not a substantive piece of evidence, it is only relevant in judging the veracity of prosecution case and the value to be attached to it depends on the facts of each case. Only the essential or broad picture need be stated in the FIR and all minute details need not be mentioned therein. It is not a verbatim summary of the prosecution case. It need not contain details of the occurrence as if it were an “encyclopaedia” of the occurrence. It may not be even necessary to catalogue the overt acts therein. Non-mentioning of some facts or vague reference to some others are not fatal. 12. Relying on the above 2 decisions, the learned Public Prosecutor contended that there is no discrepancy between the FIR and the evidence of the prosecution witnesses. The trial Court rightly believed the evidence of the prosecution witnesses and convicted all the accused and therefore, there are no valid grounds to interfere with the conviction passed by the learned trial Court. 13. In order to prove the cause of death of the deceased 1 and 2 (Jatoth Ramdhan and Jatoth Srinu) is homicidal, the prosecution examined P.W.11 Donikena Venkataiah and P.W.12 Jatoth Srihari, who acted as panch witnesses during inquest over the dead bodies of the deceased 1 and 2; P.W.16 C.Raji Reddy, Inspector of Police, who conducted inquest over the dead bodies of the deceased 1 and 2; and P.W.17 Dr. K.Vaidehi, Civil Assistant Surgeon, who held autopsy over the dead bodies of the deceased 1 and 2. 14. P.W.11 Donikena Venkataiah has stated in his evidence that about one year and 8 or 9 months back he went to Dubba Thanda to see the dead bodies of the deceased 1 and 2 (Jatoth Ramdhan and Jatoth Srinu) on coming to know that they were murdered and when he was near the dead bodies, the Inspector of Police called him and one Srihari and in their presence, the Inspector of Police conducted inquest over the dead bodies of the deceased 1 and 2. Himself, the Inspector of Police and other mediators found injuries over the dead bodies of the deceased 1 and 2 and the injuries were noted in the inquest panchanama by the Inspector of Police and they came to the conclusion that both the deceased 1 and 2 died due to the injuries. He further stated that Exs.P-4 and P-5 are the inquest panchanamas attested by him. 15. P.W.12 Jatoth Srihari has stated in his evidence that about one year and 9 months back he went to see the dead bodies of the deceased 1 and 2 (Jatoth Ramdhan and Jatoth Srinu). The Police called him and P.W.11 to act as panch witnesses to the inquest over the dead bodies. Exs.P-4 and P-5 are the inquest panchanamas relating to the deceased 1 and 2, respectively, attested by him. 16. P.W.16 C.Raji Reddy, Inspector of Police has stated in his evidence that on 05-3-2005 he received information about the double murder case. Immediately he proceeded to the scene of offence. P.W.1 submitted Ex.P-1 report. He endorsed the same and sent to the Station House Officer, Narsimhulapet Police Station to register a case under Sections 148 and 302 read with Section 149 of IPC. Accordingly, a case in Crime No.28 of 2005 was registered against the accused. He stated that he recorded the statements of the witnesses. On the next day morning he secured the presence of P.Ws.11 and 12 and before them he examined P.Ws.1 to 4, 6 and 7 and recorded their statements. He conducted inquest over the dead bodies of the deceased 1 and 2 (Jatoth Ramdhan and Jatoth Srinu) in the presence of P.Ws.11 and 12 who opined that the cause of death of the deceased 1 and 2 is due to the injuries noticed on the respective bodies. 17. P.W.17 Dr. K.Vaidehi, Civil Assistant Surgeon, Area Hospital, Mahabubabad has stated in her evidence that on 06-3-2005 she received a requisition from the Inspector of Police, Thorrur to conduct post-mortem examination over the dead bodies of the deceased 1 and 2 (Jatoth Ramdhan and Jatoth Srinu). She, therefore, conducted autopsy over the dead body of deceased No.1 and found the following injuries: (1) Irregular fracture and loss of right temporal bone with spillage of brain material, (2) Laceration wound occipital area 2½” x ½” x scalp depth, (3) Facial disfigurement with multiple of fractures of facial bone as a result of crush injury, (4) Crush injury left side of mouth and loss of tooth left lateral incisor and canines, (5) Fracture left mandible, (6) Multiple abrasion on left side of chest wall and 3” x 4” abrasion on left loin, (7) Multiple incised wound: a) 1” x ½” x ½” below right eye, b) Left lower jaw 2” x 1” x 1”, c) Right jaw 2” x ½” x 1”, d) On neck 4” x 3” x ½” cutting all major vessels, e) Left arm and forearm 3 incised wounds 2” x 1” x ½”, 2½” x ½”, 1½” x 1” x ½” left knee 2” x 1” x ½”, f) 1½” below left ear. All the above injuries are ante mortem in nature. The cause of death of deceased No.1 is due to shock due to haemorrhage, as a result of head injury and multiple injuries. Ex.P-14 is the post-mortem report issued by her. She further opined that the injuries 1 to 5 mentioned in Ex.P-14 post-mortem certificate could be possible by a blunt object such as stone and the other incised injuries mentioned in Ex.P-14 could be possible by a heavy sharp weapon like axe. 18. P.W.17 Dr. K.Vaidehi further deposed that after completion of the post-mortem examination over the dead body of deceased No.1, she conducted autopsy over the dead body of deceased No.2 (Jatoth Srinu) and found the following injuries: (1) Incised wound 2” x ¼” x 1” left occipital area with fracture skull bone, ante mortem in nature, (2) Incised wound ½” x ¼” x cut through left ear lobe shar injury, ante mortem in nature, (3) Incised wound 3” below axilla measuring about 3” x 2” x 1” which resulted in laceration of lower lobe of left lung resulted in left haemothorax, (4) Incised wound left side of neck 2” x 1” x ½” resulted in mutting through major blood vessels, (5) Incised wound 1” above sternal angle 1½” x 1” x ½”, (6) Incised wound back of the neck 1” above nape of neck 1” x ½” x ½”, (7) Incised wound 2” x 1” x 1½” at the right side of the neck, (8) 1½” x ½” x 1” incised wound at the back of chest wall, (9) Contusion 5” x 1½” left mid axillary line, (10) Contusion left side chest wall 2” x 1”. The above injuries are ante mortem in nature. The cause of death of deceased No.2 was due to shock and haemorrhage, as a result of multiple injuries. Ex.P-15 is the post-mortem certificate issued by her. Injuries 1 to 8 mentioned in Ex.P-15 are possible by a heavy sharp weapon like axe and injuries 9 and 10 could be possible by a blunt weapon. 19. Thus, by the evidence of P.Ws.11, 12, 16 and 17, the prosecution could able to prove that the deceased 1 and 2 (Jatoth Ramdhan and Jatoth Srinu) met with homicidal death. 20. The learned Additional Sessions Judge, Warangal at Mahabubabad at para 52 of the judgment held that all the accused have formed into unlawful assembly to prosecute their common object to do away with the lives of the deceased 1 and 2 armed with axes and sticks and caused the death of both the deceased. Therefore, he found all the accused guilty for the offences under Sections 148 and 302 read with Section 149 of IPC. 21. The next point for consideration is – whether all the accused are liable for punishment under Sections 148 and 302 read with Section 149 of IPC for causing the death of the deceased 1 and 2 (Jatoth Ramdhan and Jatoth Srinu) ? 22. So far as the attack on deceased No.1 Jatoth Ramdhan is concerned, the prosecution relied on the evidence of P.Ws.1 to 4. P.W.1 Jatoth Kanukamma, who is the wife of deceased No.1, has stated in her evidence that about 1½ years back herself, her husband Ramdhan, her son Srinu and P.Ws.3 and 5 went to their agricultural fields to remove the silt from the Well. At about 4 O’ clock in the evening they removed the silt. Thereafter, deceased No.2 Jatoth Srinu and P.W.5 went to the cattle shed. Herself and her daughter-in-law P.W.3 proceeding to their house and her husband Ramdhan was also returning to the house. When they passed the house of one Waghya, accused 1, 3 and 8 were running towards them with sticks in their hands. She raised hue and cry saying as to why they are running and to kill whom they are running. At the same time, accused 7, 2 and 9 also came from the lane of a street in the opposite direction. Accused 5 and 4 were found in front of the house of accused No.6. Accused 4 and 5 killed her husband Ramdhan with axes. Accused 6, 10, 11, 12, 13 and 14 beat her husband with sticks. Accused 1, 2, 3 and 10 took her husband to the Donka near the house of Vagya. She then raised hue and cries and running after the said persons. On hearing her cries, her daughter P.W.2, her daughter-in-law P.W.3 and P.W.4 came to her. After that, the accused 1 to 4 left the dead body of her husband saying that they will go to kill her son i.e., deceased No.2 Srinu and ran towards the cattle shed. After that, accused No.7 threw a big boulder on the head of her husband. She then fell on the feet of accused 1 and 7 entreating them not to kill her son. Then, accused No.2 beat her on her head with a stick and ran towards the cattle shed to kill her son. She also ran along with her daughter and daughter-in-law, P.Ws.2 and 3. All the accused 1 to 14 beat her son Srinu to death though they requested them not to kill her son and left the place. She further stated that accused No.8 lent some money to her husband deceased No.1 Ramdhan for payment of LIC premium. There was a quarrel between the deceased and the accused regarding the repayment of the debt. In that, accused No.8 sustained injury. The accused gave complaint against the deceased 1 and 2. The accused looted the houses of deceased No.1 Ramdhan, Shankar, Bichya and elder brother of deceased No.1. After that, her husband, son, Shankar, Bichya and one Venkanna left the village due to fear of the accused and did not return to the village for about one month and ten days. 23. P.W.2 Jatoth Jamuna, daughter of deceased No.1 Jatoth Ramdhan and P.W.1, has stated in her evidence that on the date of incident, deceased 1 and 2 (Jatoth Ramdhan and Jatoth Srinu), P.Ws.1 and 3 and their farm servant P.W.5 went to the fields to remove the silt from the Well. She was at her house looking after the children of deceased No.2 Jatoth Srinu. P.W.3 returned from the fields in the evening. When they heard the cries of her mother and P.W.3, she rushed to the house of accused No.6 along with P.W.4 and found her father lying on the ground and all the accused were beating and axing her father with axes and sticks. When she tried to go near, the accused threatened them with sticks. Accused 1, 2, 4 and 5 took their father by holding his hands and legs to donka and dropped him near the house of Vangya. After that, accused No.7 dropped a big boulder on the head of his father. Thereafter, accused 1, 2, 4 and 5 and other accused went to kill deceased No.2 Jatoth Srinu. Then, her mother P.W.1 entreated them not to kill deceased No.2 Srinu as they have already killed her husband. Then, accused No.2 beat her mother with a stick on her head. All the accused ran to the agricultural Well to kill her brother deceased No.2 Srinu. Then, P.Ws.1 and 3 also ran after the accused by raising hue and cry and requested them not to kill Srinu and cautioned deceased No.2 Srinu to go away from that place as the accused are coming to kill him. Thereafter, the accused ran towards her brother and rounded him and killed him. Their farm servant Ramulu was also present at that place. He ran away from that place out of fear. P.W.2 also stated that there are disputes between the accused and deceased 1 and 2 (Jatoth Ramdhan and Jatoth Srinu) with regard to the land. 24. P.W.3 Jatoth Neelamma, daughter-in-law of P.W.1 and the wife of deceased No.2 Srinu, has stated in her evidence that about 1½ years back, herself, both the deceased Ramdhan and Srinu, P.W.1 and their farm servant Ramulu went to their agricultural Well to remove the silt. At about 4 p.m., she returned from the agricultural Well to go to her house. Then, her husband and the farm servant P.W.5 went to their cattle shed. Accused No.3 started a little earlier after removing the silt from the Well of accused No.2 and stayed at the house of accused No.6. A little bit later, she heard the hue and cry of P.W.1 and on hearing the cries, herself and P.W.2 rushed to the lane of Chinna Hatya in front of the house of accused No.6 and found accused 4 and 5 hacking her father-in- law deceased No.1 Ramdhan with axes and the rest of the accused are beating him with sticks and they tried to go near to the deceased, the accused did not allow them and killed her father-in-law deceased No.1 Ramdhan and carried him by holding hands and legs and threw the dead body in the donka near the house of one Vagya. Accused No.7 then threw a big boulder on the head of her father-in-law. Then, all the accused started running saying that they wanted to kill deceased No.2