PEDDA NARAYANA & ORS.

STATE OF ANDHRA PRADESH

April 8, 1975

[N. L. UNTWALIA AND s. MURTAZA FAzAL Au, JJ.J

Evidence-Appreciation f-Onzission of details in First Infonnation and Inquest Report-Effect of-Code of Criminal Procedure (Act 5 of 1898) s ..

174~Scope of. '

f The rst accused borrowed mney f!om tc deceased anO' as the money was

~C:~ rpard the deceased filed a suit against him. .Angered by being drawn into hh.gation, A. 1 to A. 3 and three others came upon the deceased in a jeep

d~1ven by A. 4, and ~· 1 to A. 3 getting down from the jeep stabbed the deceased ; v1th daggers and "".h1le the deceased waSi falling down carried hin1 tl\vay in the 1eep.

The co1npan; on of the deceased at the time \vhen the occurrence took place gave the first information to the police. Three days after the incident the dead body was recovered, and inquest was held.

Te four accuse~ were charged with offences of murder andkidnapping, but the tnal ourt acquitted them for the nasons : (i) the First Information did noL contain the overt acts attributed to each of the accused: (ii) details of the

vcrt acts were not mntioned in the Inquest Report and therefore it mu~ be inferred that the eye witnesses did not mention the overt acts to the police; (iii) there was no .reliable. evidence identifying the dead body: and (iv) the motive E \Vas not sufficient to impel the accused to murder the deceased.

On appeal the High Court convicted A. 1 to A. 3 for offences under s. 302 read with ss. 34 and 148 and under s. 364 read \Vith s. 34 I.P.C. A .. 4 was convicted under s. 302 read with s. 149 and under s. 364 read ~:ith s. 34, I.P.C.

Dismissing the appeal to this Court of A. 1 to A. 3 und allowing that of

A. 4,

l-IELD : The High Court rightly believed the evidence of the prosecution witnesses and there was no error in its aproach to the case. '[91 A.-BJ.

( 1) The witness who gave the first information nius.t have been extremely perturbed having seen the attack on his companion.

Even so, all the essential details which a first information should contain are there.

The names of the accused and the circumstances of the murderous assault are mentioned.

Shorn of minute detail the broad picture presented by the prosecutioo was mentioned in the first information which was. lodged soon after the occurrence.

Jt is neither customary nor necessary to mention every 1ninute detail in the first information. [88 A-C]

(2) The object of the inquest proceedings under s. 174 Cr. P.C. is merely to ascertain whether a person has died under suspicious circumstances or whether it \Vas a case of unnatural death, and if so, what was the apparent cause of death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances is foreign to the proceeding5.

Therefore, neither in practice nor in law was it necessay for .the police to have mentioned details of all the overt acts of the accused in the inquest report.

From such absence of details in the inquest report it as wr.ong. to resme that the witnesses did not mentionthe details to the pOhce dunng 1nvesttgat1on.

[89 C-EJ

(3) The dead body was identifiable nd was .identified by the son of the .deceased, the witness who gave the first information and a co-v11lager. [90 E].

. , ;,

(4) Various persons react to circumstances in different ways and it is difficult to say when a motive would be sufficient for a crime.

Moreover, in vie\v of the independent testimony of eye witnesses, whom the High Court has believed the question of motive beco:ine academic.

'[90G-H].

(5) This is not a case where two vie, vs are possible.

The only possible view is that taken by the High Court ano' the High Court rightly reversed the acquittal under s. 417 Cr. P. C. (91 C-D].

6(a) The medical evidence showes that the deceased must have died before the body \Vas put in the jeep and so the charge of kidnapping fails. [91D-E].

(b) , As regards A. 4 there is no reliable evidence to prove actual complicity in the murder.

He is a young boy of l 8 engaged as a <lrivcr.

His name is not mentioned in the first information to the police as haYing taken any part in the assault. [91 H].

(c) Therefore, he could not be convicted for murder. He could be guilty of the offence under s. 201 I. P. C. but he was acquitted of that charge by the trial court. The High Court had not convicted him under that section and no appeal against his acquittal ha~ been filed in this Court and hence he could not be convicted of that offence either. '[92 C-Dl.

CRIMINAL 92 of 1971.

APPELLATE JuR1sorcTION : 1 Criminal Appeal No.

From the Judgment and Order dated the 31st December, 1970 of the Andhra Pradesh High Court in Criminal Appeal No. 868 of 1969.

p. Basi Reddy and G. Narayanarao, for the appellants.

P. Rama Reddy and P. P. Rao, for the respondent.

The Judgment of the Court was delivered by

FAzAL ALI, J.-Appellants A-1 to A-3 have been convicted under

s. 302 read with s. 34 I.P.C. as also under s. 148 I.P.C. They are also convicted under s. 364 read withs. 34 I.P.C. A-1 to A-3 have been F sentenced to imprisonment for life under s. 302 read with s. 34 and A-4 has been awarded the same sentence under s. 302 read withs. 149 I.P.C. Under s. 364 read .,,; th s. 34 the four appellants have been awarded five years rigorous imprisonment each.

In view of the sentences passed, no separate sentence was, imposed. under ss. 147 and 148 I. P. C.

The accused had been acqmtted by G the Additional Sessions Judge, Anantpur, in the State of Andhra Pradesh.

On appeal against acquittal filed by the State before the High Court of Andhra Pradesh, the appeal was anowed and the appellants A-1 to A-4 were convicted and sentenced as mentioned above. Against these convictions, the present appellants have preferred this appeal to this Court.

As the High Court had awarded the sentence of life imprisonment after reversing the order of acquittal passed by the Ad- H ditional Sessions Judge, the appeal to the Supreme Court lies even on facts and as a matter of right under s. 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) . Act, 1970.

The prosecution case may conveniently be divided into four sep~ rate parts-Part-I constitutes the immediate motive for the murder

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86 SUPRE1'fE COURT REPORTS

[1975] SUPP. S.C.R.

A of the deceased; Part JI relates, to the visit of the deceased to Anantpur

"here he was shacj_owed and threatened and forll\S the genesis of the occurrence; Part III consists of the actual murderous assault on the deceased resulting in his death and the last part-Part IV-relates to the recovery of the dead body thre<\ days after the occurrence. This is rather an unfortunate case where the appellants sought to hit upon B a pre-conceived plan to do away with the life of the deceased animated bv rancour and hatred resulting from the act of the deceased in einbroiling the accused in a litigation over a monetary transaction.

In order to understand the case put forward by the prosecution it may be neccs'<iry to give briefly a resume of the four stages of the C prosecution case.

Part-I. The story of the prosecution begins with the purchase of a jeep by A-1 and his brother being jeep No. A.P.A. 2781 from one Kana Rama Subbareddi for a consideration of Rs. 6,000/-.

In order to meet the consideration of the jeep A-1 and his brother had borrowed a sum of Rs. 6,900/- on April 18, 1964 from the deceased

after executing a promissory note in his favour.

As this money was not paid by A-1 to the deceased, the deceased brought a suit in the Court of the Subordinate Judge, Anantpur for realisation oj' the amount.

Some time in the year 1969 A-1 filed an Insolvency Petition before the Subordinate Judge showing his debts to the tune of Rs. 1,96,000/-.

The suit filed by the deceased was posted on February 6, 1969 for evidence to be given by A-1 and this appears to have been the immediate provocation and occasion for planning the murder of the deceased by the appellants.

Part-IT. In view of the fact that the suiC was posted to February 6, 1969 the deceased along with P. W. I-who will hereafter be referred to as Chinna-proceeded to Anantpur on February 5, 1969 and reached there at 8-30 P.M. It is said that while p.w. I Chinna and the deceased were alighting from the bus they saw A-1, A-2 ana A-4 sitting in the jeep near the petrol pump which is situated near the bus-stand.

Chinna and the deceased then went to the house of N. Narayana Rao, P.W. 20 who was their counsel and -stayed thew for the night.

On the next day i.e. February 6, 1969 the suit was adjourned and after the adjournment of the case Chinna and the deceased went to the place where they were staying and on the way some persons with big moustaches appear to have threatened them.

Chinna, however, did not take the threat seriously and proceeded to his destination.

Part-III. On the night of February 6, 1969 the deceased and Chinna went to witness a picture called "Tenali Ramakrishna" in Raghuveera Talkies and it is said that some of the accused had also followed the deceased and went to see the cinema show.

After returning from the picture, while the two persons namely Chinna and the deceased were proceeding south to north and had covered 20 feet from the hotel where they had taken their food, suddenly a jeep came and stopped near the deceased_. According to the prosecution A-1 to A-3

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got down from the jeep along with three other strangers and surrounded A the deceased. Chinna was about one bara away from the deceased.

Thereafter A-2 stabbed the deceased with a dagger on l1is stomach and A-1 stabbed him on the leJt side of the chest and when the deceased was about to fall A'3 is said to have stabbed the deceased with a dagger on his left knee.

When Chinna P.W. l wanted to intervene he was threatened 'by the three stranger who were armed B with daggers and was pushed aside by tl1osc strangers.

Before the deceased could fall down on the ground he was put into the jeep and earned away.

Part-IV. On February 9; 1969 P.W. 16 and the Inspector of Tadipatri went to Cherlepalli. for the purpose of investigation where P.W. 16 received information that a dead body was lying near the Railway gate at Taticherla. The :police party , proceeded to that place and found a dead body lying on its back with injuries on the body.

Tl;~ body was, however, in a bloated condition.

Subsequently , proceedings for inquest under s. 174 of the Code of Criminal Procedure were taken and after the usual investigation a charge-sheet was sul:>- mitted against the appellants. We might mention here that th.e F.I.R. in the. case was lodged by P.W. 1 Chinna on February 6, 1969 before the Sul:>-Inspeetor of Police, Anantpur Police Station and is Ext. P-1 in the case.

The learned Additional Sessions Judge after consideration of the evidence produced before him acquiltd the accusd without considering the intrinsic merits o[ the evidence produced before him on purely general grounds anc\ what he called inherent improbabilities arising out of the case.

The High Court in appeal against the acquittal of the accused found that the learned Additional Sessions Judge was not at all justified in acquitting the accused and that the reasons given by him were wholly untenable in law and accordingly the High Court reversed the order of acquittal and convicted A-1 to A-4. The acquittal of A-5 wa,, however, upheld by the High Court and we are not concerned with him in this appeal.

The learned counsel appearing for the appellants tried to support the judgment of the learned Additional Sessions Judge and pointed out a number of circumstances which according to him cast a serious G doubt on the veracity of the prosecution case.

Jn the first place, it was argued that th< learned Additional Sessions Judge rightly held

tht as the F.l.R. did not contain the overt acts attributed to each of the accused, the story of the prosecution must be held to be an

aftr-thought. Dealing with this aspect of the matter the High Court pemted out that the F .I.R. was lodged soon after the occurrence and there was no occasion for the informant to have mentioned all the H material.Particulars in the F. I. R. which had to be narrated and proved at the tnal.

We find ourselves m complete agreement with the reasons g, iven by the High. Court. Jn fact we find from the perusal of Ext. Pl tnat all the essential details that th~ F.I.R. should contain are given there. The .names of the accused are clearly mentioned, the circumstances leadmg to -the murderous assault on the deceased Linganna have

10 SC/i5--7

A \Jcen set out. It has also been mentioned that the accused got down

from the jeep along with three strangers and stabbed the deceased and then carried him away in the jeep.

It is also mentioned that the occurrence had taken place because the deceased had filed a civil suit against A-1 which constituted the motive for the murder. Tims shorn of minutest detail the broad picture presented by the prosecution was undoubtedly revealed in the F.I.R. which was lodged very soon a(tcr the occurrence. In our opinion, it is neither customary nor necessary to mention eveiy minute detail in the F.l.R. Chinna P.W.1 must have been extremely perturbed because the deceased Linganna had been suddenly attacked by a number of assailants and his body wa~ carried away. It is in that state of mental agony that.he was not able c to give further details in the F.I.R. We are, therefore, clearly of the opinion that the reasons given by the learned Additional Sessiom Judge for rejecting the prosecution case are wholly untenable in law.

Another point taken by the learned Additional Sessions Judge was that in the 'inquest report details of the overt acts committed by th~ various accused have not been mentioned in the relevant column. TI1e D le'1rned Judge in fact has assumed without any legal justification that because the details were not mentioned in the requisite column of the inquest report, therefore, the presumption will be that the eye witnesses did not mention the overt acts in their statements before the police.

To begin with it seems to us that.the learned Additional Session Jndgc's

approach is legally erroneous. A statement recorded by the police during E the investigation is not at all admissible and the proper procedure 1s

to confront the witnesses with the contradictions when they are examined and then ask the Investigating Officer regarding those contradictions.

This docs not appear to have done in this case.

Furtmr more, proceedings for inquest under s. 17 4 of the Code of Criminal Procedure have a very limited scope. Section 174 of the Code as it F then stood read as follows :

"174. Police to enquire and report on suicide. etc.

(1) The officer in charge of a police station or some other police officer spcially empowered by the State Government in that behalf, on receiving information that a person-

(a) has committed suicide; or

(b) has been killed by another, or by an animal, or by machinery, or by an accident; or

\ c) has died under circumstances raising a rea&onable suspicion that some other person has committed an offence; shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Subdivisional Magistrate, shall proceed to the place where the body of such deceased person is and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation and draw up a report

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of the apparent cause of death, describing such wounds, A fractures, bruises and otl1er marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any) such marks appear t<J have been inflicted.

(2) * • * •

( 3) When there is any doubt regarding the cause of death, or when for any other reason the police officer considers it expedient so to do, he shall, subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of itS' being so forwarded without risk of such putrefaction on the road as would render such examination useless."

A perusal of this provision would clearly show that the object or D the proceedings under s. 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so .what is !he apparent cause of the death. The question regarding the detalls as to bow the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under s. 174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report. The High Court has adverted to this point and has rightly pointed out as follows :

"The learned Sessions Judge had also stated that the dekllls regarding the weapons armed by each of the accused and which accused had attacked o~ which part of the body of the deceased are not found in the inquest report and from this he sought to draw the inference that the statements of the witness now found recorded under section 161 Cr. P.C. could not have been the statements then read over to the panchayatdars. Column 9 of the inquest report shows that the injuries on the deceased were caused by knives and daggers. Column ll(a) shows that Al to A3, A4 and AS with 3 strangers came in the jeep driven by A4, got down the jeep, stabbed the deceased with daggers and knives, pushed P.W. 1, lifted the deceased, put him in the jeep, and drove away the jeep and death was the result of the injuries inflicted.

The object of holding any inquest as can be seen from Section 174 Cr.P.C. is to find whether a person died a natural death, or a homicidal death or due to suicide. It was therefore not necessary to enter all the details of the overt-acts in the inquest report. From the mere fact that these details were not noted in the inquest report it cannot be concluded that the statements given by the witnesses and read over at

the inquest did not contain those overt-acts and the statements now produced are those of the witnesses. which were taken later."

The High Court has thus rightly explained that the omissions in the inquest report arc not sufficient to put the prosecution out of Court and the learned Additional Sessions Judge was not at all justified in rejecting the prosecution case in view of this alleged i11firmity.

The karned Additional Sessions Judge was alsd of the opinion that there .was no rehable evidence to identify the dead body of the deceased Linganna and on that ground the prosecution case could be rejected.

Tl:is line of reasoning adopted by the Additional Sessions Judge 1s not C borne out by tlie facts.

The High Court pointed out in their judgment that <there was sufficient evidence before the Court to identify the body of the deceased. It is true that the dead body of tlie deceased was bloated but P.W. 16 the Sub:Jnspector deposed in his evidence that the features of the body were quite clear and visible.

The photographs of the body were taken by P.W. 19 and on seeing o the photographs the High Court was satisfied that the body was easily

identifiable. P.W. 1 Chinna who was fully known to the dcceaseil and who had accompanied him to Anantpur and in whose presence the murder took place said that he went to the place where the body was lying and identified the body. The High Court also pointed out that

P.W. 1 said that the belt, M.O. 6 which was usually worn by the de-

E ceased was also found on the dead body, which completely clinches the issue. Although P.W. 1 was cross-examined at very great length ii was not suggested to him that the dead body found was not that of the

t1eceascd. The body of the deceased was also identified by another co-villager and also by the son of the deceased. In these circumstanc.es, therefore, there was abundant evidence to prove the identification of the dead body and the finding of the learned Additional Sessions Judge F is based on a misreading of the evidence on this point.

The. learned Sessions Judge further held that the motive ascribed to ihe appellants for committing the murder of the deceased was not rnfficient to impel them to plan the murder of the deceased.

This finding of the learned Sessions Judge is based purely on speculation.

G Various persons react to circumstances in different ways and it is difficult to wc.igh the reaction of the persons in golden scales with absolute computoriscd accuracy. There is no doubt that the deceased had drawn the accused in a long litigation involving thousands of rupees as a result of which he had to attend the Court at Anantpur on various dates.

The sequence of circumstances under which the deceased was murdered clearly show~ that there could not have been any other motive but the H institution of the suit. The High Court has also pointed out that the prosecution has established good and suflicicnt motive for the murder of the deceased. Futhcr more, in view of the independent testimony of P.Ws 1, 2 and 3 whom the High Court has believed, and we see no reason to differ from the view of the High Court, the question of motive becomes more or less academic. On thi& point also, in our opinion, the learned Additional Sessions Judge has taken an absolutely wrong view.

We have been taken through the entire evidence of P.W. 1, 2 & 3 who A are independent witnesses and against whom no animus has been established by the accused and we. dd not sec any reawn to disbelieve their evidence.

The High Court, therefore, rightly believed their evidence in order to accept 'the prosecution case. We do not find any error of law in the approach made by the High Court.

It was, however, submitted by Mr. Basi Reddy, learned counsel for the appellants tliat this was a case in which another view was also possible on the evidence and, therefore, the High Court ought not to have interfered with the order of acquittal passed by the learned Additional Sessions Judge, as held by this Court in several cases .

After going through the evidence and circumstances of the present case, huwever, we arc clearly of the opinion that the ratio of the cas'es decided by this Court is wholly inapplicable to the instant case and, therefore, the contention advanced by the counsel for the appellants in this Court is overruled. This is not at all a case where a second view was possible.

On the other hand it was a case where the learned Additional Sessions Judge had given untenable reasons andwhere bis approach was no' ouly perverse, but also legally erroneous. In such circumstances, it ca"-

not be disputed that the High Court had ample powers to reverse the order of acquittal under s. 417 of the Code of Criminal Procedure.

As regards the case of A-4, w.e find that it stands on a different footing and there doe9 not appear to be any legal evidence against th[s appellant.

We arc also satisfied that there is no reliable evidence to prove the charge under s. 364 l.P.C. According to the medical evidence the deceased sustained as many as si.x injuries. The position and the nature of the injuries particularly on the various parts of the body clearly show that they must have been inflicted on the deceased out.- side the jeep .and not when the body was carried in the jeep of A-l.

The medical evidence also shows that the deceased "could have died instantly within minutes of the occurrence. On the other hand there is absolutely no evidence to show that any injury was inflicted either wher,

the deceased was put into the jeep or when be was carried away in the jeep. From these circumstances, therefore, it is manifest that all the

six injuries must have been caused during the' course of the occurrence on the spot before the body was put into the jeep and in all probability the deceased must have died at the spot. lf this was so, then the charge under s.364 I.P.C. must necessarily fail, because there was no question of kidnapping the deceased for the deceased had died even before he

w.cs kidnapped.

So far as A-1 to A-4 arc concerned, this question is more or less academic because they have already been convicted by the High Court under s. 302 read with s. 34 and A-4 under s. 302 read with s. 149 T.P.C. As regards A-4 is concerned, we are satisfied that there is no reliable evidence to prove his actual complicity in the murder of the deceased.

The case of the prosecution is thau A-4 who is a young boy of 18 years was employed as a driver of the jeep after the same was purchased by A-1.

It is true tha\ A-4 had taken A-1 to A-3 to the scene of occurrence.

But this was a part of his duty and tlJat by itself would not show a complicity in the offence of murder which was committed later.

Although in the course of the trial the

witnesses hav() stated that this appellant also tried to take the body in the jeep while he was sitting there or that he had come out of the jeep, this evidence cannot be accepted because it is nowhere mentioned in tne F.I.R. that A-4 had taken any part in the assault on the deceased.

There is only a reference to the three strangers and A-1 to A-3 and there is no reference to A-4 excepting that he was driving the jeep.

In these circumstances we are unble to agree thM A-4 had shared the common object of murdering the deceased at any stage.

The only offence that could have been committed by A-4 was under s. 201 I.P.C. because alter the deceased was put into the jeep he knew fully well that he had been assaulted by the appellants and was being taken away for the purpose of disposal of the dead body.

Unfortunately, however, though A-4 was charged under s. 201 he was acquitted by the learned Additional Sessions Judge and even the High Court has not convicted him under that section. No appeal against his acquittal has been filed in this Court. In these circumstances therefore it is not possible for us to convict him for the first time under s. 201 I.P.C. in the present appeal. For these reasons therefore it follows that A-4, namely, Budekula Kullayappa is entitled to acquittal as his complicity in the actual assault on the deceased has not been proved.

Nor has it been proved that he had shared the common object of the crime with others.

The result is that convictions and sentences passed on all the appellants under s. 364 read with s. 34 I.P.C. are set aside.

The orders of . conviction and sentence under s. 302 read with s. 34 in so far as A-1

to A-3 are concerned are upheld.

The appeal of A-4 is allowed and the order of the High Court convicting him under s. 147 and under s. 302 read with s. 149 is set aside and he is acquitted and is directed to be released forthwith. The appeals of A-1 to A-3 are dismissed.

V.P.S.

#~·.\l.; l'l;,

, Appeals partly allowed