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1996(4) Supreme 499
SUPREME COURT OF INDIA
M.K. Mukherjee and S.P. Kurdukar, JJ.
Golla Jalla Reddy & Ors. -Appellants
versus
State of Andhra Pradesh -Respondent
Criminal Appeal No. 402 of 1986
Decided on 25-4-1996
Held : The High Court held that so far as the involvement of A1 and A2 in the offences in question was concerned the findings of the trial Court were fully justified. As regards the acquittal of A3 to A6 the High Court observed that the finding of the trial Judge that there was no evidence regarding the participation of A3 to A6 in the incident and, therefore, it was not safe to convict them was patently wrong for P.W.1 to P.W.3 had consistently deposed that A3 to A6 alongwith A1 chased D2 and made D2 to lie on the log in such a way that his neck rested on the log and A2 then cut the throat of D2 with billhook. The High Court pointed out that the trial Judge was not justified in acquitting A3 to A6 on the specious ground that the eye-witnesses were not able to speak as to on which part of the body of D2, A3 to A6 inflicted injuries and, therefore, there was a reasonable doubt about their participation in the offences. The High Court also took exception to the observation of the trial Court that the medical evidence contradicted the oral evidence as, according to it, there was no contradiction at all. According to the High Court the overwhelming evidence of the eye-witnesses and the medical evidence clearly established that some persons must have caught hold of D2 in the manner alleged by the prosecution. The High Court lastly held that A3 to A6 played active roles in causing the death of D2 and, therefore, they could not escape their liability. In dealing with the prosecution case relating to the attack on D3 the High Court however observed that the trial Court s finding that it would not be safe to convict the accused persons for the above murder relying solely on the evidence of P.W.1 could not be said to be a perverse one. (Para 6)
Further held that the claim of the three eye-witnesses (P.W.1, P.W.2 and P.W.3) that they had seen the incident cannot be distrusted. We therefore now proceed to consider the worth of their evidence keeping in view that P.Ws. 1 and 2 being partisan witnesses their evidence needs to be examined with utmost care and caution and confining our attention to the murder of D1 and D2, as both the learned Courts below have exonerated all the accused persons of the charges relating to the murder of D3. After detailing the background of the incident and the circumstances necessitating their attendance in the Court at Gooty on the fateful day. (Para 12)
The evidence of P.W. 1 as to the manner in which D1 and D2 were done to death is also corroborated by the evidence of P.W.2 in all material particulars, including the individual roles that were played by A2 to A6 in the murder of D2. In cross-examination, however, it was elicited from him that he did not mention in his statement made under Section 161 Cr.P.C. that D2 was made to lie down on the log of wood and also did not state that A3 to A6 caught hold of him when A2 struck him with billhook. If in view of the omissions - which, obviously are material and therefore amount to contradictions- we proceed on the basis that the evidence of P.W.2 as also P.W.3 - about whose similar omissions we have discussed earlier - regarding individual roles of the appellants in the murder of D2 cannot be relied upon still the fact remains that there is no such contradictions so far as their testimonies seek to prove that A3 to A6 chased D2 and P.W.2 when they were rushing for their lives, with billhooks, that A1 and A2 joined them and that thereafter A1 to A6 caught hold of D2 and A2 assaulted him. The consistent evidence of the three eye-witnesses in this regard, coupled with the uncontroverted fact that D2 met with his death there with a number of injuries unmistakably proves, independent of the actual role of the six appellants in the assault itself, that all of them shared the common intention to commit the murder. To put it differently, even it is assumed that the prosecution has failed to conclusively prove as to the actual manner in which the appellants brought about the death of D2 still the circumstances as appearing in the evidence of the three eye-witnesses establishes that all of them shared the common intention to commit the murder. (Para 13)
JUDGMENT
M.K. Mukherjee, J.-In Sessions case No. 96 of 1983 on the file of the Sessions Judge, Anantpur 10 persons (hereinafter referred to as A1 to A10 respectively) were tried for criminal conspiracy, rioting with deadly weapons and murders of Kalapuram Paramasani Narasimhudu, Golla Jalla Malli Reddy and Golla Jalla Narayana Reddy (hereinafter referred to as D1, D2 and D3 respectively). The learned Judge convicted and sentenced A1 under Section 302 IPC and Section 3 of the Explosive Substances Act for committing the murder of D1 with bombs and A2 under Section 302 IPC (simpliciter) for committing the murder of D2 and under Section 302 read with Section 34 IPC for the murder of D1. A1 and A2 were acquitted of the other charges and A3 to A10 of all the charges. Against their convictions and sentences A1 and A2 filed two separate in the High Court and the State, in its turn, filed an appeal against the acquittal of the other eight. During the pendency of the appeal A1 died and consequently his appeal abated. By a common judgment the High Court dismissed the appeal preferred by A2 and allowed the other appeal in part by setting aside the acquittal of A3 to A6 and convicting and sentencing them under Section 302 read with Section 34 IPC and affirming the acquittal of A7 to A10. However, considering the tender ages of A4 and A5 the High Court recommended their commitment to a Borstal School. The above judgment of the High Court is under challenge in this appeal preferred by A2 to A6 under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and Section 379 read with Section 380 Cr.P.C.
2. Bereft of details,the prosecution case is as under:
(a) Gola Jalla Chinnappa Reddy (P.W.1) and A1 to A10, who are inter-related, are residents of Brahmanapalli, which is at a distance of 14 kms. from Gooty in the district of Anantapur. D2 and D3, who were two brothers, also hailed from the same place. Golla Paramasani Pullaiah (P.W.2) is a resident of Kalapuram, which is 8 kms. away from Brahmanapalli. D1, who was the maternal uncle of P.Ws. 1 and 2 and D2 and D3, was also a resident of Kalpuram. At the material time A1 was working as Branch Postmaster of Brahmanapalli and A2 was Munsiff of that village.
(b) In 1981 P.W. 1 was elected Sarpanch of his village defeating T. Narayana who was set up by A2 and in that election A1 supported the candidature of P.W.1. However, three months before the incident with which we are concerned in this appeal, ill-feelings developed between PW 1 and A1 over a dispute regarding the house of Golla Chandrasekhara Reddy (PW 7). P.W.7 took the house of one B. Hanumanthu on an annual rent of Rs.60/- out of which he paid him Rs.10/- in advance. Later on he came to know that the house actually belonged to one Varikala Gampamma and so he purchased the house from her for Rs.100/-. Thereafter when Hanumanthu demanded rent and P.W.7 refused to pay an altercation took place between them an over that issue a Panchayat was held in which A1 and A2 figured as elders on behalf of Hanumanthu and P.W.1 and D3 on behalf of P.W.7. The dispute, however, could not be settled by the Panchayat. A few days later A1, A2 and Hanumanthu assaulted P.W.7and threw his belongings out of the house. P.W.7 then informed P.W.1 about the incident who advised him to make a complaint. P.W.7, however, did not file any complaint and left the village and started living at Illuru.
(c) A week after that incident D3 was assaulted by A1 and A2 and their men in Gooty and an amount of Rs.400/- was forcibly taken away from him. D3 informed P.W.1 about the incident but did not lodge any formal complaint about the same. This was followed by another incident on September 22, 1982 in which Suryanarayana Reddy, brother of P.W.1, was assaulted near a cinema hall of Gooty and P.W.1 was told about the same. On the same day the three daughters of A1 were assaulted in
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