B. SUBBA RAO AND ORS.

PUBLIC PROSECUTOR, HIGH COURT OF

ANDHRA PRADESH AT HYDERABAD

AUGUST 7, 1997

[M.K. MUKHERJEE AND S. SAGHIR AHMAD, JJ.]

Indian Penal Code, 1860-Sections 148, 302/149/Criminal Procedure Code, 1973-Section 379-Tiial Cowt acquitting accused persons of offences C u/s 148 and 302/149 !PC-High Cowt appreciating evidence and reversing order of acquittal-Interference by appellate Cowt-Wheri-Held, if two reasonable conclusions can be reached on the basis of evidence, the appellate court should not disturb the order of acquittal-Supreme Coult (Enlargement of Criminal Appellate Jurisdiction) Act, 1970-Section 2.

D Criminal Trial-Natural Witness-Public Officer functioning in his office-Offence taking place in his office in his presence-Public Officer detailing prosecution case except naming the accused persons as miscreants-

Nothing on record to show that he was interested witness or inimically disposed towards the accused-No suggestion in cross examination that he E was deposing falsely-Held, he was the most natural and probable witness as the incident took place in his office.

Criminal T1ial-P01tisan witness-Evidence-Examination of-Held, evidence. of such witness has to be examined with utmost care and cau- F tion-Defence alleging certain prosecution witnesses to be partisan witness-Allegation that they belong to rival group -Presence of such witnesses in his office at the time of incident co"oborated by Public Officer-Public Officer specifically testifying the incident but not identifying the accused persons as miscreants-Alleged partisan witnesses identifying accused per- G sons-fi'.l.R. fully co"oborating the testimony of such witness-Held, they were the most natural and probable witnesses and their evidence cannot be disbelieved.

Criminal Procedure Code, 1973 :

H Section 154-FIR-Lodging of-Delay of 14 hours-Person after wit-

B. SUBBA RAO' PUBLIC PROSECUTOR, H.C. OF A.P. AT HYDERABAD 371

nessing incident hiding in the fields at night and lodging FIR in the early hours A of morning-Held, no avoidable delay and the F.l.R. was lodged at the earliest possible opportunity.

S.162-Report of Publi"c Officer regarding committing of offence received by police after commencement of investigation-Effect-Held, Report B would be statement recorded under S.162 Cr.P.C. and consequently, inadmissible in evidence.

Appellant (A-1) was the President of Telugu Desam Party of P.C.

Palli Mandalam and belonged to Village Marella and other appellants (A-2 to A-8) were his friends and associates. Deceased was leader of the Con- C gress Party of village Marella, and a number of criminal cases instituted by rival groups were pending against each other. February 27, 1988 was the date fixed for filing nomination papers for the Panchayatelection, and a large number of people came to the office of the Manda! Revenue Officer

(P.W.4) of P.C. Palli Mandalam on 26th February, 1988 for obtaining D extracts of voters' list and caste certificates which were required for filing the nomination papers. Deceased along with P.Ws. 1 to 3 came at or about 6 p.m. to the office of P.W.4 for the same purpose. While they were sitting in the office of P.W.4, A-1 came and requested P.W.4 to visit Pothavaram village to verify the voters' lists. The deceased however insisted that P.W.4 could not leave the office without issuing the voters' list and caste certifi- E cates sought by him. A-1 then left the office of P.W.4 saying he would come back within half an hour. Sometime at or about 630 p.m., the appellants rushed into the ollice of P.W.4 armed with deadly weapons and started beating the deceased. A-1 dealt a blow with an axe on his neck, A-2 also beat him with an axe on his right forearm and head and thereafter, the F other appellants stabbed the deceased indiscriminately with' knives which resulted in his instantaneous death. Upon witnessing the incident, P.Ws. 1 to 4 ran away for fear of their lives and on the following morning at or about 830 a.m., P.Ws.1 and 3 submitted a written report of the incident to the Police which was registered as F.1.R. by the Police. Post-mortem examination of the deceased revealed 45 injuries on the person of the G deceased including 40 incised wounds and the post-mortem certificate indicated that the deceased died due to shocks and hemorrhage as a result of the injuries. After completion of investigation, a charge-sheet under Section 148 and 302/149 of the Indian Penal Code was filed against the accused. P.Ws.1 to 4 were examined as eye-witnesses by the prosecution.

A The defence of the accused before the trial court was that they were

innocent and were falsely implicated due to political rivalry. The fact that the incident took place inside the office of P.W.4 was not challenged. The trial court acquitted the appellants on the ground that P.Ws. 1 to 3 were partisan, interested and procured witnesses; that the non-seizure of the hurricane lamp, with the light or which the eye witnesses claimed to have seen the incident, clearly indicated that there was no such lamp and hence the story of identification by its light was untrue; that the earliest report sent by P.W.4 to the Police Station which could be the F.l.R. was not produced during trial and the other report was inadmissible in evidence as F.I.R. in view of the provisions of Section 162 Cr.P.C., besides some C other grounds. On appeal by the State, High Court reversed the order of acquittal by holding that the reasoning of the trial Court was perverse, and on discussion of the evidence held that the prosecution had succeeded in proving its case beyond all reasonable doubts and convicted the appellants under Sections 148 and 302/149 I.P.C. Against the order of conviction by D the High Court, appellants have filed the present appeal under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 read with Section 379 of the Code of Criminal Procedure, 1973 in this court.

The contentions of the appellant were that since the trial court E detailed and appraised the entire evidence and gave cogent reasons for acquitting the appellants, the High Court was not justified in upsetting the same merely because another view of the evidence could be taken; that the statement of P.W.4 recorded by Magistrate under Section 164 Cr.P.C. contradicted his statement in court that PW's 1 to 3 were present in his F office at the time of incident; that the unusual delay of 14 hours in lodging the F.l.R. clearly indicated that P.Ws.1and3 concocted a story to implicate the appellants, who admittedly were their political rivals; and that though P.Ws. 1 to 3 claimed to have seen A-1 to be one of the assailants, P.W.4, who spoke of A-l's earlier presence in his office, did not mention in his testimony that A-1 was one of the miscreants.

Dismissing the appeal, the Court

HELD: 1. If the finding given by the trial court is found to be based on a reasonable view of the evidence, the impugned judgement has got to H be set aside, for law is now well settled that if two reasonable conclusions

B. SUBBA RAOv. PUBLIC PROSEClITOR, H.C. OF A.P. AT HYDERABAD 373

can be reached on the basis of the evidence, the appellate Court should A not disturb the order of acquittal. If, however, it is found that the finding of acquittal is manifestly wrong leading to miscarriage of justice • as has been found by the High Court - the convictions of the appellants have got to be upheld. [379-D-E]

2. P.W.4 detailed the prosecution case except that he did not name B any of the appellants as the miscreants. There is nothing on record to show that he was interested in the cause of the prosecution or inimically deposed towards appellants. It was not even suggested to him in cross examination that he was deposing falsely. It cannot be gainsaid also that he was the most natural and probable witness as the incident took place in his ollice. C

[379-F-G]

3. The statement of P.W.4 recorded under Section 164 Cr.P.C. does not in any way negative the presence of P.Ws. 1 to 3 in his ollice at the material time because the statement only indicates that P.Ws. 1 and 2 were not in his office at the time by which the incident was already over, and D that it does not materially affect the sworn testimony of P.W.4 that P.Ws. 1 to 3 were present when the incident took place. [380-E-F]

.4. The comment of the trial Court that non-seizure of the hurricane lamp from the office of P.W.4 materially affected the prosecution case is E baseless. At the material time P.W.4 was engaged in issuing copies of voters' lists and caste certificates and it can be legitimately inferred that there would be some source of light to enable him to perform his job, which enabled the eye-witnesses to identify the accused persons. [380-G-H]

5. The Report sent by P.W.4 was received by the police only after F investigation was taken up. The report sent by P.W.4 would be a statement recorded under Section 162 Cr.P.C. and consequently-it could not be admitted in evidence. Even otherwise, suppression of the report would not have helped the prosecution in any away. (382-B-D]

6. The evidence of P.W.4 clearly shows that P.Ws. 1 to 3 were present G in his office at the material time and the evidence of P.Ws. 1 to 3 is fully supported by P.W.4 and the F.l.R. It must be said that they were the most natural and probable witnesses to the incident. However, their evidence has to be examined with utmost care and caution as they belong to the rival group of the appellants and, hence, are partisan witnesses. (382-F -G] H

7. There was no avoidable delay in lodging the F.l.R. because having seen the ghastly murder being committed by their rivals, it was too much to expect P.Ws.1 and 3 to rush to the police station, for reasonable apprehension to their lives in the event of their taking such a ste.p could not be excluded and for that purpose P.Ws. 1 and 3 took shelter in the fields in the darkness, and proceeded to the police station in the early hours of the B following day. On the contrary, the F.l.R. was lodged at the earliest possible opportunity. [383-E-F]

8. P.W.4 did not name A-1 and for that matter any of the miscreants so that it could not be said that he was supporting any party. There is, C therefore, no reason to disbelieve the evidence of P.Ws. 1 to 3 that A-1, the leader of the group, started the assault followed by other appellants.

[384-B]

9. Having carefully gone through the evidence of the four eye witnesses, the F.I.R. and the medical evidence which fully corroborates the D ocular version, it is held that the prosecution has been able to prove its case

beyor; d all reasonable doubts. [385-D-E]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 462 of 1993.

E From the Judgment and Order dated 31.12.92 of the Andhra Pradesh High Court in Crl. A. No. 256 of 1991.

U.R. Lalit, Ms. Sudha Gupta and B.K. Rao for the Appellants.

Guntur Prabhakar for the Respondent.

F The Judgment of the Court was delivered by

MUKHERJEE, J. This appeal under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 read with Section 379 of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated December 31, 1992, rendered by the G Andhra Pradesh High Court in Criminal Appeal No. 256 of 1991 whereby it reversed the order of acquittal recorded in favour of the seven appellants herein by the Sessions Judge, Ongole in respect of charges under Sections 148 and 302/149 IPC and convicted them thereunder. The gravamen of the charges was that on February 26, 1988 at or about 6.30 P.M. the appellants H (who were arrayed as A-1, A-2 and A-4 to A-8 respectively in the trial

B. SUBBARAO v. PUBLIC PROSEC\JfOR, H.C. OF AP. AT HYDERABAD [MUKHERJEE, J.] 375

Court and hereinafter will be so referred to) along with A-3 (who died A during the pendency of the trial), formed an unlawful assembly in the office of the Manda! Revenue Officer, Peda Cherlopalli ('P.C. Palli' for short) village armed with deadly weapons with the common object of committing the murder of Nalluri Thirupathaiah of village Marella and in furtherance of that common object did commit his murder. The charges were based on B the following prosecution case :

2(a) A-1 to A-5, A-6 to A-7 and A-8 were residents of villages Marella, Peda Alavalapadu and Gudevaripalem respectively. A-1 was the President of Telugu Desam Party of P.C. Palli Mandalam and A-2 to A-8 were his friends and associates. The deceased, Tirupathayya (P.W.1) and C Brahmayya (P.W.2) were residents of Marella Village whereas Gangayya (P.W.3) was a resident of Pothavaram village. Both these villages were within the jurisdiction of P.C. Palli Mandalam. Suryanarayan Rao (P.W.4) was the Manda! Revenue Officer of P.C. Palli Mandalam at the material time.

(b) Since 1984, two rival political groups were functioning in Marella village, one led by A-1 and the other by the deceased; and a number of criminal cases instituted by the groups against each other were pending. In February 1987, elections were held there for the Manda! Praja Parishad in which wife of A-1 was elected the President of the Parishad while the E deceased was elected as the President of 'Single Window Society' of P.C.

Palli Mandalam.

(c) In the following year, i.e. 1988, February 27, was fixed as the date for filing nomination papers for the panchayat election. Some of the F candidates for such election were to file, along with their nomination papers, extracts of voters' list and their caste certificates. As such, on February 26, 1988 a number of people came to the office of P.W.4 to obtain those documents. One of them was A-1, who approached P.W. 4 for caste certificate and extracts of voters' list for his party members. Following him G came the deceased, P.W.1, P.W. 2 and P.W. 3 at or about 6 P.M. with a similar request. While they were sitting in the office of P.W. 4, A-1, who had left his (P.W. 4's) office in the meantime, came back and requested P .W. 4 to visit Pothavaram village to consider the inclusion of about 40 persons, who were his followers, as voters. The deceased however insisted that P.W. 4 could not leave the office without issuing the voters' lists and H

A caste certificates asked for by him. A-1 then left the office saying he would come back within half-an-hour and asked P.W. 4 to complete his job in the meantime.

(d) Sometime later (at or about 6.30 P.M.) the seven appellants along B with A-3 rushed into the office of P.W. 4 armed with deadly weapons and started beating the deceased. While A-1 beat him with an axe on his neck, A-2 beat him with a similar weapon on his right forearm and head.

Thereafter the others stabbed the deceased indiscriminately with knives resulting in his irlstantaneous death. Then they fled away in a jeep and a car. c

(e) On the following morning P.W. 1 went to Kanigiri Police Station at or about 8.30 A.M. and submitted a written report of the incident (Ex.P-1) to S.I. Sankara Reddy (P.W. 10). On that report P.W. 10 registered a case (Crime No. 26/88) and sent copies of the report to all D concerned. On receipt of a copy :it the report Srihari Rao, Inspector of

Police, Kanigiri (P.W. 11) left for Kanigiri at 9. A.M. He visited the scene of offence, prepared observation report (Ex. P-2) in the presence of Kesavarao (P.W. 6) and other mediators, prepared rough sketch of the scene of offence (Ex. P.15) and seized some articles (M.O. 4 to 10) under E a seizure list (Ex. P-2). P.W. 11 also conducted inquest over the dead body of the deceased in presence of P.Ws. 1, 2 and 3 and others and then sent the corpse for post-mortem examination.

(f) Dr. Rammohana Reddy (P.W.7) Civil Assistant Surgeon, Government Hospital, Kanigiri, conducted the post-mortem examination on Fj!bruary 28, 1988 and found 45 injuries on the person of the deceased including 40 incised wounds. He issued a post-mortem certificate (Ex. P-9)

opining that the deceased died due to shock and haemorrhage as a result of the injuries about 36 hours prior to the post-mortem examination.

(g) In course of investigation P.W. 11 seized a jeep bearing No.

AAN-6152 on February 29, 1988 from the garage of one S. Prasad Rao.

He also seized a car bearing registration No. APN-7953 on the same day at 8.00 P.M. in the presence of G. Ramesh, driver of the said car. On March 7, 1988, P.W. 11 arrested A-8 and on March 31, 1988, A-2, A-4 to H A-6. A-2, A-4 to A-6 made statements (Ex. P-4 to P-7 respectively) before

B. SUBBARAO 'PUBLIC PROSECUTOR, H.C. OF AP. ATHYDE~AD [MUKHERJEE, l.J 377

P.W. 11 pursuant to which he seized two battle axes and two knives (M.Os. A 11to14 respectively) under a Panchnama (Ex. P-8) in the presence of P.W. 6 and another wintess. After completion of investigation, successor of P.W. 11 filed the charge-sheet.

3. The defence of the appellants was that they were innocent and were falsely implicated due to political rivalry. A-7 took a further defence B of alibi and contended that at the material time he was working as Village Assistant in Chennupalli village, which was far off from the place of the incident.

4. In support of their respective cases, the prosecution examined C eleven witnesses of whom P.Ws. 1 to 4 figured as eye witnesses A- 7 examined one witness (D.W.1) and exhibited some documents to prove his plea of alibi.

5. On going through the judgment of the trial Court we find that it put forth the following reasons for acquitting the appellants : D

(9 P.Ws. 1 to 3 were partisan, interested and procured witnesses;

(ii) the non-seizure of the hurricane lamp, which was said to be burning at the time of the incident and with the light of which the eye-witnesses claimed to have seen the incident, by the police E during investigation clearly indicated that there was no such lamp and hence story of identification by its light was untrue ..

(iii) the earliest report that was sent byP.W. 4 to the Police Station which could be the F.l.R. was not produced during trial; and, Exhibit P-1 which was brought into existence during investigation of the case could not be legally admissible as F.I.R. in view of the provisions of Section 162 Cr. P.C.;

(iv) the non-examination of the (i) jeep driver in which the accused persons allegedly fled away, (ii) the village servant through whom G P.W. 4 claimed to have sent his report to the Police Station and

(iii) other villagers, who lived in and around the office of P.W.4, raised an adverse presumption against the prosecution;

(v) the prosecution case suffered from the same infirmity also for non-examination of the fair price shop dealer, who according to it H

(the prosecution) was present just prior to the commission of the offence in the office of P.W. 4; and

(vi) the alleged confessional statements of some of the appellants were deliberately concocted and, therefore, no reliance could be placed on the alleged recovery of weapons of offence pursuant thereto.

6. In setting aside the order of acquittal, the High Court first demonstrated that each of the above. reasons was perverse and then, on discussion of the evidence held, that the prosecution succeeded in proving C its case beyond all reasonable doubts and that the plea of alibi raised by A-7 was without any basis whatsoever.

7. We have heard Mr. Lalit and Mr. G. Prabhakar, the learned counsel for the appellants and respondent respectively and with their assistance gone through the record. Mr. Lalit submitted that having regard D to the fact that the trial Court detailed and appraised the entire evidence and gave cogent grounds for acquitting the appellants the High Court was not justified in upsetting the same merely because another view of the . evidence could be taken. In support of his above contention, Mr. Lalit took us through the findings recorded by the trial Court to impress upon us that they were the outcome of a proper appreciation of the evidence.

 8. That in the evening of February 26, 1988, the deceased met with a homicidal death in the office of PW 4 stands established by overwhelming evidence on record:We need not however detail or discuss the evidence on this point for both Courts below recorded concurrent findings in this regard and those findings were not challenged before µs. Since, however, F the findings of the trial Court in this regard have an important bearing on

its other findings we extract the. same :

"PWs. 1 to 3 stated. that all the accused entered into the office Room of P. W 4 and attacked the deceased with axes and knives. P. W 4 who is the Manda/ Revenue Officer sitting in front of the deceased, though did not implicate tltese accused, specifically testified, that then ( 10) persons anned with iro11 rods attacked the deceased. So, regardi11g the atack on the deceased by the assailants with deadly weapons in the Office Room of P. W 4, is proved, Admittedly, the deceased died, in the Office Room of P.W. 4, at Peda Cherlopalli. peda Cherlopalli will herein after called a~ 'P.C. PALLI'. The evidence

B. SUBBARAO,. PUBLIC PROSECUTOR, H.C. OF A.P. AT HYDERABAD [MUKHERJEE, J.) 379

of PW 6 coupled with Ex. P3 inquest report would show, that the A deceased had 'homicidal death';. In Column -15 of Ex. P3 Inquest report, the cause of death of the deceased is mentioned, as 'HOMICIDAL'. The evidence of P.W.7 (Doctor) who.conducted the post mortem examination over the dead body of the deceased,·· and who issued Ex. P9 post-mortem certificate would go to show, B that the deceased had as many as 45 (forty-five) external injuries, and opined, that the deceased would appear to have died of shock and haemorrhage, due to multiple injuries: The date of incident and the place of incident, and the factum of the death of the deceased in the Officer Room of P.W. 4, instantaneously, are undisputed.".

(emphasis supplied)

9. The next and the crucial question that falls for our consideration

is whether the appellants caused the above death in the manner alleged by D the prosecution. If the answer given by the trial Court to the above question is found to be based on a reasonable view of the evidence the impugned judgment has got to be set aside, for law is now well settled that if two reasonable conclusions can be reached on the basis of the evidence, the appellate Court should not disturb the order of acquittal. If, however, it is found that the finding of acquittal is manifestly wrong leading to miscar- E riage of justice - as has been found by the High Court - the convictions of the appellants have got to be upheld. Keeping in view the above principles we now proceed to consider evidence of the four eye wi.tnesses, namely, P.Ws. 1 to 4. Since the incident took place in the office of P.W. 4 we first take up his evidence for discussion.

10. P.W. 4 detailed the prosecution case, as narrated earlier, except that he did not name any of the appellants as the miscreants. There is nothing on record to show that he was interested in the cause of the prosecution or inimically disposed towards appellants. Indeed,· it was not G even suggested to him in cross examination that he was deposing falsely.

It can not be gainsaid also that he was the most natural and probable witness as the Incident took place in his office. His evidence clearly establishes that about 10 miscreants entered inside his office and one of them dealt a blow on the head of the deceased, who was sitting in front of him, with an iron instrument. He further testified that when he saw one of H

A the assailants raising his hand to give another blow to the deceased he ran away towards the field to save himself. In cross examination he stated that one Fair Price Shop dealer obtained a released order for palmolive oil at 6.30 P .M. Culling his evidence we get that the incident took place between 6.30 and 7.00. P.M. and at that time P.Ws. 1 to 3 were also waiting in his B room. Besides, A-1 was also in his room sometime before the incident but left the room saying that he would be back within half an hour. As noticed earlier, the trial Court disbelieved the evidence of P.Ws. 1 to 3 on the ground that they did not see the occurrence, but due to enmity with the party of the deceased concocted a false story. The unimpeachable evidence of PW. 4 that P.Ws. 1 to 3 were present at the material time clearly shows C that the above finding of the trial Court is patently wrong. While on this point we may also profitably refer to the earlier quoted passage from the judgment of the trial Court where, besides other evidence, it relied upon the evidence of P .W s. 1 to 3 to conclude that the incident took place in the office of P.W. 4 Mr. Lalit, however, drew out attention to the statement D of P.W. 4 recorded by a Magistrate under Section 164 Cr. P.C. wherein he had stated that by 7.P.M. on the date of offence all the persons left his office except the deceased and P.W. 3, and contended that the above statement contradicted his statement in Court that all the three witnesses (P.Ws 1 to 3) were present. According to Mr. Lalit P.W. 4's earlier statement negatived the presence of P.Ws. 1 and 2 at the material time.

E We do not find any substance in this contention; fustly because the above statement recorded under Section 164 Cr.P.C. only indicates that P.Ws. 1 and 2 were not in his office at 7. P .M. (by which time the incident was already over) and, secondly because, the earlier statement did not materially affect the sworn testimony of P.W. 4 that P.Ws 1to3 were present when F the incident took place.

11. As regards the comment of the trial Court that the nonseizure of the hurricane lamp from the office of P.W. 4 materially affected the prosecution case, we can only say that the same is baseless. Undoubtedly, at the material time P.W. 4 was engaged in issuing copies of voters' lists G and caste certificates and if by then, darkness had set in, it can be legitimately inferred (leaving aside the positive evidence of P.W. 4 in this regard) that there would be some source of light to enable him to perform his job. In that context, it was immaterial whether the police seized the hurricane lamp, which according to P.W. 4 was burning inside the office H as it was not electrified.

B. SUBBARAO v. PUBLIC PROSECUTOR, H.C. OF AP. AT HYDERABAD [MUKHERJEE, J.] 381

12. Coming now to the criticism of the trial Court that the failure of A the prosecution to produce the report that was sent by P.W. 4 to the police station in that very night - which according to it was the F.I.R. made its case suspect, we may first refer to the evidence of P.W. 4 on this point. He testified that after the incident he ran to the field and thereafter went to the house of the village servant at 11 P.M. and gave a written report to him B with a direction to hand over the same to Kanigiri Police Station. Relying on the above testimony the trial Court held that that report sent to the police station was the first in point of time and, therefore, the report that was subsequently given to the police station by P.W. 1 (Ex.P-1) would be inadmissible in evidence as F.I.R. in view of the provisions of Section 162 Cr. P.C. This aspect of the matter was dealt with by the High Court in C extenso and the finding of the trial Court was taken exception to, with the following comments :

"The learned Judge has extracted the evidence of P.W. 4 to support his contention that Ex. P-1 is hit by Section 162 of the Code and D infact there was an earlier report given by P.W.4 on record. But the learned Judge has not correctly quoted the relevant evidence of P.W. 4 and only relied upon part of it. It is true that P.W. 4 in his evidence stated that he sent a report on the night of 26.2.1988 at about 11 P.M. through the village servant to Police Station, Kanigiri. Regarding the receipt of Ex. P.l, the evidence of P.W. E 10, S.I. of Police, Kanigiri, during the relevant period, reads as follows:

'Prior to P.W. 1 giving Ex. P-1 to me, I had no information about this crime. None of the persons acquainted with this crime, ap- F peared before me prior to Ex.P.l... ..... After registering this crime and I issued Ex. P-14 F.I.R. I received a report from P.W. 4 through village servant'.

This statement of P.W.10 clearly shows that Ex. P-1 was the report received by P.W. 10 at the earlier point of time regarding this crime G and consequently P.W. 10 registered the same as F.I.R. and before P.W. 10 receiving Ex. P-1, they did not have any information regarding this crime. His evidence is also specific to show that after P.W. 10 received Ex. P-1 and after P.W. 10 issued Ex. P-14 F.I.R. basing on Ex.P-1, he received another report from P.W. 4 through H

village servant and probably he has not taken any action thereon since the same was hit by Section 162 of the Code. Thus what was received by P.W. 10 regarding this crime at the earliest point of time was only Ex. P-1 which P.W. 10 correctly registered as F.I.R. and set the lw in motion."

13. Apart from the above comments of the High Court, with which we are in complete agreement, we find that the evidence of P.W. 10 clearly shows that the report sentby P.W. 4, through the village servant, was received by him only after investigation was taken up. In other words, the report sent by P.W. 4 would be a statement recorded under Section 162 Cr.P.C. and C consequently it_ could not be admitted in evidence. This aspect of the niatter can be viewed from another angle also. Having regard to the fact

that' P .W. 4 did not name any of the assailants; suppression of the report sent by him to the Investigating Agency did not and would not have helped _-the prosecution in any way. In other words, the prosecution would not have D been benefited in any way by suppressing the report that was made by P.W.

4, more so when~ the fact that the incident took place inside the office of

P.W: 4 in the evening of February 26; 1988 was not challenged by the • defence. Judged in that perspective even if that report was produced and treated s F.I.R. the prosecution case would not have been impaired in any way much less on the ground canvassed by the trial Court.

14. That brings us to the evidence of P.Ws 1, 2 and 3. All of them claimed to have accompanied the deceased who, according to them, was the leader of the Congress. party of village Marella, to the office of P .W. 4 on the fateful evening to obtain caste certificates and copies of voters' list F of Marella and Pothavaram villages so as to enable them to file nomination on the next day for the Gram Panchayat elections. As their such claim is fully supported by P.W. 4, whom we have no reason whatsoever to disqelieve, it must be said that they were the most natural and probable witnesses to the incident. However, their evidence has to be examined with utmost care and caution as they belong to the rival group of the appellants G and, hence, are partisan witnesses. In narrating the incident they stated that

while four of them were inside the office of P.W.4, A-1 came there and asked_ P.W. 4 to go to Pothavaram to verify the voters' lists. The deceased, . however, insisted that c; mly after furnishing the lists and certificates for which they had come, P.W. 4_ could go to pothavaram. A-1 then went out H of the room. Sometime later all the appellants and A-3 entered the room

B. SUBBARAO v. PUBLIC PROSECUTOR, H.C. OF AP. AT HYDERABAD [MUKHERJEE, J.) 383

of P:W.4, and A-1 dealt two successive blows,, one on the head and another A on the neck of the deceq.sed. A-2 then beat him with an axe on the right forearm and the others started stabbing the deceased with Knives. At that stage all three ofthem ran away for fear of their lives. While P.Ws. 1 and 3 first went towards the road and then the fieids, P.W. 2 ran to his village.

P.Ws. 1 and 3 next stated that on the following morning they reached B Kanigiri by foot, got a report of the incident written by a person of Cherlopalli whom they met there (Kanigiri) and then went to the police station at or about 8.30 A.M. and handed over the report (Ex.P-1) to S.I.

Sankara Reddy (P.W.10). It is their further evidence that accompanied by the Circle Inspector of Police (P.W.11) they came to the scene of occurrence and in their presence he (P.W.11) held the inquest.

.15. We have carefully gone through the evidence of the above three witnesses and found that except some minor contradictions, the defence could not elicit any answer to discredit them. Besides, the F.I.R. fully corroborated the testimonies of P.Ws. 1 and 3. It was, however, contended D by Mr. Lalit that the unusual delay of 14 hours in lodging the F.l.R. clearly indicated that P.Ws. 1 and 3 concocted a story to implicate the appellants, who admittedly were their political rivals. We do not find any substance in the above contention of Mr. Lalit. The evidence of P.Ws. 1 and 3 clearly indicates that they spent the night in the fields,. then walked the entire distance to Kanigiri-which is 10 miles - got the report written there and E lodged it at the police station at 8.30 A.M. Having seen the ghastly murder being committed by their rivals, it was too much to expect of P.Ws. 1 and 3 to rush to the police station, for reasonable apprehension to their lives in the event of their taking such a step could not be excluded. Obviously, for that purpose P .W s. 1 and 3 took shelter in the fields in the darkness F and proceeded to the police station in the small hours of the following day.

We are, therefore, of the opinion that there was no avoidable delay in lodging the F.l.R. On the contrary, in our view, it was lodged at the earliest possible opportunity.

16. Another submission that was made by Mr. Lalit was that thnugh G P.Ws. 1 to 3 claimed to have seen A-1 to be one of the assailants, P.W. 4, who spoke of A-l's earlier presence in his office, did not mention that A-1

V"•S olie of the miscreants. This contention of Mr. Lalit is also unmerited.

From the sequence of events we get that the trouble originated when A-1, who was the leader of the appellants' group, requested P.W. 4 to visit H

A Pothavaram village while the deceased insisted that the voters' list and caste certificates sought for by him should be handed over before A-l's _request could be entertained. Immediately thereafter A-1 left the place obviously to call his associates and to come fully prepared with arms. It seems to us that lest it be said that he was supporting either of the parties, P.W. 4 did not name A-1 and for that matter any of the miscreants. We B therefore find no reason to disbelieve the evidence of P.Ws. 1 to 3 that A-1, the leader of the group, started the assault, followed by the other appellants.

17. As earlier noticed, the trial Court discarded the prosecution case C also for non-examination of the driver of the jeep in which the appellants fled away, the village servant and the persons present nearby, more particularly, the Fair Price Shop dealer. The High Court dealt with this aspect of the matter in details and made the following observations with which we are in agreement :

"It is the case of the prosecution that the accused sped away in a jeep after the offence. It is the submission of the learned counsel for the accused that nonexamination of the driver of the said jeep speaks against the prosecution. The jeep driver is not an eye witness to the crime and consequently he could not have spoken anything crime proper. At the most he would have stated that the accused had travelled in his jeep soon after the offence.

That evidence would have been an additional piece of evidence to strengthen the prosecution case. But the question which we have to consider is whether the trial Judge in assuming that the nonexamination of the jeep driver had the effect of displacing the evidence of eye witnesses about what they actually witnessed. We are of the opinion that the trial Judge was wrong in his assumption that the jeep driver was a material witness. Consequently, inference adverse to the prosecution could not have been drawn from the non-examination of the driver of the jeep.

P.Ws. 1 to 4 in their evidence stated that while P.Ws. 1 to 3 and the deceased came to the office of P.W. 4 the fair price shop dealer and some persons were coming and going to the room of P.W. 4, but there is no evidence to show that those persons were present when the occurrence took place. According to the prosecution, P.Ws. 1 to 4 along were present when the offence took place

....

B. SUBBARAO v. PUBLIC PROSECUTOR, H.C. OF A.P. AT HYDERABAD (MUKHERJEE, l.] 385

and witnessed the occurrence. Neither the fair price shop dealer A nor anybody else, who visited the office of P.W. 4 earlier were present at the time of the offence. In view of that, non-examination of the fair price shop dealer or others who visited the office of P.W. 4 in the evening hours on the fateful day, is of no consequence and inference adverse to the prosecution cannot be .drawn from B their non-examination.

18. As regards the non-examination of the village servant to whom, P.W. 4 handed over a written report of the incident for onward transmission to the police station, we may reiterate that the report did reach the hands of the Police, but only after the F.I.R. was lodged and, therefore, C there was no need for the prosecution to examine him.

19. So far as the alibi of A-7 is concerned, both the Courts below dealt with the evidence given in support thereof at length and found the same unacceptable. Indeed, Mr. Lalit also did not advert to this aspect of the matter.

20. Having carefully gone through the evidence of the four eye witnesses, the F.I.R. and the medical evidence which fully corroborates the ocular version, we are of the opinion that the prosecution has been able to prove its case beyond all reasonable doubts. We need not, therefore, go into the question whether the finding of the trial Court regarding alleged E recovery of weapons pursuant to the statements of some of the appellants is perverse or not.

21. For the foregoing discussion, we do not find any merit in this appeal and dismiss the same.

A.KT.

Appeal dismissed.