WITH CRIMINAL APPEAL NOS. 336-337 of 1997 J U D G M E N T M.K. MUKHERJEE, J.
Six persons, namely, Kovvuri Surya Bhaskara Reddy, Tadi Venkata Reddy, Goluguri Adireddy, Kovvuri Surreddy @ Suryanarayana Reddy, Kovvuri Subbareddy and Sathi Satyanarayana Reddy (hereinafter referred to as A1 to A6 respectively) were indicted before the Sessions Judge, East Godavary Division at Rajahmundry for rioting, murder and other cognate offences. The trial ended in conviction of all of them under Sections 148 and 302 I.P.C. (simpliciter). Besides, A1 to A4 were convicted under Section 307 I.P.C. and A5 and A6 under Section 307/149 I.P.C. In appeals preferred by them the High Court set aside the convictions of A4 to A6 and acquitted them. As regards others, the High Court set aside their conviction under Section 148 I.P.C. and altered the conviction of A1 and A2 under Section 302 I.P.C. (simpliciter) to 302/34 I.P.C., conviction of A1 under Section 307 I.P.C. to 326 I.P.C. and conviction of A2 and A3 under Section 307 I.P.C. to 324 I.P.C. Assailing the judgment of the High Court A1 and A2 jointly filed one of these appeals (Criminal Appeal No. 343 of 1997) and the State of Andhra Pradesh in its turn filed the other two appeals (Criminal Appeal Nos. 336-337 of 1997) against the acquittal of A3 to A6 of the offers for which they were convicted by the trial Court. During pendency of these appeals A2 died and his appeal, therefore, stands abated. All the appeals have been heard together and this judgment will dispose of them.
2. Briefly stated, the prosecution case is an follows :-
(a) A1 to A6 are related to each other as also to P.W.1 (Kovvuri Srinivasa Reddi) and P.W.6 (Kovvuri Suryanarayana Reddi), the two sons of Buchi Reddi (the deceased). While A1 is the nephew of P.Ws.1 and 6, A2 is related to A1 through his wife. A4 is the brother of the deceased and A5 and A6 are the son and brother-in-law of A4 respectively. They are all residents of Machavaram. Since before the year 1984 there were disputes and differences between the two families over properties and a civil suit had been filed by A4 against Buchi Reddi over the right of passage of water through their land. A1 to A6 also entertained a grudge against P.W.1 as, according to them, father of Buchi Reddi had given him more properties than was due in his share.
(b) In the morning of July 31, 1992 P.W.1 accompanied by two day labourers, namely, P.W.3 (Sabbella Surreddi) and P.W.4 (Tadi Satyanarayana Reddi) went to their plantain garden, which was in front of their cattle shed, for weeding. While they were in the field Buchi Reddi came there at or about 4.30 P.M. to tend the cattle. A little later A1 to A6 came there armed with various weapons like knife, spear and axe. Reaching there A1 hacked Buchi Reddi with a knife. This was followed by an assault on him by A2 to A6 with their respective weapons resulting in his instantaneous death. Seeing the assault P.W.2 (Subbella Venkata Reddi) who was standing at a little distance started shouting. In the meantime, when P.W.1 had attempted to run away from the place out of fear, A1 aimed a blow on hi head with a knife. When he tried to ward off the blow it landed on hi left palm. A2 made a similar attempt with a spear on his neck which also he warded off causing injuries on his thumb and index finger. A3 also hacked him with a battle axe on his left thigh. On being so assaulted he fell down on the adjacent sugar field. Then P.Ws. 3 and 4 ran away from the field as also A1 to A6.
(c) P.W.2 gave first aid to P.W.1 by tying his Lungi on his left palm and then left for the village to inform P.W.5 (Tadi Satyanarayana Reddi), father-in-law of P.W.1. P.W.5 came there and, having found P.W.1 groaning and unconsciously, went back to the village to fetch a bullock- cart. In that car P.W.1 was taken to and admitted in the Government Hospital, Kakinada, where P.W.10 (Dr. K. Sudhakara Reddy) examined him and attended to his injuries.
(d) After regaining consciousness in the following morning P.W.1 narrated the incident to P.W. 11 (Md. Khasim), Head Constable foe Kakinada Town Police Station, who was present in the hospital. P.W. 11 reduced the statement in writing (Ext. P-11) and forwarded it to the Officer-in-Charge of Rayavaram police station, within whose jurisdiction the incident had taken place.
(e) On receipt of Ext. P-11, P.W.14 (K. Nookaraju), Head Constable of Rayavaram Police Station registered a case and P.W.15 (K. Veera Bhadrarao), the Circle Inspector of Police took up investigation. He went to the scene of offence at or about 2 P.M. and held inquest over the dead body of Buchi Reddi which was still lying there. He their forwarded the dead body to Government Hospital, Ramchandrapuram for Post- mortem examination.
(f) P.W.9 (Dr. D.D. Prasada Rao), Civil Asst. Surgeon of the hospital held the autopsy and found 18 external injuries as also some internal injuries.
(g) On completion of investigation PW. 15 submitted charge sheet in the case and in due course the case was committed to the Court or Session.
(3) To prove its case the prosecution examined 15 witnesses of whom P.Ws 1 to 4 figured as eye witnesses.
4. The appellants pleaded not guilty to the charges levelled against them and contended that they were falsely implicated due to family disputes. In their defence they examined seven witnesses to prove the following facts: D.W.1 (K, Satyam), Mandal Revenue Office, Rayavaram had addressed a letter (Ext. D.12) to the Station House Officer, Rayavaram Police Station on August 1, 1992 intimating that the incident had taken place on the pathway leading to Machavaram village (not near the cattle shed of the deceased as alleged by the prosecution); D.W.2 (Velagala Satyanarayana Reddy), owner of a rice mill at Machavaram and D.W.3 (Boda Suryarao), a clerk of that mill to prove that P.W.4's claim that he had seen the incident was false for he was working in the rice mill at that time. The attendance-cum-wage register (Ext. D-14) of the mill was exhibited by D.W.3 in corroboration of that fact; D.W.6 (V. Suryanarayana), an Assistant Labour Officer and D.W.7 (Ch. Kishan), a Factory Inspector had seen the above register and signed the same in token of its genuineness; and D.W.4 (Dr. V. Satyadev), Assistant Professor of Orthopaedics and D.W.5 (R. Pratap), an Anaesthetist, both of Government Hospital, Kakinada to prove that P.W.1 was conscious throughout the night between July 31 and August 1 and that he was in the operation table between the hours 7 A.M. to 10 A.M. on the following morning, (which necessarily meant that statement of P.W. 1 could have been recorded in the previous night but not on the following morning at 9.30 A.M., as was the prosecution case).
5. From the judgment of the trial Court, which runs through 120 pages, we find that after a detailed discussion of the entire evidence adduced by the parties in the light of the diverse arguments canvassed on their behalf to establish their respective cases, it held that the evidence of P.Ws. 1 to 4 was trustworthy and that the medical evidence fully corroborated their ocular version. The other reasons which weighed with it to accept the evidence of P.W.1 - and for that matter the prosecution case - were that the injuries found on his person by P.W.10 proved his presence at the time of the incident and that he lodged the F.I.R detailing the substratum of the prosecution case at the earliest available opportunity. In arriving at the above conclusions the trial Court observed that the entries in the hospital record on the basis of which D.Ws. 4 & 5 testified were wholly unreliable; that the evidence adduced by defence to prove that P.W.4 was working in the rice mill at the material time was unacceptable; and that the report (Ext. D-
12) sent by D.W.1 did not in any way discredit the prosecution version as regards the place of incident.
6. In disposing of the appeal in the manner indicated earlier the High Court concurred with the reasons canvassed by the trial Court for not placing any reliance on the evidence of the defence witnesses. Besides, it accepted the claim of P.Ws. 1 and 2 that they witnessed the incident. In spite thereof, the High Court found it unsafe to rely on their evidence so far as it sought to implicate A3 to A6 in the murder of Buchi Reddi principally on the ground that in the F.I.R, P.W.1 had not stated about the manner in which they assaulted the deceased though he had stated about the specific overt acts of A1 and A2 in the murder. According to the High Court, non-disclosure of such details led to the irresistible conclusion that either P.W.1 had not seen the participation of A3 to A6 in the attack or that he had improved his version while tendering evidence in the Court by attributing specific overt acts to A3 to A6 as well. So far as P.W.2 is concerned the High Court observed that though they were not persuaded to think that he was a planted witness and he would not have witnessed the occurrence at all, still then, it was not expected of him to see from a distance of about 60 feet as to the actual parts played by each of the accused.
7. The evidence of P.Ws. 3 and 4 was disbelieved by the High Court firstly on the ground that in the F.I.R. P.W.1 stated only in general terms that coolies were working but he did not give the names of P.Ws. 3 and 4 as the coolies nor did he state that they witnessed the incident. The next ground was that the incident took place between 6.30 and 7.00 P.M. when darkness had set in and not at 5.00 or 5.30 p.m. as alleged by the prosecution and it was, therefore, doubtful whether agricultural labours would still be working at that time to remove the weeds. The steps of reasoning of the High Court in fixing the time of the incident are as under:
"He (P.W.1) was admitted in the hospital at 10.30 P.M. according to P.Ws. 2, 5, and 10. The distance between Machavaram and Kakinada is about 35 KMs. According to P.W. 15, he took 45 minutes to travel in a jeep. According to P.W.2, the taxi was brought at about 6-30 P.M. P.W.5 stated that it took about 1,1/2 hours to reach Kakinada. According to P.W.1, they started to Kakinada by about 7-30 P.M. Even then there is an unexplained gap of 2 to 2, 1/2 hours, according to the learned counsel for the appellant. It is true that there is an unexplained gap of at least 1, 1/2 hours if not 2, 1/2 hours even after giving allowance to the fact that the villagers may not have good time sense. The journey from Machavaram to Kakinada could not have taken more than an hour. Considering all the relevant circumstances, we are of the view that the incident did not take place either at 5 or 5-30 P.M. as stated by the prosecution but it should have taken place between 6- 30 and 7-00 P.M. most probably after sun-set."
Lastly, the High Court observed that there was contradiction between their evidence and that of P.W. 15 as to the time when their statements under Section 161 Cr. P.C. were recorded and that there were some contradictions between their depositions in Court and the statements recorded during investigation.
9. After having discussed the evidence of the above four eye witnesses the High Court drew the following conclusion :-
"The net result of the above discussion is that amongst the alleged eye-witnesses, we are inclined to think that P.Ws. 1 and 2 did witness the occurrence and there is nothing to discredit their testimony as a whole. However, in view of the partisan nature of the evidence of these two witnesses and the improbability of P.W.2 observing the details of the attack against the deceased and P.W.1, we feel it safe to rely on their evidence to the extent it receives corroboration from the statement of P.W.1 (Ex. P-1) made at the earliest opportunity. In Ex. P-1, specific overt acts were attributed to A-1 and A-2 as far as the attack on P.W.1 is concerned. The said evidence is in conformity with the medical evidence..........."
10. On perusal of the record we are constrained to say that each of the reasons given by the High Court for recording the order of acquittal on favour of A3 to A6 is patently wrong. That apart, some of the observations made by the High Court in that regard stand contradicted by its other observations. For example, having observed that it was quite aware of the fact that P.W.1 was severely injured and he might not have been in a mood to narrate the incident in great details the High Court could not have expected of P.W.1 - nor was it necessary - to give the graphic details of the roles played by each of the accused in the murder. While on this point it will be pertinent to refer to the statements made therein. After giving the background of the enmity between their family and that of the accused P.W.1 stated that on July 31, 1992 at or about 5.00 P.M. when he, his father and coolies were in their field the six accused persons came there armed with knives and spears and suddenly attacked his father. A1 hacked him with a knife on the head and A2 with a spear on the neck and then the other accused assaulted him (the deceased) with knives and spears indiscriminately. This was followed by a statement as to the manner of assault on him by some of the accused. Lastly he stated that P.W.2 witnessed the incident and P.W.4 had brought him to the hospital. It would thus b e seen that all material facts relating to the incident find place in the F.I.R.; and, therefore, the High Court was not at all justified in brushing aside the prosecution case regarding participation of A3 to A6 in the murder on the sole ground that the manner in which they actually assaulted the deceased was not mentioned therein. Absence of the names of A3 and A4 in the F.I.R. should not also have been made one of the grounds to discard that; evidence when it was specifically mentioned therein that coolies were working with them in their field at the time of the assault (which necessarily meant that they were witnesses to the incident) and when admittedly P.Ws. 3 and 4 work as collies, Incidentally, it may be mentioned that name of P.W.4 does find place in the F.I.R.(as noticed earlier) as the person who took P.W.1 to the hospital.
11. As regards the finding of the High Court that the incident took place between 6.30 and 7.00 P.M. and not at 5.00 P.M. or 5.30 P.M. the same is contradictory to its other finding. Having accepted the evidence of P.Ws. 1 and 2, who categorically stated that the incident took place at 5.00 or 5.30 P.M. and, relying thereupon, having convicted A1, A2 and A3 (for assaulting P.W.1) the High Court could not have concluded that it took place between 6.30 and 7.00 P.M. That apart, when read in the context of the evidence of P.W.2 and P.W.5 regarding the sequence of events and the sense of time of Unsophisticated villagers (which the High Court itself noticed) the reasoning of the High Court (quoted earlier) to draw the above conclusion is wholly unsustainable. According to the above witnesses, after the incident took place P.W.2 first went to the village to inform P.W.5, father-in-law of P.W.1. On getting that information P.W.5 came to the spot and having seen the condition of P.W.1 went back to the village to fetch a cart. With the cart he came back again to the place of occurrence and took P.W.1 to his house in the village. Thereafter he and P.W.2 went on bicycle up to a bridge and after keeping their bicycle there went to Ramachandrapuram taxi stand to hire a taxi. They brought the taxi to the house of P.W.1 and then took P.W.1 to Kakinada Government Hospital which, according to P.W.15 was at a distance of 35 Kms, and took him 45 minutes to reach in a jeep. When the above facts are taken into consideration the conclusion is inevitable that the prosecution story that the incident took place either at 5.00 or 5.30 P.M. cannot be doubted nor can it be said with precision that there was an unexplained gap of at least 1 to 1 1/2 hours. Even if there was such an unexplained gap, the High Court could not have by back calculation, refixed the time of the incident at 6.30 P.M. or 7 P.M. (after sunset) which was not even the case of the defence during trial. In view of this discussion of ours the other reason of the High Court to disbelieved P.W.3 and P.W.4 that as agricultural labour they were not expected to work after sunset cannot be supported also.
12. Now that we have found that none of the grounds put forward by the High Court to discard the evidence of P.W.3 and 4 altogether and to acquit A3 to A6 of the charge of murder cannot at all be sustained, we have to look into the evidence on record to ascertain whether the convictions of A1 for the murder and assault on P.W.1, acquittal of A3 of the offence of murder and of A4 to A6 of both the offences are justified. Coming first to the evidence of P.W.1 we find that he has narrated the entire prosecution case as detailed earlier. Next, the unimpeachable evidence of P.W.10, who examined him at the Kakinada Hospital at 10.50 P.M. on July 31, 1992 proves that he had six injuries on his person. P.W.10 opined that all the injuries were fresh and one of them (injuries No. 6) was grievous. According to him some of the injuries could be caused by axe and knife. The injuries found on the person of P.W.1 fully supports his claim of having been present at the scene of offence. Then again, in view of the concurrent finding of the learned Courts below that the evidence adduced by the two doctors who were examined as defence witnesses, namely D.W.4 and D.W.5 could not be relied upon - a finding with which we are in complete agreement - it must be said that the F.I.R. was lodged at the earliest available opportunity. This is another circumstance to corroborate the evidence P.W.1. In assailing his evidence Mr. Lalit, appearing for A1, urged that having disbelieved his evidence so far as it sought to implicate A3 to A6, the High Court ought not to have placed any reliance upon his evidence to convict A1. This contention of Mr. Lalit also drew our attention to some contradictions in his evidence. To eschew prolixity we refrain from detailing those contradictions as they are minor contradictions and do not in any way distract from his credibility.
13. The evidence of other three witnesses, namely P.Ws.2, 3 and 4 fully support that of P.W.1 and inspite of searching cross examination the defence could not make a dent in their evidence to discredit them. The evidence of the four eye witnesses clearly establishes that the accused persons came there armed with various weapons and all of them participated in the murder of Buchi Reddy. 18 injuries of different nature, shapes and sizes all over his body, which resulted in his immediate death, as testified by P.W.9, go a long way to support the version of all the eye witnesses as to the manner in which the assault took place. Taking an over all view of the entire evidence on record we find no hesitation in concluding that the murder was committed by all the accused persons in furtherance of their common intention. That necessarily means that A1, A3, A4 and A6 are liable for conviction under Section 302/34 I.P.C. Accordingly, we uphold the conviction and sentence of A1 under Section 302/34 I.P.C. and, after setting aside the acquittal of A3 to A6 of the above offence convict them also under Section 302/34 I.P.C. For the conviction each of them shall suffer imprisonment for life. The convictions of A1 and A3 under Section 326 and 324 I.P.C. respectively for the assault on A1 and the sentences imposed upon them for the above convictions by the High Court will stand. The sentences of A1 and A3 shall run concurrently.
14. On the conclusions as above we dismiss Criminal Appeal No. 343 of 1997 and allow Criminal Appeal Nos. 336-337 of 1997 to the extent indicated above. Let A3 (Goluguri Adireddy). A4 (Kovvuri Surreddy @ Suryanarayana Reddy), A5 (Kovvuri Subbareddy) and A6 (Sathi Satyanarayana Reddy) b e ,.M?btaken into custody to serve out the sentences now imposed upon them for their conviction under Section 302/34 I.P.C.