2002 Supreme(SC) 831

2002(5) Supreme 484
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
Y.K. Sabharwal and H.K. Sema, JJ.
Nallabothu Venkaiah -Appellant
versus
State of Andhra Pradesh -Respondent
Criminal Appeal No. 517 of 2000
Decided on 20-8-2002
Counsel for the Parties :
For the Appellant : A. Subba Rao, Advocate.
For the Respondent : Ms. T. Anamika and G. Prabhakar, Advocates.

VERY IMPORTANT POINT
Although appellant was charged u/s 302/149 IPC but High Court convicted him u/s 302 IPC simpliciter. This is not fatal notwithstanding that other accused were acquitted on the same evidence on which appellant is convicted in the facts and circumstances of this case.

Headnote:(i) Indian Penal Code, 1860-Sections 148, 302/149-Appellant charged for having formed unlawful assembly with 15 other and caused the death of R.V. by hurling bombs and causing bodily injuries by axes, knives and spears-15 others acquitted-Only appellant convicted u/s 302 IPC by High Court-Appeal against-Eye witnesses PW1, PW2 and PW3 were interested witnesses, inimical due to party faction in village to which both deceased, witnesses and accused hailed-Trial judge believed them but High Court rejected-Whether High Court was right? (No)-Test to be applied in such a case-Acquittals not disturbed as there were no appeals against acquittals (Evidence Act-Appreciation of Evidence of interested witnesses).

       Held : We have already quoted the reasoning rendered by the High Court acquitting accused Nos. 3, 4, 5, 7, 8 and 10. The aforesaid finding has been rendered by the High Court without discussing the depositions of P.Ws. 1 to 3 and by a cryptic order. The witnesses are inimically disposed to the accused alone would be no ground to throw away their otherwise reliable, natural and credit worthy statement. The test, in such circumstances, as correctly adopted by the Trial Court, is that if the witnesses are interested, the same must be scrutinized with due care and caution in the light of the medical evidence and other surrounding circumstances. Animosity is double edged sword and it can cut both sides. It can be a ground for false implication. It can also be a ground for assault. We are constrained to deprecate the manner in which the High Court threw away the eye-witness accounts of P.Ws 1 to 3 on ground of animosity albeit without any discussion. The Trial Court found from the deposition of PWs that the village Tondapi is a faction ridden village where criminal cases are instituted involving both the prosecution and accused parties and it is difficult to secure unbiased and independent witnesses and after thorough scrutiny accepted the evidence of P.Ws 1-3 as truthful and reliable. It must be borne in mind that criminal justice system must be alive to the expectation of the people. The principle that no innocent man should be punished is equally applicable that no guilty man should be allowed to go unpunished. Wrong acquittal of the accused will send a wrong signal to the society. Wrong acquittal has its chain reactions, the law breakers would continue to break the law with impunity, people then would lose confidence in criminal justice system and would tend to settle their score on the street by exercising muscle power and if such situation is allowed to happen, woe would be the Rule of Law. What is apparent from the aforesaid discussion is that the acquittal of the accused recorded by the High Court was clearly contrary to the evidence on record and on the basis of mis-appreciation of eye witnesses account. It is unfortunate that acquittal appeals are not before us. (Paras 13, 14 & 15)

       (ii) Indian Penal Code, 1860-Sections 148, 302/149-Charges against appellant under-But convicted u/s 302 simpliciter-Whether appellant could be convicted u/s 302 IPC (simpliciter) without the aid of Section 149 I.P.C. in the absence of substantive charge u/s 302 IPC? (Yes)-Case Law referred.

       Held : Analytical reading of catena of decisions of this Court, the following broad proposition of law clearly emerges: (a) the conviction under Section 302 simpliciter without aid of Section 149 is permissible if overt act is attributed to the accused resulting in the fatal injury which is independently sufficient in the ordinary course of nature to cause the death of the deceased and is supported by medical evidence; (b) wrongful acquittal recorded by the High Court, even if it stood, that circumstance would not impede the conviction of the appellant under Section 302 r/w Section 149 I.P.C. (c) charge under Section 302 with the aid of Section 149 could be converted into one under Section 302 r/w Section 34 if the criminal act done by several persons less than five in number in furtherance of common intention is proved. We have already held that accused Nos. 3, 4, 5, 7, 8 and 10 have been wrongly acquitted by the High Court discarding the natural and reliable evidence tendered by three eye-witnesses P.Ws. 1 to 3. If that is so, the acquittal of accused Nos. 3, 4, 5, 7, 8 and 10 would not affect the conviction of the appellant under Section 302 with the aid of Section 149 though their acquittal stood because specific overt acts have been attributed to the appellant by eye-witnesses, corroborated by medical evidence, which are independently sufficient in the ordinary course of nature to cause the death of the deceased. The consistent evidence of P.Ws. 1 to 3 is that after the bomb was hurled at the deceased, the deceased was driving his motor-cycle slowly. P.W.3, who was a pillion rider of the motor-cycle of the deceased, jumped out of the motor-cycle, rushed to the bush and watched the whole incident under the bush. He specifically stated that after the deceased fell down accused No. 1 hacked axe blows on the neck of the deceased. The same is the statement of P.W.1, who was riding a scooter on the same road at that particular time. The same is the statement of P.W.2. P.W.2 was a pillion rider on the scooter of P.W.1. The witnesses and the accused are from the same village and the incident had happened on 13th October, 1992 at about 5.30 p.m. There cannot be any scope of mistaken identity of the accused. P.W.4 stated that he knew all the accused and the deceased. On the day of the incident, while proceeding on his tractor on the Pakalapadu major canal he saw all the accused armed with axes, spears and knives were going on the road. Dr. G. Vijaya Saradhi was examined as P.W.9. He conducted post mortem examination of the deceased and found as many as 21 injuries, as referred to in the earlier part of the judgment. Injury Nos. 7, 9 and 10 are incise wounds. On internal examination, the doctor found, "neck shows upper air passes were cut. Left castrotid vessels were cut, muscles were cut. Haematoma present on left side of the neck. This corresponds to injuries 9 and 10". The doctor opined that "the patient would appear to have died of hemorrhage and shock, and injuries to upper air passages, manor vessels and vital organs liver, kidney, resulting from multiple injuries." From the overt acts attributed to the accused appellant by P.Ws. 1 to 3, corroborated by medical evidence, it is apparent that the appellant has caused murderous assault resulting in the death of the deceased. (Paras 24, 25, 26, 27, 28)

       (iii) Indian Penal Code, 1860-Section 302-Conviction of appellant under on the basis of Evidence of PW1, PW2, PW3 and medical evidence-PW s evidence not believed for other accused in same incident-Whether on the self same evidence appellant could be convicted? (Yes in the facts of this case)-Result-Appeal dismissed.

       Held : The next contention of Mr. Subba Rao, learned counsel for the appellant that on the self same evidence, the other accused had been acquitted and, therefore, the appellant could not have been convicted relying upon the same evidence. This contention deserves to be rejected. Firstly, because we have already held that the acquittal of the other accused, rendered by the High Court, was wrong and based on misappreciation of evidence. Secondly, as pointed out, eye-witness version is supported by the medical evidence attributing specific overt acts to the appellant. The ocular and medical evidence on record clearly establish the guilt of the appellant beyond reasonable doubt for causing the death of the deceased. For the reasons aforestated, there is no merit in this appeal and it is accordingly dismissed. (Paras 29 & 30)