SHEELAM RAMESH AND ANR.

A v

STATE OF ANDHRA PRADESH

OCTOBER 12, 1999

[G.T. NANAVATI AND S.N. PHUKAN, JJ.] B

Criminal Trial:

Murde~Identification of accused-Source of light-Sufficiency of-Accused members of Peoples War Group firing at one of the ex-members C of the said Groui:r-Accused already known to the eye witnesses-Eye witnesses deposing that they could identify the accused due to street lights and lights coming from the neighbouring shops-Held, there was sufficient light for identification of accused.

Criminal Procedure Code, 197~Section 154-FlR-Filing of-Mur- D der-l'olice Station at a short distance-FIR-Delay in lodging -Effect of-Accused members of PWG am1ed with weapons firing at one of three ex-members of the said Group-One of the eye witnesses rushing to the police station at a distance-Injured taken to hospital where he succumbed to his injuries 55 minutes after the incident-Inf onnant returning to police station E and logding FIR after 5 minutes-Held, it is natural human conduct for an inf onnant to run first to the hospital and ensure that injured gets medical heli:r-Thus, there is no delay in lodging the FIR-Penal Code, 1860, S.302 r/w S.34-Anns Act, 1959-S.27-Tmorist and Disruptive Activities (Prevention) Act, 1987 Ss.3(2) (i) (ii) and 5.

Penal Code, 1860-Ss.302 and 34-Murdeommon intention-/'rea"anged plan to cause death-Use of fire anns established-Held, conviction sustainable.

Evidence Act, 1872---Witnesses-Examination of eye witnesseo in- G dependent witnesses examined-Effect of-Held, non-examination of independent witnesses, cannot be a ground to discard the eye witness---Conviction

can be based on sole evidence of a witness if it inspires confidence-Courts concerned with quality and not quantity of evidence.

Accused-appellants were prosecuted for offences under S.302 IPC H

A read with S.34 IPC, S.27 of the Arms Act, 1959 and Ss.3(2) (i) (ii) and 5 of Terrorist and Disruptive Activities (Prevention) Act, 1987. According to the prosecution, accusedappellants were members of Peoples War Group (PWG). According to the prosecution, on the fateful day, while 'R' PWs 1 and 2, all ex-members of PWG were siting in front of a Hair Cutting B Saloon, accused appellants armed with pistol and tamanchas came and fired at 'R'. PW-1 rushed to the police station at a distance, brought the police and took the injured to the hospital. 'R' succumbed to his injuries in the hospital 55 minutes after the incident. Thereafter, PW! returned to the police station and lodged FIR after 5 minutes. Trial Court relying upon the evidence of PWs 1 to 4 convicted and sentenced the accused.

C Hence the present appeal.

On behalf of accused-appellants it was contended that there was a delay of one hour in filing the FIR though the police station was at a distance of 200 ft. from the place of occurrence; that there was no suffi- D dent light for identification of accused and that no independent witnesses, though present at the time of occurrence were examined by the prosecution.

Dismissing the appeal, the Court

E HELD : 1. There was no delay in filing the FIR. The evidence shows that the offence took place at 7 .00 p.m. and PW 1 rushed to the police station and came back to the place of occurrence with police. It was natural human conduct for the informant PW 1 to run towards the police station as the deceased had suffered injuries. His first duty, in addition to his safety, was to bring police to the place of occurrence and to ensure that medical help was F given to the deceased. He came back to the place of occurrence with police and the deceased was taken to the hospital where he succumbed to his injuries at 7.55 p.m. Immediately, thereafter, within 5 minutes PW 1 returned to the police station and lodged the formal FIR.

[593-D; E 594-A; BJ .

2. It cannot be accepted that there was no sufficient light for identification of the accused by PWs 1 and2. PWs 1 and2 were the ex-members of PWG and therefore, accused persons were known to them. In cross-examination of PW 1, it was brought out that he could identify the accused due to street lights and lights coming from the neighbouring shops. PW 2 has deposed that he knew the accused even before the incident and he was able to identify H them in the light. It is true that this fact was not stated by PW 2 in his

SHEELAM RAMESH v. STATE 591

statement under S.161 Cr. P.C. but only because of this omission, the identification cannot be discarded in view of clear evidence of PW 1. Further PWs 3 and 4, partners of Hair Cutting Saloon have clearly deposed before the Court that they could identify the accused persons as the street lights and the lights in the shops were burning. These two witnesses also identified the accused in the court. [594-C; D; EJ

3. The evidence on record establishes that accused came together armed with fire arms and fired from the pistol and c01mtry made gun.

Both pistol and the country made gun were used, is established from the empty cartridges recovered from the place of occurrence. The very fact that the accused came together to the place of occurrence with fire arms would prove that there was a pre-arranged plan amongst them to cause death. As there was participation of accused-appellants in furtherance of the common intention of causing death, conviction under S.302 IPC r/w S.34 IPC can be sustained. [595-B; C; DJ

4. There is nothing on evidence to show that there was any other eye D witness to the occurrence. Having examined all the eye witnesses even if other persons present nearby were not examined, the evidence of the eye witnesses cannot be discarded. Courts are concerned with quality and not with quantity of evidence and in a criminal trial, conviction can be based on the sole evidene of a witness if it inspires confidence. [596-A; BJ

CRIMINAL APPELLATE JURISDICTION: Criminal appeal No. 685 of 1999.

From the Judgment and Order dated 15.11.95 of the Designated Court, Karimnagar in Andhra Pradesh in Sessions Case No. 90 of 1994.

S.R. Bhat for the Appellants.

G. Prabhakar for the Respondent.

The Judgment of the Court was delivered by

PHUKAN, J. This appeal under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1989 (for short the TADA) is against the judgment and order of the learned Sessions Judge (Designated Court), Karimnagar, Andhra Pradesh. By the impugned judgment and order accused-appellants Sheelam Ramesh (A-2) and Samudrala @ Kum- H

A mari Mallesham @ Rajanna (A-3) were convicted under Section 302 IPC

read with Section 34 I.P.C., Section 27 of the Arms Act, 1959 and Sections 3(2)(i)(ii) and 5 of the TADA.

A2, A3 and another Bheemanna @ Bairi Ramchander (A-1) are members of CPI (ML) Peoples War Group (in short PWG). Deceased B Ramtenki Chandraiah, Manchikatla Shankar (PWl) and Thota Paul (PW2)

 were members of the said PWG but they severed their connections with the group since four years prior to occurrence and they were residing at Jagtial for their safety and security, away from their villages.

C On 30.01.1993 at about 07.00 p.m. deceased, PWs-1and2 were sitting as usual in front of Shri Venkateshwara Hair Cutting Saloon near the bus stand of Jagtial. Suddenly Al to A3 armed with pistol and tamanchas (country made gun) came and fired at the deceased. PWl escaped and ran to J agtial police station. Deceased-Ramtenki Chandraiah was hit by gun D fire and was injured. He was taken to the Government Hospital, J agtial where he succumbed to the injuries. Thereafter, accused went away from the place of occurrence on their cycles. PW2 went towards another side.

Subsequently, A2 and A3 were apprehended. After investigation, chargesheet was submitted under Sections 302, 307 read with 34 IPC, Section 7 of the Arms Act, 1959 and Sections 3 and 4 of the TADA. The case of Al E was separated as he was absconding. Eleven witnesses' were examined on behalf of the prosecution. Seized articles were produced and the court below found both accused - appellants guilty under the aforesaid section except Section 307 l.P.C. and convicted them accordingly.

F The Trial Court believe the evidence of eye-witnesses PW-1 to PW- 4 and came to the finding that PW-1 and PW-2 severed their connection with PWG about 4 years prior to the occurrence and they were in the hit list of the above group and this was the motive for causing death of the deceased: The Trial Court also accepted the prosecution version of the story that PW-1, 2 and the deceased who were in the hit list of PWG were G residing by the side of house of Deputy Superintendent of Police, at J agtial for their safety. Accepting the evidence of the prosecution, the Trial Court came to the finding that PW-1, PW-2 and deceased were in the habit of sitting at Sri Venkateshwara Hair Cutting Saloon. PW s 1 to 4 categorically deposed that all the three accused persons came and fired at deceased and H that evidence of PW-1 to PW-4 could not be shattered in cross-examination. Accepting the above evidence for the prosecution, the Trial Court A came to the finding that prosecution could prove the charge under Section 302 read with Section 34 l.P.C. against A2 and A3.

In view of the clear evidence of PW-1 to PW-4 that accused were in possession of fire arms and fired at the deceased, the Court held that the charge under Section 27 of the Arms Act has also been proved. •

The evidence of PW-1 to PW-4 that the accused persons were armed with fire arms and caused death of the deceased was sufficient to come to the conclusion that they did so to strike terror in the people of the area.

Accordingly, the Court held that charge under Section 3(2)(i)(ii) and Section 5 of TADA was proved by the prosecution.

Regarding the charge under Section 307 read with Section 34 I.P.C., the Trial Court held that in absence of statements by PW- 1 or PW-2 or any other eye witnesses that there was an attempt to cause death of PW-1

and PW-2, the charge could not be proved by the prosecution and accord- D ingly acquitted.

The first contention raised by the Counsel for the accusedappellants was that there was delay of one hour in filing the First Information Report though the Police Station was at the distance of 200 ft. from the place of occurrence. We find from the evidence that offence took place at 7 .00 p.m. and PW-1 rushed to the Police Station and came back to the place of occurrence with police. Deceased was taken in the rickshaw to the hospital.

PW-1 also went there. PW-2 has also deposed that after the incident, he came back to the place of occurrence and he, alongwith the police and PWl, took the deceased to the hospital.

Dr. Rao, PW-6 has deposed that on the date of occurrence, he examined the deceased at 7.45 p.m. PW-6 has clearly deposed that he found several injuries on the deceased and death was caused due to haemorrhage and shock from these injuries caused by fire arms. According

to PW-6, these injuries were sufficient to cause death in the ordinary course G of nature.

From the evidence of M. Maruthi, PW-8, the Head-Constable, we find that PW-1 came to the Police Station on the date of occurrence at 8.00 p.m., gave an oral statement which was recorded and treated as the FIR

~PD.

A It was natural human conduct for. the informant PWl (who was on the hit list) to run towards the Police Station as the deceased was hit by guns and suffered injuries. His first duty, in addition to his safety, was to bring police to the place of occurrence and to ensure that medical help be given to the deceased. He came back to the place of occurrence with police B anc! the deceased was taken to the hospital where he succumbed to the injuries at 7.55 p.m. Immediately thereafter, PWl returned to the Police Station and lodged the formal FIR. The doctor PW6 has deposed that the deceased died at 7.55 p.m. From the above evidence, we hold that there was no delay in filing the FIR. c The next contention is that there was no sufficient light for identification of the accused by PWl and PW2. PWl and PW2 were the members of PWG and therefore, accused persons were known to them. In cross-examination of PWl, it was brought out that he could identify the accused due to street light and lights coming from the neighbouring shops. PW2 D has deposed that he knew the accused even before the incident and he was able to identify them in the lights of the area. It is true that this fact was not stated by PW2 in his statement under Section 161 Cr. P.C. but only because of this omission, the identification cannot be discarded in view of the clear evidence of PWl. Rachakonda Rakaiaha, PW3 and Kandi Lakshman PW 4 who are partners of the hair cutting saloon have clearly E deposed before the Court that they could identify the accused persons as the street lights and the lights in the shops were burning. These two witnesses .!so identified A2 and A3 in the Court. Therefore, this submis-' sion of learned Counsel for the appellant has no force.

F The next point urged is that in view of the contradictions in the evidence of PWl and PW2 regarding the part played by accused A2 and A3, conviction is not sustainable. It is true that there are some contradictions regarding the part played by the accused A2 and A3.

PWl and PW2 have deposed before the Court that all the accused G persons came holding fire arms. According to PWl, accused Al was holding a pistol, A2 country made gun and A3 a bag and they fired from both the pistol and the country made gun at the deceased. In cross-examination, it has been brought out that according to these witnesses, Al placed his pistol on the chest of the deceased and fired it H and A2 fired from the country made gun. According to PW-2, Al came

inside and fired at the deceased and subsequently, A3 came and fired at the deceased with country made gun. PW3, owner of the hair cutting saloon deposed before the Court that three people came on the cycle with fire arms and fired at the deceased and went away. PW4 deposed that two or three people came and fired at the deceased.

The accused persons have been charged under Section 302 I.P.C. read with Section 34 I.P.C. From the evidence on record, it is established that they came together armed with fire arms and Al fired from the pistol A2 from the country made gun. From the seizure memo, we find that from the place of occurrence, two 9 mm empty cartridges and one 12 bore empty cartridge were recovered. From the evidence on record, we find that Al was holding a pistol and other accused were carrying country made gun.

Both pistol and the country made gun were used and this fact is established from the empty cartridges recovered from the place of occurrence.

The very fact that the accused Al to A3 came together to the place D of occurrence with fire arms would prove that there was a pre-arranged plan amongst them to cause death. As there was participation of A2 and A3 in furtherance of the common intention of causing death, conviction under Section 302 l.P.C. read with Section 34 l.P.C. can be sustained.

Therefore, the contention of the learned Counsel for the appellants has no E force.

Another fact to which our attention has been drawn is the recovery of the material objects from the place of occurrence after 12 hours though the distance from the Police Station was 200 ft. From the evidence of the F Investigating Officer, Shri Reddy, P.W. 7, we find that after arranging an escort to guard the dead body of the deceased and the scene of occurrence, he went in search of the accused along with his staff in and around Jagtial town for the whole night and next morning at 6.00 a.m., he went to the hospital and till 8.00 a.m., he was there. Thereafter, he came to the place of occurrence and collected the material objects . .It is quite natural for the G Police Officer to go in search of the accused person. In addition, he took the precaution of keeping a guard at the place of occurrence. So, this delay has been duly explained and adequate measures were taken so that the place of occurrence could not be disturbed. Therefore, the prosecution cannot be faulted and the contention of the learned Counsel is rejected.

A According to learned Counsel for the accused-appellants, though PW3 has deposed that 10-15 persons were in the vicinity at the time of occurrence, no independent witness was examined by the prosecution.

There is nothing on evidence to show that there was any other eye-witness to the occurrence. Having examined all the eye-witnesses even if other B persons present nearby not examined, the evidence of the eye-witnesses cannot be discarded. Courts are concerned with quality and not with quantity of evidence and in a criminal trial, conviction can be based on the sole evidence of a witness if it inspires confidence.

From the reasons stated above, we find no merit in this appeal and C accordingly it is dismissed.

S.V.K.

Appeal dismissed.