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2007 Supreme(AP) 999
2008 (1) ALD (Cri.) 54 (AP)
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
THE HONBLE SRI JUSTICE D.S.R.VARMA AND THE HONBLE SRI JUSTICE K.C.BHANU
The Public Prosecutor, High Court of Andhra Pradesh, Hyderabad — Appellant
Vs.
Md. Ankoos — Respondent
Criminal Appeal No.556 of 2005
Decided on : 04-10-2007
Counsel for the Appellant : Public Prosecutor
Counsel for Respondents:Sri C. Padmanabha Reddy, Senior Advocate, representing Sri A. Prabhakar Rao
Headnote:
Constitution of India – Criminal Procedure Code – Section 7, 109, 161 – Sections 148, 448, 307, 302 and 120, 307 – Offence of Murder - villagers hatched a plan to do away with the deceased persons including P.Ws.6 and 7 suspecting them to be responsible for the said mysterious deaths because of sorcery played by them – Pursuant to said plan accused 1 to 15, 17 to 59 and 62 to 78 formed themselves into an unlawful assembly and some of them armed with lethal weapons like sticks and also some of the accused, who are women, holding chilly-powder gathered in front of house of accused near Rice Mill and that accused 1, 5 and 6 brought deceased accused 11, 13 and 14 brought the deceased accused 9, 10, 26 and 29 brought deceased accused 2 to 4 and 17 brought deceased accused 28, 32 and 33 brought P.W.6; whereas accused 18, 20 and 24 brought P.W.7 from their respective houses forcibly – Trial Court framed following charges against accused Charge accused 1 to 15, 17 to 59 and at about 01.00 hour at village were members of an unlawful assembly and did in prosecution of the common object of such assembly namely to commit murder of commit offence of rioting by pouring kerosene and that thereby committed an offence punishable under Section 148 I.P.C – Charge above accused on above mentioned date time and place committed house-trespass by entering into house of D.1 to D.5 with intent to kill them and that thereby committed an offence punishable under Section 448 I.P.C; Charge No.3:- That above accused on above mentioned date time and place did an murder of D.1 to D.5 with such intention and under such circumstances that if by that act they had caused the death of D.1 to D.5 they would have been guilty of murder and that thereby committed an offence punishable under Section 307 – Held, Unfortunately Sessions Judge did not frame charge against accused persons for offence punishable under S.302, I.P.C. read with S.149, I.P.C. It is also important to note that relevant prosecution allegations so as to bring in ingredients of offence punishable under S.302, I.P.C. read with S.149, I.P.C. also were not incorporated in charge framed by Sessions Judge accused were not told that they had to face charge of being member of unlawful assembly and common object of such assembly was to commit murder of deceased and in furtherance of that common object murder was committed and thereby they had constructive liability and thus they committed offence punishable under S.302, I.P.C. read with S.149, I.P.C. Of course mere omission to mention S.149 may be considered as an irregularity but failure to mention nature of offence committed by them cannot be said to be a mere irregularity. Had this mistake been noticed at trial stage – Sessions Judge could have corrected charge at any time before delivery of judgment – Coming to charge No.1 levelled against accused 1 to 15, 17 to 59 and 62 to 78, for offence punishable under Section 148 I.P.C., we are of view that though the act of rioting is made out, regarding persons and the weapons of offence said to have been used by them there is no evidence about their presence much less usage of deadly weapons evidence of P.Ws.2 to 4 is also totally silent on this. So, in absence of main ingredient presence of deadly weapons act of accused even assuming that same is made out cannot be brought into the ambit of Section 148 I.P.C. Accordingly acquittal of accused recorded by trial Court for offence under Section 148 I.P.C is confirmed – Application is allowed.
Heard both sides.
2. This Criminal Appeal is filed by the State assailing the judgment of acquittal, dated 09.06.2003, in Sessions Case No.425 of 2001, passed against the respondents-accused 1 to 20 and 22 to 78, by the II Additional Sessions Judge, Warangal, for the offences allegedly committed under Sections 148, 448, 307, 302 and 120-B read with Section 109 I.P.C.
3. The case of prosecution, in brief, is as under:
In the year 1997, some villagers of Thimmapur suspected that their cattle died due to sudden ill health and the same was caused because of practising sorcery by some of their villagers. In order to identify them, accused 19, 60, 61, 62 and 69 called accused No.16, who is a Mantrik, from Lingapuram village and collected some donations from each family of the village and paid to him. Upon such payment, accused No.16 revealed the names of deceased persons, who are five in number along with one Panduga Renuka and Poshala Yeshoda (P.Ws.6 and 7). That apart, about 15 days prior to the incident one Rashaboina Bikshapathi, who was the son of accused 17 and 72 and brother of accused 71 and 73, died at M.G.M. Hospital, Warangal while undergoing treatment. After five days, one Panduga Nirmala, who was a relative of accused 9, 10, 26, 59 and 76, also died in the village due to ill health. Then the villagers hatched a plan on 02.08.2000 to do away with the deceased persons including P.Ws.6 and 7 suspecting them to be responsible for the said mysterious deaths because of sorcery played by them. Pursuant to the said plan, accused 1 to 15, 17 to 59 and 62 to 78 formed themselves into an unlawful assembly and some of them armed with lethal weapons like sticks and also some of the accused, who are women, holding chilly-powder gathered in front of the house of accused No.7 near Rice Mill and that accused 1, 5 and 6 brought the deceased V.Narsamma; accused 11, 13 and 14 brought the deceased V.Uppakantha; accused 9, 10, 26 and 29 brought the deceased K.N.Yellaiah and K.Rajamma; accused 2 to 4 and 17 brought the deceased S.Ilu Mallamma; accused 28, 32 and 33 brought P.W.6; whereas accused 18, 20 and 24 brought P.W.7 from their respective houses forcibly. Thereafter, accused 1 to 15, 17 to 59 and 63 to 78 beat the above said persons, who were so brought from their respective houses forcibly, with sticks and that remaining accused, who were carrying chilly-powder, sprinkled the same into their faces. Somehow, P.Ws.6 and 7 managed to escape from the scene with injuries. Then, accused 19, 65 and 66 brought a drum of kerosene. Accused 1 to 15, 17 to 59 and 62 to 78 poured kerosene on the deceased persons and set fire due to which the deceased viz., (1) S.Ilu Mallamma, (2) V.Narsamma, (3) K.N.Yellaiah and (4) K.Rajamma died on the spot, and (5) V.Uppakantha succumbed to the burn injuries while undergoing treatment at M.G.M. Hospital, Warangal.
4. A complaint in this regard was lodged by P.W.1, in charge V.A.O. of Thimmapur village, and the same was registered by the Police, Sangam, and took up investigation. During the course of investigation, witnesses were examined, scene of offence panchanama was conducted and the drum, which contained kerosene, was seized from the scene. After conducting inquest over the dead bodies, the same were sent for post-mortem examination. The other formalities were also completed and eventually charge-sheet was filed against accused 1 to 15, 17 to 20, 22 to 59 and 62 to 78 for the offences punishable under Sections 148, 448, 307 and 302 read with Section 149 I.P.C.; and against accused No.16 for the offence punishable under Section 5 read with Section 7 of Drugs and Magical Remedies (Objectionable Advertisement) Act, 1954; and against accused 60 and 61 for the offences punishable under Sections 120-B, 302 and 307 read with Section 109 I.P.C.
5. However, the record reveals that accused No.21 being found to be juvenile as on the date of offence, the case against h
