IMPORTANT POINT
Case diary cannot be used as evidence. When accused are acquitted of offence u/s 148, they cannot be convicted u/s 302 r/e 149 IPC.

JUDGEMENT

R.M. Lodha, J.—

Five persons were done to death in the intervening night of October 2 and 3, 2000 in village Thimmapur, District Warangal. The villagers suspected that deceased were practicing sorcery and due to that few deaths took place in the village. 77 persons were sent up for trial for the offences under Sections 148, 448, 307, 302, 120-B read with 109, IPC. The Court of 2nd Additional Sessions Judge at Warangal vide his judgment dated June 9, 2009 acquitted all of them. In the appeal preferred by the State of Andhra Pradesh, High Court confirmed the judgment of acquittal of 59 accused but convicted nineteen persons for the offence punishable under Section 302 read with Section 149, IPC and sentenced them to undergo imprisonment for life vide judgment dated October 4, 2007. Their acquittal for other offences was, however, confirmed. All these nineteen convicted persons preferred special leave petition in which leave has been granted and appeal has come up for hearing before us.

2. Few cattle died in the village Thimmapur in 1997. The death of these cattle were due to sudden ill-health. The villagers of Thimmapur suspected that their cattle died due to sorcery practiced by some of the villagers. T. Lingaiah (A-19), G. Sambaiah (A-60), B. Mallaiah (A-61), M. Ramreddy (A-62) and K. Veeraswamy (A-69) thought of identifying the culprits. They called M. Yakaiah (A-16) - a Mantrik from Lingapuram village; collected some donations from the villagers and paid to him to identify the persons responsible for the death of cattle. A-16 revealed the names of Chatta Boina Ilu Mallamma @ Ilamma (D-1), Velpula Narsamma (D-2), Konkanoori Yellaiah (D-3), Konkanoori Rajamma (D-4), Veera Uppakantha (D-5), Panduga Renuka (PW-6) and Pochala Yeshoda (PW-7) responsible for the tragedy. About fifteen days prior to the incident, one Boyana Bikshapathi, son of B. Venkataiah (A-17) and B. Rayalaxmi (A-72) and brother of B. Sampath (A-71) and B. Ravi (A-73) died at MGM Hospital at Warangal. Ten days prior to the incident, one Pandunga Nirmala relative of P. Yadagiri (A-9), P. Hymavathi (A-10), P. Ramulu (A-26), P. Buchaiah (A-59) and P. Ellaswamy (A-76) died in the village due to ill-health. The case of the prosecution is that the accused hatched a plan on August 2, 2000 to kill D-1, D-2, D-3, D-4, D-5, PW-6 and PW-7 as they suspected that these persons were responsible for these deaths because of sorcery played by them. According to the prosecution 78 persons viz., Md. Ankoos (A-1), D. Yella Swamy (A-2), Ch. Laxmaiah (A-3), S. Babu (A-4), Ch. Shankar (A-5), I. Buchaiah (A-6), K. Sammaiah (A-7), K. Bhasker (A-8), P. Yadagiri (A-9), P. Hymavathi (A-10), I. Mogili (A-11), K. Raju (A-12), K. Suresh (A-13), I. Ellaiah (A-14), N. Sudhakaar (A-15), B. Venkataiah (A-17), A. Chandraiah (A-18), T. Lingaiah (A-19), M. Venu (A-20), Neerati Sudhaker (A-21), Ch. Veeralaxmi (A-22), K. Laxmi (A-23), V. Vijaya (A-24), A. Lalitha (A-25), P. Ramulu (A-26), P. Narasaiah (A-27), V. Mogili (A-28), Ch. Satyanarayana (A-29), M. Laxmi (A-30), I. Renuka (A-31), E. Aruna (A-32), S. Padma (A-33), Ch. Yakamma (A-34), K. Mariya (A-35), K. Narsamma (A-36), K. Yellamma (A-37), K. Komuramma (A-38), S. Radha (A-39), K. Kanakalaxmi (A-40), N. Bhadramma (A-41), K. Kamalamma (A-42), N. Narsamma (A-43), M. Ahalya (A-44), D. Yaka Laxmi (A-45), S. Laxmi (A-46), N. Bhadramma (A-47), N. Suguna (A-48), V. Narsamma (A-49), I. Yakaiah (A-50), K. Narsaiah (A-51), S. Ramchandru (A-52), P. Roja (A-53), B. Bichamma (A-54), D. Saramma (A-55), D. Laxmi (A-56), Ch. Sammakka (A-57), A. Soundarya (A-58), P. Buchaiah (A-59), M. Ramreddy (A-62), V. Iylaiah (A-63), I. Babu (A-64), T. Sadaiah (A-65), T. Vishnu (A-66), B. Sudhakar (A-67), N. Ilumallu (A-68), K. Veeraswamy (A-69), D. Sarangapani (A-70),B. Sampath (A-71), B. Rayalaxmi (A-72), B. Ravi (A-73), Ch. Sammaiah (A-74), D. Yakaiah (A-75), P. Ellaswamy (A-76), K. Veeraiah (A-77) and T. Veeraswamy (A-78) formed an unlawful assembly; some of t