Case: State Of A.P Vs. Thakkidiram Reddy

3. The prosecution case, in brief, is that in the intervening night of August 10/11, 1990, at or about 1 A.M., all the accused persons formed themselves into an unlawful assembly armed with crow-bars, sticks and other deadly weapons and descended upon the house of Gankidi Mohan Reddy (the deceased) in Thimmapur village. They broke open the door of the house and dragged him into its front yard. When his wife Bhagya Lakshmi (P.W.2) and his brother Gankidi Narsimha Reddy (P.W.3) intervened, A3 beat the former and A2 the latter, both with sticks. Meanwhile, the deceased had extricated himself from the clutches of the miscreants and tried to run away but he was apprehended by them and again brought to the front yard. There A1 beat him with a plough-rod (nagatipale), A2 with a crow-bar and A3 and A5 with sticks. When the parents of the deceased intervened A1 and A4 beat them also. Thereafter the other accused persons started beating the deceased. Gankidi Narsimha Reddy, a cousin of the deceased, then came to his rescue, but he was also caught hold of and beaten up. The miscreants then left the place. All the injured persons were taken to Government hospital, Karim Nagar, in a tractor were their injuries were attended to. However Gankidi Mohan Reddy succumbed to his injuries at about 4 A.M. A few hours later (at about 6 A.M.) P.W. 1 went to L.M.D. Colony Police Station and reported the incident and on his report Syed Sadiq (P.W.13), the Head Constable, registered a case. Circle Inspector P. Satyanarayana (P.W. 15) of Husnabad took up investigation and went to the Government hospital. There he held inquest upon the dead body and sent requisition to the Medical Officer for its post-mortem examination. He then went to the scene of offence, got it photographed and seized some blood stained earth, two pairs of sleepers, two cross-bars and some broke sticks therefrom. In course of investigation he arrested the accused persons and pursuant to the statements made by some of them recovered some crow-bars and sticks. On completion of investigation, he submitted charge sheet against them.4. The motive that was attributed to the accused for committing the offences was that there was a long standing enmity between them and the family of the deceased. According to the prosecution in the year 1982, the deceased, who was the Sarpanch of Thimmapur village, did not permit some relations of A2 and A3 to join their services even though they got appointments as Carobar and Sweeper in the Gram Panchayat under orders of the District Panchayat Officer. This enraged A2 and A3 and they assaulted the deceased. Three days later, when a panchayat was held over the issue the two groups fought with each other for which cases were registered against both. Later on, there was a matrimonial dispute between the cousin of A1 and the daughter of one of the followers of the deceased. Following that dispute the relatives of the girl beat her husband, her father-in-law and A1 for which a case was registered. It is further alleged that A12 usurped the house of one Fakir which was unauthorisedly built on a Government land and the deceased, as the Sarpanch, got a resolution passed for its demolition. He got similar resolution passed when A13 constructed another unauthorised house. Owing to such bitter enmity the accused persons conspired to do away with the deceased and pursuant to that consipiracy they committed the crimes in question.5. The accused persons pleaded not guilty to the charges levelled against them and contended that they were falsely implicated.6. In support of its case, the prosecution examined 15 witnesses but no witness was examined on behalf of the defence. Of the witnesses examined, P.Ws. 1, 2 and 3 and two of their neighbours, namely Gankidi Laxma Reddy (P.W. 4) and Bapu Reddy (P.W. 5), figured as eye witnesses. P.Ws. 1, 2 and 3 narrated the prosecution case detailed earlier and also spoke about their long standing enmity with the accused; and P.Ws 4 and 5 fully supported their version of the incident. The trial Judge discussed the evidence of the above five witnesses threadbare in the light of the arguments canvassed on behalf of the defence against its acceptance and held that so far as the place and time of offence and the overt acts attributed to them, there were no material discrepancies except one or two omissions. The trial Judge found that the evidence of the eye witnesses was corroborated by the evidence of P.W. 12, who held post mortem examination upon the deceased, and of Dr. Raghavaiah who examined P.Ws. 1, 2 and 3 and Gankidi Narsimha Reddy, the cousin of the deceased (not examined) and found injuries on their persons. The trial Judge further found that the F.I.R. was promptly lodged by P.W. 1 and it contained the substratum of the prosecution case. In spite of such findings the trial Judge gave the benefit of doubt of A12 to A21 as their names were not mentioned in the F.I.R.7. The High Court virtually confirmed all the findings of the trial Court in all respects but set aside the convictions of A2 to A11 of the offences under Sections 148 and 302/149 IPC with the following observationsomnibus statement about the culpability of the accused in the testimony of the prosecution witnesses would in the circumstances of the case have to be considered only in the light of specific overt acts attributed to the accused and as may be corroborated by medical evidence. Therefore, we find it difficult to accept that all the appellants were members of the unlawful assembly with the object of committing the offence. In the circumstances, we hold that it is highly unsafe to apply Section 149 and make everyone of them constructively liable. We therefore have no hesitation in dismissing the prosecution case against the appellants on the charge under Section 149 IPC. Accordingly, the conviction of all the appellants accused under Section 149 IPC is set aside.Having rejected the contention that the appellants were members of unlawful assembly, it would be equally unsafe to apply section 148 of IPC on the basis of omnibus statements made by the prosecution witnesses which is not corroborated by medical evidence. Accordingly, the conviction of all the (appellants) accused under Section 148 IPC is setupholding the conviction of A1 for the murder, the High Court observed that all the five witnesses consistently deposed that A1 beat the deceased with a stick meant for ploughing called nagatipale on his head and the doctor (P.W.12) opined that the victim died of the head injury.

Reasoning:
Viewed in the context of the above observations of this court we are unable to hold that the accused persons were in any way prejudiced due to the errors and omissions in the charges pointed out by Mr. Arunachalam. Apart from the fact that this point was not agitated in either of the Courts below, from the fact that the material prosecution witnesses (who narrated the entire incident) were cross examined at length from all possible angles and the suggestions that were put forward to the eye witnesses we are fully satisfied that the accused persons were not in any way prejudiced in their defence. While on this point we may also mention that in their examination under Section 313 of the Code, the accused persons were specifically told of their having committed offences (besides others) under Sections 148 and 302/149 IPC. For all these reasons we reject the threshold contention of Mr. Arunachalam.12. Coming now to the facts of the case, it cannot be gainsaid that since the incident took place in the house of the deceased at the dead of night, PWs. 1, 2 and 3, who were members of his household, were the most natural and probable witnesses. Further, the injuries sustained by them in that night leaves no room for doubt that they were present when the incident took place. As regards P.Ws. 4 and 5, their claim that they saw the incident cannot also be doubted for they were the next door neighbours of the deceased. The evidence of the above five witnesses, so far as it relates to the manner in which the incident took place is consistent and cogent and does not suffer from anyall these materials on record it must be said that the concurrent findings of the Courts below that on the fateful night a mob armed with crow- bars, sticks and other weapons forcibly entered into the house of the deceased, killed him and injured four members of his family who came to his rescue, areis of course true that there are some contradictions in between their statements made in Court and before the police during investigation. Both the Courts below found those contradictions minor and of no moment; and having gone through them we are in complete agreement with the views so expressed.14. As noticed earlier, the High Court, while relying upon the evidence of the above witnesses to uphold the conviction of A1, rejected their evidence qua the other accused, only so far as it related to their convictions under Sections 148 and 302/149 IPC on the grounds, that without strict proof of their specific overt acts they could not be convicted for the above offences only on the omnibus statements of the five eye witnesses about their culpability and that their testimony regarding the overt acts of the other accused was not supported by the medical evidence. In our considered view, none of the ground can be sustained.From the above judgments of this Court it is evident that to ascertain whether a particular person shared the common object of the unlawful assembly it is not essential to prove that he committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object. Once it is demonstrated from all the facts and circumstances of a given case that he shared the common object of the unlawful assembly in furtherance of which some offence was committed - or he knew was likely to be committed - by any other person, he would be guilty of that offence. Undoubtedly, commission of an overt act by such a person would be one of the tests to prove that he shared the common object, but it is not the sole test. Coming now to the present case, the fact that at the dead of night a mob of persons armed with various weapons forcibly trespassed into the house of the deceased after breaking open the door, clearly indicates that they had formed an unlawful assembly with a common object to commit some offence and each of them would be liable for the offence committed or knew likely to be committeed by any of the members of the mob. To ascertain what was the common object of the above unlawful assembly, we will advert later. Suffice it to say, at this stage, that in the facts and circumstances of this case the six accused (with whom only we are concerned in these appeals) would be guilty for the offence committed by any other member of the mob, in furtherance of the common object, without proof of any overt act committed by them. We do not, however, wish to dilate on this aspect of the matter any further as we find the second ground canvassed by the High Court that the ocular evidence regarding overt acts committed by A2 to A5 and A9 is not supported by medical evidence, is factually incorrect.If the injuries were to be considered in isolation we might have persuaded ourselves to give a second thought to the above submission of the learned Counsel but when the injuries are considered in the context of the facts, that there was bitter enmity between the parties, that at an unearthly hour the miscreants armed with various weapons like crow-bars and sticks trespassed into the house of the deceased after breaking open the door, dragged him out of the bed room to the front yard and beat him to death, and that whoever came to his rescue was beaten up, the only conclusion that can be drawn was that they formed the unlawful assembly with the common object of committing murder of the deceased and as soon as their objective was achieved they left theare unable to accept the above contention for the reasons mentioned earlier. That apart, the manner in which the incident took place clearly proves that even if we were to assume that A2 to A5 and A9 did not share the common object of committing the murder, they, being members of the unlawful assembly certainly knew that the murder was likely to be committed by A1 in prosecution of the common object so as to make them liable under Section 302 read with the second part of Section 149 IPC. In either view of the matter, therefore, we are of the opinion that the High Court was not at all justified in acquitting A2 to A5 and A9 of the charges under Sections 148 and 302/149 IPC.