THE HONOURABLE SRI JUSTICE D.S.R.VARMA AND THE HONOURABLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1761 of 2009 ORAL JUDGMENT: (per THE HON’BLE SRI JUSTICE D.S.R.VARMA) Heard the learned Public Prosecutor, appearing for the appellant, as well as the learned counsel appearing for the respondents. 2. Appellant herein is the State and the respondent Nos.1 to 11 herein are A-4, A-6, A-7, A-10 and A-11 to A-19, respectively, in Sessions Case No.355 of 1998. 3. Aggrieved by the judgment, dated 28.06.2004, passed by the III Additional District and Sessions Judge (Fast Track Court), Ongole, in Sessions Case No.355 of 1998, acquitting the respondents herein, A-4, A-6, A-7, A-10 and A-11 to A-19, respectively, of the offences punishable under Sections 148 and 307 of the Indian Penal Code (for brevity “IPC”) and also acquitting the respondent Nos.4 to 11, A-10 and A-13 to A-19, respectively, the State has preferred this Criminal Appeal. 4. The case of the prosecution, in brief, is that there were political grudges and ill-feelings between the group of A-1 and another person, who was cited as L.W.12, in R.R.Palem Village; that, while so, on 14.01.1998, at about 7 am., two persons, who are originally cited as L.Ws.18 and 19, went to the lands of one Kilari Venkata Subbamma to graze their cattle; that, after some time, at about 7.30 am., L.Ws.15 to 17 also went to the lands of said Kilari Venkata Subbamma and others for answering the calls of nature; that, there, some dispute arose between them and A-6 about playing of cricket at that place; that, some how, the situation was pacified; that, later, on the same day, when A-6 was passing through the bazaar, he heard the cries of L.W.3 and picked up a quarrel with him; that, immediately, at about 1.00 pm., on the same day, A-1 and A-3 to A19, who were waiting for an opportunity to attack one Chandra Venkateswarlu (hereinafter referred to as “the deceased”) and with a common object of murdering the group persons of L.W.12, formed themselves into an unlawful assembly, armed with deadly weapons, and beat the deceased; that A-1 beat P.W.1 with an iron rod on his hand, A-12 beat P.W.1 with a stick on his shoulder, A-5 beat P.W.2 with a stick on his head and hands, A-1 beat P.W.3 with an axe on his head, A-11 beat P.W.3 with a stick on his eyebrows, A-2 beat the deceased with a stick on his back, A-1 beat the deceased with an iron rod on his head and all over his body, as a result, the deceased fell down with injuries and became unconscious; that P.Ws.1 to 3 also sustained injuries and fell down; that all the accused hurled stones against P.Ws.1 to 3 and the deceased; that on seeing the police, the all accused left the place, or otherwise, even P.Ws.1 to 3 would have been subjected to death at the hands of the accused and that after completion of all the necessary formalities, police laid the charge sheet. 5. When the charges under Section 148 IPC against A-1 to A-19, under Section 302 IPC against A-1, A-2, A-8 and A-19, under Section 302 read with Section 149 IPC against A-3 to A-7 and A-9 to A-19, under Section 307 IPC against A-1 and A-12, under Section 302 read with Section 149 IPC against A-2 to A-11 and A-13 to A-19, under Section 307 IPC against A-5, under Section 307 read with Section 149 IPC against A-1 to A-4 and A-6 to A-19, under Section 307 IPC against A-1 to A-11 and under Section 307 read with Section 149 IPC against A-2 to A-10 and A- 12 to A-19 were framed, read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried. 6. In order to substantiate its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P-1 to P-11, besides M.Os.1 to 5, on its behalf. On behalf of defence, no witnesses were examined, but marked Exs.D-1 to D-5. 7. The trial Court, having appreciated the entire evidence, both oral and documentary, available on record, convicted some of the accused of the offences with which they were charged and acquitted some of the accused, who are respondent Nos.1 to 11 herein. Aggrieved by the order of acquittal, recorded by the trial Court, the State has preferred the present Criminal Appeal. 8. The statement given by P.W.1 was registered as F.I.R. P.Ws.1 to 3, who were injured, were cited as eyewitnesses. The Doctor, who treated the injured witnesses, P.Ws.1 to 3, was examined as P.W.5. P.W.13, who conducted autopsy on the dead body of the deceased, issued postmortem certificate, under Ex.P- 10. 9. Since the case is to be decided merely on the strength of the evidence of P.Ws.1 to 3, who are injured eyewitnesses, not much of reference is required to be made regarding the evidence of other witnesses, of course, there are some supporting witnesses. Hence, presently, the entire focus is to be made only on the evidence of P.Ws.1 to 3, the medical evidence and the statement of P.W.1, under Ex.P-1. 10. The whole question that falls for consideration, in this Criminal Appeal, is as to whether the trial Court had rightly considered the evidence on record, while acquitting some accused, who are the respondents herein. 11. There is no controversy with regard to the conviction of some of the accused. The present Criminal Appeal is only against the order of acquittal, recorded by the trial Court, insofar as A-4, A-6, A-7, A-10 and A-13 to A-19. 12. It is to be recalled that the whole case of the prosecution is that there was almost a free fight on a trivial issue that took place in the bazaar. There were several people watching around and only the persons belonging to the accused group attacked the deceased and P.Ws.1 to 3. 13. It is to be mainly seen that in Ex.P-1, which is the earliest statement of P.W.1, before the police, which took the shape of F.I.R., P.W.1 categorically stated that except the accused who were convicted by the trial Court, the other accused, who participated in the attack, only hurled stones at the deceased and the other injured. No specific overt acts have been attributed against A-4, A-6, A-7, A-10 and A-13 to A-19, the respondents herein. 14. It is to be further seen that the same version, which was reduced into writing in Ex.P-1, has been almost reproduced in the oral evidence of P.Ws.1 to 3. The net result of the evidence of P.Ws.1 to 3 read with the postmortem certificate, under Ex.P-10, is to the effect that, no doubt, the attack was made by the accused on the deceased and P.Ws.1 to 3, but the death of the deceased and the injuries on P.Ws.1 to 3 were because of the attack made by the accused, who were convicted by the trial Court. 15. Thus, a sweeping allegation was made against all the accused that they hurled stones and nothing else. The trial Court had observed, in this context, that, at best, their participation if at all proved by the witnesses, would fall under Section 148 IPC. But, unfortunately, even though a charge was framed under Section 148 IPC, there was no conviction against A-4, A-6, A-7, A-10 and A-13 to A-19, the respondents herein, including the other accused, who were convicted by the trial Court, for the said charge. Further, some of the accused were convicted of the offences punishable under Sections 302 read with Section 34 IPC and 307 IPC. 16. If really, A-4, A-6, A-7, A-10 and A-13 to A-19, the respondents herein, have participated in the said incident, the trial Court would have recorded the conviction against them along with the other accused, who were convicted for the other offences. But, when there was no conviction against the other accused, who were already convicted by the trial Court, under Section 148 IPC, such a conviction cannot be recorded against A-4, A-6, A-7, A-10 and A-13 to A-19, the respondents herein. 17. Apart from the above discussion and as already pointed out, there was no whisper of overt acts made by A-4, A-6, A-7, A- 10 and A-13 to A-19, the respondents herein, either in the depositions of P.Ws.1 to 3 or in the statement of P.W.1, under Ex.P-1, before the police, basing on which a case in Crime No.1 of 1998 was registered against the accused. 18. In such circumstances, the trial Court had pointed out that mere presence of some of the persons shall not necessarily be construed as having common object or common intention, attracting the provisions of Section 148 IPC. The same ought to be proved by adducing reliable evidence. The question of adducing reliable evidence comes into picture only when there are specific overt acts attributed against A-4, A-6, A-7, A-10 and A-13 to A-19, the respondents herein. 19. As already pointed out, except the blanket allegation that A-4, A-6, A-7, A-10 and A-13 to A-19, the respondents herein, that too, along with the other accused, who were convicted by the trial Court, hurled stones, no specific overt acts have been attributed against them. In such a case, particularly, when the offence had taken place in the daylight, in a bazaar, it is difficult to point out specifically a person or persons as responsible for the death of the deceased or the injuries caused to P.Ws.1 to 3. 20. Therefore, the trial Court, in our considered view, has rightly discussed the circumstances that are relevant and recorded the order of acquittal insofar as A-4, A-6, A-7, A-10 and A-13 to A-19, the respondents herein, and we do not find any irregularity or irrationality in the reasoning accorded by the trial Court, in acquitting A-4, A-6, A-7, A-10 and A-13 to A-19, the respondents herein, in the impugned judgment. 21. For the foregoing, the Criminal Appeal fails and is liable to be dismissed. 22. In the result, the Criminal Appeal is dismissed. _______________________ JUSTICE D.S.R.VARMA _______________________ JUSTICE R.KANTHA RAO 22ND DECEMBER 2009 DR