2009 Supreme(SC) 788

2009(4) Supreme 506
SUPREME COURT OF INDIA
D.K. Jain and R.M. Lodha, JJ.
Anna Reddy Sambasiva Reddy & Ors. — Appellants
versus
State of Andhra Pradesh — Respondent
Criminal Appeal No. 408 of 2007
Decided on : 21-04-2009

IMPORTANT POINTS
1. The testimony of eye-witnesses carries with it the criticism of being tutored if they give graphic details of the incident and their evidence would be assailed as unspecific, vague and general if they fail to speak with precision. The golden principle is not to weigh such testimony in golden scales but to view it from the cogent standards that lend assurance about its trustfulness.
2. Because of a mere defect in language or in the narration or in form of the charge, the conviction would not be rendered bad if accused has not been adversely affected thereby.

Headnote:Indian Penal Code, 1860 – Sections 302, 307, 307 read with 149, 148 and 341 – Prosecution of fifteen persons for forming an unlawful assembly armed with deadly weapons and in prosecution of common object of such assembly for committing murder of two persons, members of rival group and for causing grievous injuries to several others and for committing offence of rioting – Trial court while convicting eleven accused persons acquitted two accused – Appeals thereagainst – Dismissed by High Court – Death of A-5 during pendency of appeal. – Appeal against conviction by remaining accused persons – Plea of appellants that first information report was a concocted document as PW-1 being seriously injured was not in a position to give any statement – It is true that injury no.1 received by PW-1 in front of left parietal area and the depressed fracture of frontal bone was extremely grave and serious but on the face of clear, categorical and unambiguous endorsement made by Doctor PW-10 that PW-1 was in a fit and proper condition to give a statement at that time and fact that PW-11 recorded the statement of PW-1 in the presence of PW-10, there could not be even slightest doubt about authenticity of Ex.P-1 – No justifiable reason to even remotely conclude that Ex.P-1 was not the statement given by PW-1 – Evidence of PW1 thatA-1, A-2, A-10 and A-12 were armed with axes and remaining eleven accused were armed with sickle and that A-1 to A-9 hacked D-1with their weapons while A-3, A-6, A-7, A-10 to A-13 hacked D-2 with their respective weapons – Testimony of PW-1 was corroborated by medical evidence – PW-3 was another eye-witness who also gave detailed version of incident – It is true that neither PW-1 nor PW-3 assigned specific injuries or specific overt acts attributed to the accused individually but looking to the nature of the incident where large number of persons attacked D-1, D-2 PW-1, PW-2 and PW-3, it would not have been possible for PW-1 or PW-3 to attribute specific injury individually to each accused – Hence held that testimony of PW-1 and PW-3 was of credence and not deserved to be discarded on ground of non-mentioning of specific overt acts – Appeal dismissed. (Paras 22 to 26)

        Indian Penal Code, 1860 – Sections 302, read with 149 – Conviction of appellants for forming an unlawful assembly armed with deadly weapons and in prosecution of common object of such assembly for committing murder of two persons, members of rival group and for causing grievous injuries to several others –Appeal against conviction on plea that in absence of specific charge under Section 149, accused persons could not be convicted under Section 302 read with Section 149 as Section 149 creates a distinct and separate offence – Held all accused were put to notice under charge no. 1 that, they were members of an unlawful assembly armed with deadly weapons and in prosecution of common object of such assembly, namely, in murdering deceased 1and 2, they committed offence of rioting – A-1 to A-5 and A-6 to A-9 were noticed of the particulars under charge no.4 that during the course of same transaction as mentioned in charge no. 1, they committed murder by intentional causing death of D-1 and thereby committed an offence punishable under Section 302 IPC. A-3, A-6 to A-8, A-10 to A-13 were put to notice under charge no.5 that during the course of the same transaction as mentioned in charge no. 1 they committed murder by intentional causing death of D-2 – A careful reading of charge no. 4 and charge no.5 left no manner of doubt, that since transaction mentioned in charge no.1 had been made integral part thereof, that all necessary ingredients of Section 149 IPC were implicit therein except mentioning of Section 149 IPC specifically – The particulars stated in charge no. 4 and 5 were reasonably sufficient to give the appellants adequate notice of Section 149 IPC although not specifically mentioned – Held non-framing of a charge under section 149 IPC, on the face of the charges framed against appellants would not vitiate their conviction; more so when the accused have failed to show any prejudice in this regard – Deadly weapons with which appellants were armed, the number of injuries inflicted on D-1 and D-2, and the murderous assault led to a certain inference that appellants shared common object of committing murder with other accused – Appeal dismissed. (Paras 42 to 46)

       Facts of the Case :

        1. Fifteen persons were prosecuted herein in the instant case for forming an unlawful assembly armed with deadly weapons and in prosecution of common object of such assembly for committing murder of two persons, members of rival group and for causing grievous injuries to several others and for committing offence of rioting. Trial court while convicting eleven accused persons acquitted two accused. Appeals thereagainst were dismissed by High Court.

        2. Present appeal has been filed against order of conviction passed by courts below. Plea of appellants that first information report was a concocted document as PW-1 being seriously injured was not in a position to give any statement.

       Findings of the Court :

        It is true that injury no.1 received by PW-1 in front of left parietal area and the depressed fracture of frontal bone was extremely grave and serious but on the face of clear, categorical and unambiguous endorsement made by Doctor PW-10 that PW-1 was in a fit and proper condition to give a statement at that time and fact that PW-11 recorded the statement of PW-1 in the presence of PW-10, there could not be even slightest doubt about authenticity of Ex.P-1. Evidence of PW1 thatA-1, A-2, A-10 and A-12 were armed with axes and remaining eleven accused were armed with sickle and that A-1 to A-9 hacked D-1with their weapons while A-3, A-6, A-7, A-10 to A-13 hacked D-2 with their respective weapons. Testimony of PW-1 was corroborated by medical evidence. PW-3 was another eye-witness who also gave detailed version of incident. It is true that neither PW-1 nor PW-3 assigned specific injuries or specific overt acts attributed to the accused individually but looking to the nature of the incident where large number of persons attacked D-1, D-2 PW-1, PW-2 and PW-3, it would not have been possible for PW-1 or PW-3 to attribute specific injury individually to each accused. Hence held that testimony of PW-1 and PW-3 was of credence and not deserved to be discarded on ground of non-mentioning of specific overt acts. Appeal was dismissed.