GOLA PULLANNA AND ANR. v.

STATE OF ANDHRA PRADESH

AUGUST 13, 1996

[G.N. RAY AND G.T. NANA VAT!, JJ.]

Indian Penal Code, 1860: Sections 148 and 302 r/w 149-12 accused t1ieli---Accused Nos. 2 died dwing trial Accused No. 5, 3, 5, 7 and 12 acquitted and Accused Nos. J, 4 6 and 8 to 11 convicted by trial court-All 7 accused

. challenged their conviction-Accused No. 1 died 'dwing the pendency of ap- C peal-High Court holding accused Nos. 5 and 7 were wrongly acquitted, while acquitting Accused Nos. 4.5, 8 and ](}-Whether the conviction of accused Nos. 9 and 11 can be upheld under Sections 148 and 302 read with 149----Held: Yes, the High Cowt recorded a categorical finding that Accused Nos. 5 and 7 were wrongly acquitted-Therefore, even after the acquittal of Accused Nos. D 4, 6, 8 and JO the High Court was justified in proceeding on the basis that more than 5 person participated in the assault.

Evidence Act, 1872 : Ei•idence-Appreciation of-Acceptance of the evidence of interested witnesses.

Held: To be sc1utinized tt:ith care and caution-No requirenient of lalv that their evidence can not be relied upon in the absence uf independent co"oboration.

One 'S', along with his uncle 'B' (PW-1) and his grandson 'J' (PW-2),

had gone to his lime garden for watering lime trees. At about sunset time F they started returning aftd when they had come near the bus stand, Accused No. 1 alongwith other 11 accused assaulted 'S' with hunting sickles, dag gers, spears and hatchets, because of enmity. "S" died on the spot. "J" remained near the dead body and 'Y' (P.W. 2) went and lodged a complaint

(Exh.Pl) in writing. All the accused were tried for offences punishable G under Sections 148, 302 read with 149 IPC and in the alternative for the offences punishable under Section 302 read with section 34 I.P.C. Accused No. 2 died during the pendency of the trial. The sessions judge believed the presence of the three eye-witnesses to the extent of their seeing the attack against the deceased with deadly weapons like spears, hatchets and hunting sickles. However, in view of the corrections made in the names of Accused H

A Nos.Sand 7 in the written complaint (Exh. Pl) the sessions Judge doubted their participation in the offence and aclJuitted them. Accused No. 3 and 12 were also given the benefit of doubt. The rest of the accused that is Accused Nos. 1, 4, 6 and 8 to 11 were convicted under Sections 148 and 302 read with Section 149 I.P.C.

All the 7 accused challenged their conviction. During the pendency of the appeal Accused No. 1 died. The High Court did not agree with the trial court and held that Accused Nos.Sand 7 were wrongly acquitted. The High Court also rejected the contention that there was delay' in lodging the first information report and that it was recorded after deliberation. The High Court believed that P.W.1, P.W. 2 and P.W. 3 were the eye-witnesses to the incident but observed that as they were interested witnesses their evidence was required to be scrutinized with caution. 'The High Court further held that their evidence did not suffer from material discrepancies. As regards Accused Nos. 4, 6, 8 and 10 the High Court gave them the benefit of doubt.

As regards other accused the High Court held that their acquittal could not be set aside in absence of an acquittal appeal against them. However, the conviction of Accused Nos. 9and11 was upheld. Thus, the conviction of the appellants and the sentences awarded to them were confirmed by the High Court and to that extent the appeal was dismissed.

E In Appeal to this court it was contended for the appellant that admittedly, there was enmity between the party of the deceased and the party of the accused and as the three eye-witnesses belonged to the party of the deceased their evidence should not have been accepted without indepdendent corroboration; that correction of names of Accused Nos. S, 7 and 11 F in the written complaint clearly indicates thatthere were deliberations after the complaint was given to the police and those a,£cused have been falsely implicated subsequently; that in their evidence the eye-witnesses had improved upon their versions before the police in .order to bring their testimony in conformity with the medical evidence they had stated before the court that blows with hatchets were also given to the deceased and that G Accused Nos.Sand 7 were acquitted by the trial court and Accused Nos. 4, 6, 8 and 10 having been acquitted by the High Court the conviction of the appellants under Sections 148 and Section 302 read with Section 149 could not have been upheld by the High Court.

H Dismissing the appeal, this Court

GOlA PULL.ANNA v. STATE 605

HELD : 1. The fact that there was enmity between the two factions was not in dispute and both the courts belows have appreciated the evidence of eye-witnesses bearing that aspect in mind. The High Court hits rightly observed that they being interested witnesses their evidence was required to be scrutinised with care and caution. The submissio\i that their evidence could not have been relied upon in absence of independent corroboration cannot be accepted as there is no such requirement of law. Even after close scrutiny both the courts thought it fit to rely upon their evidence and it cannot be said that they committed any error in doing so. [608-H; 609-A-B]

2. Neither the time interval nor the nature of corrections indicate

that the corrections were made with a view to falsely implicate Accused C Nos. 5, 7 and 11. So far as Accused No. 11 is concerned it was not even suggested that there was any other person in that village by similar name.

Therefore, no inference can be drawn from the said corrections that they were made ma/a fide with a view to falsely involve.those accused. [609-H;

610A]

3. There is no inconsistency found between the medical evidence and the evidence of P.W. 1. A hatchet is not very different from an axe, the difference being in size only. Therefore, the discrepancy appearing in the evidence of P.W.1 is not of such a nature as would create any doubt regarding participation in the attack by Accused Nos. 5 and 11. Challenge to the E evidence cf P.W. 2 on the same ground is really misconceived. An atempt was made by the defence in the cross-examination of this witness to establish that before the police he had not stated tliat Accused Nos. 5 and 11 had hatchets. He denied that suggestion and maintained that he had not stated so before the police. P.W. 9, the investigating officer, in his cross examination stated that such a statement was made by the witness before him. Thus F there was no inconsistency at all between his earlier version and the version before the court. P.W. 3, stated generally that the accused had assaulted the deceased with hunting sickles, spears, hatchets and daggers. His evidence as regards the weapon carried by Accused No. 5 is in consistent With the evidence of other two eye witnesses in as much as he stated that Accused G No. 5 had a spear at that time. This witness had seen the assault from a little distance and, therefore, he appears to have committed a mistake while describing the weapon carried by Accused No. 5. As the assault was sudden and it had taken place at sun-set time much importance cannot be given to such discrepancies and it would not be proper to reject the evidence of the eye witnesses because of such discrepancies. (610-H; 611-A-D] H

4. The High Court has recorded a categorical finding, after re-appreciating the evidence, that Accused Nos. 5 and 7 were wrongly acquitted by the Sessions Judge. Therefore, even after the acquittal of Accused Nos. 4, 6, 8 and 10 the High Court was justified in proceeding on the basis that there were more than five persons out of the named accused who had B participated in the assault on the deceased and confirming the conviction of Accused Nos. 9 and 11 under section 302 read with section 149 I.P.C.

[613-C-D]

Krishna Govind Patil v. State of Maharashtra, [1964] 1 SCR 678 and Maina Singh v. State of Rajasthan, [1976] 3 SCR 651, referred to.

C Brathi alias Sukhdev Singh v. State of Punjab, [1991] 1 SCC 519 relied

on.

Marachalil Pak/at v. State of Madras, AIR 1954 SC 648; Sunder Singh

v. State of Punjab, AIR (1962) SC 1211 and Harshad Singh v. State of Gujarat, [1976] 4 SCC 640, cited.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 120 of 1984.

From the Judgment and Order dated 28.10.82 of the Andhra Pradesh High Court in Crl. A. No. 756 of 1981.

K. Madhava Reddy and G. Narasimhulu for the Appellants.

Anil Kumar for the Respondent.

The Judgment of the Court was delivered by

NANAVATI, J. This appeal by Original Accused nos. 9 and 11 arises out of the judgment and order passed by the Andhra Pradesh High Court in Criminal Appeal No. 756 of 1981 confirming the order of conviction and sentence passed by the Court of the Sessions Judge, Cuddapah in Sessions Case No. 45 of 1980.

On 8.9.1979 at about 4.30 P.M. Sivarami Reddi alias Sivanna of Village Kondapurarn along with his uncle Bodella Yellareddi (P.W.1) and his grandson Jayachandra Reddy (P.W. 2) had gone to his lime garden for watering lime trees. At about sunset time they started returning and when they had come near the bus stand, Accused No. 1 along with other 11 H accused assaulted Sivanna with hunting sickles, daggers, spears and

GOLAPULIANNAv. STATE[NANAVATI, J.] 607

hatchets, because of the enmity between the party of Sivanna and the party A of Accused No. 1 Sivanna died on the spot. Jayachandra Reddy, remained near the dead body and Yellareddy (P.W. 1) went to the police station. He gave a complaint (Exh. P-1) in writing and on that basis an offence was registered. All the 12 accused were chargesheeted by the police and they came to be tried in the Court of Sessions, Cuddapah for the offences punishable under Sections 148, 302 read with 149 I.P.C. and in the alternative, for the offences punishable under Section 302 read with Section 34 I.P.C. During the pendency of the trial Accused No. 2 died and the trial proceeded against the remaining 11 accused.

In order to prove its case the prosecution mainly relied upon the C evidence of three eye-witnesses, namely, P.W. 1 Bodella Yellareddy, P.W. 2 Jayachandra Reddy and P.W. 3 Shaik Bashu. The learned Session Judge believe, d the presence of the three eye-witnesses near the scene of offence and held that their evidence deserved to be believed "to the extent of their seeing the attack against the deceased with deadly weapons like spears, hatchets and hunting sickles." However, in view of the corrections made in D the names of Accused Nos. 5 and 7 in the written complaint (Exh. P-1) the learned Session Judge doubted their participation in the offence and acquitted them giving benefit of doubt. As it was found that Accused Nos. 3 and 12 were of a different village and had no motive to participate in the attack they were also given benefit of doubt. The learned Sessions Judge E convicted the rest of the accused that is Accused Nos. 1, 4, 6 and 8 to 11 under Sections 148 and 302 read with 149 I.P.C. and sentenced them to undergo imprisonment for life.

All those 7 accused challenged their conviction by filing an appeal F in the High Court. During the pendency of the appeal Accused No.1 died.

The High Court did not agree with the finding recorded by the trial court that there were interpolations in the written complaint (Exh. P-1) and held that Accused Nos. 5 and 7 were wrongly acquitted. The High Court also rejected the contention raised on behalf of the defence that there was delay G in lodging the first information report and that it was recorded after deliberation and consultations. The High Court believed that P.W. 1, P.W. 2 and P.W. 3 were the eye-witnesses to the incident but observed that as they were interested witnesses their evidence was required to be scrutinised with care and caution. After carefully scrutinising their evidence the High Court held that it did not suffet from material discrepancies or variations H

A as contended by the defence. As regards Accused Nos. 4, 6, 8 and 10 who according to the eye-witnesses had given spear blows to the deceased the High (; ourt held that the evidence of the eye-witnesses was not consistent with respect -to the part played by them, and also with the medical evidence and, therefore, they deserved to be given benefit of doubt. Believing the

presence of the other accused except Accused Nos. 4, 6, 8 and 10, the High Court held that even though the acquittal of the acquitted accused could not be set aside in absence of an acquittal appeal against them, the conviction of Accused Nos. 9 and 11 under Section 302 rad with Section 149 could be upheld. Thus, the conviction of the appellants and the sentences awacded to them were confirmed by the High Court and to that extent the appeal was dismissed.

The learned counsel for the appellant raised four contentions before us. His first Gontention was that admittedly, there was enmity between the party of the deceased and the party of the accused and as the three D eye-witnesses belonged to the party of the deceased their evidence should not have been accepted without independent corroboration. The second contention was that correction of names of Accused Nos. 5,7, and 11 in the written complaint (Exh. P-1) clearly indicates that there were deliberations after the complaint was given to the police and those accused have been falsely implicated subsequently. The next contention was that in their E evidence the eye-witnesses had improved upon their versions before the police and in order to bring their testimony in conformity with the medical evidence they had stated before the court that blows with hatchets were also given to the deceased. It was lastly contended that Accused Nos. 5 and 7 were acquitted by the trial court and Accused Nos. 4, 6, 8 and 10 F having been acquitted by the High Court the conviction of the appellants under Section 148 and Section 302 read with Section 149 could not have been upheld by the High Court. It was also submitted that even though the High Court has reversed the finding \vith respect to the involvement _of Accused Nos. 5 and 7, in view of their acquittal, the acts alleged to have been committed by them cannot be taken into consideration either for G inferring the common object of the unlawful assembly or for holding the appellants vicariously liable.

The fact that there was enmity between the two factions was not in dispute and both the courts below have appreciated the evidence of the H eye-witnesses bearing that aspect in mind. The High Court has rightly

GOLAPULlANNAv. STATE[NANAVATI, J.j 609

observed that they being interested witnesses their evidence was required A to be scrutinised with care and caution. The submission of the learned counsel that their evidence could not have been relied upon in absence of independent corroboration cannot be accepted as there is no such requirement of law. Even afte.r close scrutiny both the cou5ts though it fit to rely upon their evidence and it cannot be said that they committed any error B in doing so.

There is no substance in the second contention also. The corrections which we find in the complaint are with respect to the names of Accused Nos. 5 and 7 and the name of the father of Accused No. 11. Initially, the name of Accused No. 5 was mentioned as Nagireddi's son but it was C corrected to read Nagireddi's son Obula Reddy. Accused Nos. Ts name was written as Chinna Narayana Reddy but it was corrected to read as Chinna Venkata-Narayanareddi. The name of the father of Accused No. 11 was written as Bali Reddi but it was corrected and Obula Reddi was written.

P.W.l has explained that when the complaint was read over to him

he realised that he had not given the names of Accused Nos. 5, 7 and the name of the father of Accused No. 11 correctly. Initially he had described Accused No. 5 as Nagireddi's son and later he became more exact by stating his name as Bodela Nagireddi's son Obul Reddy. He corrected the E name of Accused No. 7 from Bodela Subbarayudu's son Chinna Narayana Reddy to. Bodela Subbarayudu's son Chinna Venkata Narayana Reddy.

He had wrongly mentioned father's name of Accused No. 11 as Kabugota Bali Reddi. As his father's correct name is Obula Reddi he struck off Bali Reddi and wrote Obula Reddi. These corrections cannot be F regarded as improvements suggestive of deliberations and false involvement. The incident in this case had taken place at about 6.30 P.M. The offence was registered at 7.00 P.M. on the basis of the written complaint given by P.W.1. We find from the first information report that the distance between the place where the offence took place and the police station was half a kilometer. Thus, within a very short time the written G complaint was prepared by P.W. 1 and handed over to the officer incharge of the Kondapuram Police Station and immediately thereafter on the basis of the said complaint the first information report was prepared. Neither the time interval nor the nature of corrections indicate that the corrections were made with a view to falsely implicate H

A Accused Nos. 5, 7 and 11. So far as Accused No. 11 is concerned it was not even suggested that there was any other person in Village Muthucumarri by name "Sambasiva Reddy son of Kabugota Balireddy".

Therefore, no inference can be drawn from the said corrections that they were made ma/a fide with a view to falsely involve those accused.

B It was next contended that the eye-witnesses P.W.1 and P.W. 2 have deliberately made a material improvement in their evidence as regards the weapons carried by Accused Nos. 5 and 11 so as to bring their evidence in line with the medical evidence and, therefore, their evidence should not have been believed without independent corroboration at least with respect C to Accused Nos. 5 and 11. In his written complaint P.W. 1 had stated that the accused had assaulted Sivanna with sickles, spears and axes. In the inquest report (Exh. P-5) it was mentioned that the deceased died due to injuries caused to him with hunting sickles, daggers and spears.· But in his evidence P.W. 1 stated that the injuries to the deceased were caused with D hunting sickles, daggers, hatchets and spears. In his cross-examination he admitted that he had not referred to hatchets in bis complaint and that be knows the difference between an axe and a hatchet. Thus there is a discrepancy between bis evidence and what he stated before the police as regards the weapons with which Accused Nos. 5 and 11 bad caused injuries to the deceased. However, it would not be proper to infer therefrom that E the witness was deliberately making an improvement with a view to bring his evidence in line with the medic~! evidence. P.W. 1 was the first witness to be examined in the case and there was nothing either in the post mortem notes or in any other material on record to show that the injuries found on the deceased could not have been caused by an axe. Therefore, it cannot F be stated that he was deliberately changing the weapons carried by Accused Nos. 5 and 11 with a view to make bis evidence consistent with the medical evidence. Doctor who performed the post mortem exaniination was examined two days after the evidence of P.W. 1 and P.W. 2 was recorded. A question was put to him in his cross-examination that if the victim was lying on the ground immobile and if a blow was given whether G any of the injuries noticed on the deceased could have been caused by such a blow. The doctor replied in the negative. It was not positively put to the doctor that none of the injuries noticed on the person of the deceased was possible by a hatchet blow. It was also not put to him that none of the injuries noticed by him could have been caused by an axe. We, therefore, H do not find any inconsistency between the medical evidence and the

GOLAPULLANNAv. STATE [NANAVATI, J.j 611

evidence of P.W.l. A hatchet is not very different from an axe, the dif- A ference being in size only. Therefore, the discrepancy appearing in the evidence of P.W. 1 is not of such a nature as would create any doubt regarding participation in the attack by Accused Nos. 5 and 11. Challenge to the evidence of PW. 2 on the same ground is really misconceived. An attempt was made by the defence in the cross-examination of this witness to establish that before the police he had not stated that Accused Nos. 5 and 11 had hatchets. He denied that suggestion and maintained that he had so stated before the police. P.W.9, the investigating officer, in his cross-examination stated that such a statement was made by the witness before him. Thus there was no i'lconsistency at all between his earlier version and the version before the court. P.W. 3 stated generally that the accused had assaulted the deceased with hunting sickles, spears, hatchets and daggers. His evidence as regards the weapon carried by Accused No. 5 is inconsistent with the evidence of other two eye witnesses inasmuch as

he stated that Accused No. 5 had a spear at that time. This witness had seen the assault from a little distance and, therefore, he appears to have D committed a mistake while describing the weapon carried by Accused No.

5. As the assault was sudden and it had taken place at the sunset time much importance cannot be given to such discrepancies and it would not be proper to reject the evidence of the eye-witnesses because of such discrepancies.

Lastly, it was contended by the learned counsel, relying upon the decisions of this Court in Krishna Govind Patil v. State of Maharashtra, [ 1%4] 1 SCR 678 and Maina Singh v. State of Rajasthan, [1976] 3 SCR 651,

that as the Accused Nos. 5 and 7 were acquitted by the trial Court and Accused Nos. 4, 6, 8 and 10 came to be acquitted by the High Court the F appellants could not have been convicted under Section 302 read with Section 149 l.P.C.

In Krishna Govind Patil' case (supra) it has been held that where more than one person are charged with substantive offence read with section 34 and if others are acquitted conviction of one under substantive G offence read with Section 34 cannot be sustained because before a court could convict a person under Section 302 read with Section 34, it should come to a definite conclusion that the said person had a prior concert with one or more other persons, named or unnamed, for committing the said offence. When the other accused were acquitted either on the ground that H

A the evidence was not acceptable or by giving benefit of doubt to them, the result in law would be the same; it would mean that they did not take part in the offence. If they did not act conjointly with the remaining accused, the remaining accused could not have acted conjointly with them. In the absence of any evidence to indicate that the persons other than the remaining accused participated in the offence, his conviction under Section 302 read with Section 34 cannot be sustained.

In the case of Maina Singh v. State of Rajastha11, [1976] 3 SCR 651 this Court has held that it is not permissible to invoke Section 149 or Section 34 LP.C. in the case where the accused is charged with commission of an offence only with named persons as co-accused and others have been acquitted. It was submitted that when other accused are acquitted by giving them benefit of doubt then the remaining accused can be convicted only for his own act and not for the acts committed by others.

Both these cases were considered by this Court in Brat/ti alias Sukhdev Singh v. State of Punjab, [1991] 1 SCC 519 and distinguished on the ground that "in none of them the appellate court is shown to have disagreed with the trial court's conclusion on facts, and the appellate court has proceeded on the footing that the order of acquittal recorded is correct.

This Court after referring to its earlier decisions in Marachalil Pak/at

v. State of Madras, AIR (1954) SC 648, Sunder Singh v. State of Punjab, AIR (1962) SC 1211 and Harshadsingh v. State of Gujarat, (1976) 4 SCC 640 has held that "before Sections 34, 149 or 120B can be applied, the court F must find with certainty that there were at least two persons sharing the common intention or five persons sharing the common object or two persons entering into an agreement. The principle of vicarious liability does not depend upon the necessity to convict a requisite number of persons; it depends upon proof of facts beyond reasonable doubt which makes such G a principle applicable." This Court has also held that "in the matter of appreciation of the evidence the powers of the appellate court are as wide as that of the trial court. It has full power to review the whole evidence and all relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused. When several persons are alleged to have committed an offence in furtherance of the common intention and all H except one are acquitted, it is open to the appellate court to indirectly or

GOlAPULIANNAv. STATE[NANAVATI, J.] 613

incidentally find out on a reappraisal of the evidence that some of the A accused persons have been wrongly acquitted, although it could not interfere with such acquittal in the absence.of an appeal by the State Government. The effect of such a finding is not to reverse the order of acquittal into one of conviction or visit the acquitted person with criminal liability.

The finding is relevant only in invoking against the comicted person his constructive criminality. Where the evidence examined by the appellate court unmistakably proves that the appellant was guilty under Section 34 having shared a common intention with the other accused who were acquitted and that the acquittal was bad, there is nothing to prevent the appellate court from expressing that view and giving th> finding and determining the guilt of the appellant before it on the basis of that finding."

In this case, the High Court has recorded a categorical finding, after reapreciating the evidence, that Accused Nos. 5, and 7 were wrongly acquitted by the learned Sessions Judge. Therefore, even after the acquittal of Accused Nos. 4, 6, 8 and 10 the High Court was justified in proceeding on the basis that there were more than five persons out of the named D accused who had participated in the assault on the deceased "nd confirming the conviction of Accused Nos. 9 and 11 under Section 302 read with Section 149 I.P.C.

As we do not find any substance in any of the contentions raised on E behalf of the appellants this appeal is dismissed. The appellants were ordered to be released on bail during the pendency of this appeal. Therefore, they are ordered to sarrender immediately to serve out the remaining sentence.

S.S.

Appeal dismissed.