Gunnana Pentayya @ Pentadu & Ors vs State Of A.P

Gunnana Pentayya @ Pentadu & Ors. ...Appellants

Versus

State of A.P. ...Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of the Division

Bench of the Andhra Pradesh High Court confirming the

conviction of the appellant for offences punishable under Section

302 of the Indian Penal Code, 1860 (for short `IPC'), so far as the

appellants 1 to 7 are concerned. The others have been convicted

1 for offence punishable under Section 302 read with Section 149

IPC.

2. Originally, there were 57 accused persons. Some of them

were acquitted by learned Sessions Judge, Vizianagaram. The

present appeal is filed by accused nos. 1 to 7, 8, 12, 21 and 24,

A1, A8, A12, A21 and A24 were convicted for homicidal death of

Appalasamy (hereinafter referred to as `D1'). A1 and A7 were

convicted for causing death of Appallanaidu (D2).

3. Prosecution version as unfolded during trial is as follows:

Accused party belongs to a particular political party.

Prosecution party belonged to another political party. On

29.1.2000 around 6.30 A.M., all the accused persons Al to A57

came in a mob to the house of D-2 Appalanaidu and attacked

him with dangerous weapons. Then they went to D-1's house

and attacked him. Thereupon they went round the village and

attacked the Congress supporters P.W.4 to P.W.33. P.W.1

Potnuru Laxminarayana the wife and P.W.2 son of D-2, are

2 eyewitness for the attack on D-2. P.W.3 wife of D-1, is the

eyewitness to the death of D-1.

The motive for the attack is that a love letter was sent by

son of A-47 to a girl, who was a relative of D-2. Due to this there

was a clash between the two groups. A case and counter cases

were registered as Crime No.11 and 12 of 2000. Both the parties

were arrested. Thereafter there was rumour that one person of

the accused group was killed. So the entire mob of the accused

group came and attacked D-1, D-2 and others. All the injured

persons were taken to Hospital at Gajapathipuram.

P.W.53 Sub-Inspector of Police went to the hospital and

recorded the statement from P.W.1. The case was registered as

crime No.13 of 2000 for various offences including Section 307

of IPC. On 31.1,2000, D-1 died. On 10.2.2000, D-2 died. Case

was altered to Section 302 IPC. P.W.53 Inspector of Police took

up the investigation. After investigation, charge sheet was filed

against Al to A57 for various offences including Section 302 IPC.

The Trial Court acquitted some of the accused persons and

3 convicted Al to A7 for offence punishable under Section 302 IPC

and some other accused for the offence punishable under

Section 302 read with Section 149 for causing death to D-2

Appalanaidu. Trial Court convicted A-1, A-8, A-12, A-21 and A-

24 for offence punishable under Section 302 IPC and some

other accused for offence under Section 302 read with Section

149 for causing death of D-1 Appalasamy. Other accused were

convicted for the offences punishable under Section 148, 325,

323, 452 for the individual offences in respect of the injuries

inflicted on the witnesses. However, in appeal the High Court

acquitted the accused persons in respect of Section 302 read

with Section 149 holding that there was no common object. The

High Court confirmed the conviction for the offence under

Section 302 IPC as against Al to A7 for causing death of D-2 and

as against Al, A8, A12, A21 and A24 in respect of death of D-1.

Hence the appeal by these 11 appellants.

4. In support of the appeal, learned counsel for the appellant

submitted that PW's 1 evidence is unreliable because the

complaint Ex.P1 is contrary to what she deposed in Court. It

4 was submitted that the overt acts individually for the first time

stated in court. Secondly, it is submitted that the weapons

purportedly used are not correctly stated by PW1. Presence of

PW 2 is not stated in Ex.P1 by PW1 and also not stated in

statement recorded under Section 161 of the Code of Criminal

Procedure, 1973 (in short the `Code'). It is further submitted

that the statement of PW1 that the accused persons told her that

they will not harm her is not believable. Since the prosecution

case was that the people belonging to a particular political party

were to be attacked, there is no reason as to why PWs 1, 2 and 3

were not attacked. Since the Trial Court and the High Court

have found that the allegations were not fully established

because some of the accused persons were falsely implicated, the

evidence of witnesses is suspect. The evidence of PW2 is

unreliable as his presence is impossible and PW3 is also

unreliable. There was a counter case and the injuries on the

accused had not been explained.

5. Learned counsel for the respondent-State on the other hand

supported the judgments of the courts below.

5

6. So far as the non-mention of the details in Ex.P1 is

concerned, the first information report is not supposed to be

encyclopedia of all details. In the instant case, all relevant details

have been indicated in the first information report. It is to be

noted that the High Court categorically held that the presence of

PW4 to 33 because of receipt of injuries by them was established

beyond all reasonable doubt. Therefore, there was no serious

doubt about the evidence of PWs. 4 to 33.

7. Learned counsel for the appellants submitted that because

of the admitted political rivalry and the relationship of the PWs 1,

2 and 3 their evidence should have been rejected. This Court in

Gauri Shanker Sharma v. State of U.P. (AIR 1990 SC 709)

observed that unless there are sound grounds to reject evidence

of the so called interested witness it would not be proper to hold

that they are interested witnesses.

8. As rightly noted by the High Court the incident in question

took place on 29.1.2000 in the morning in the house of D2.

6 Therefore, the presence of PW1 who was his wife is natural. So

far as the evidence of PW3 is concerned, she stated that A1, A8,

A12, A21 and A24 came to her house. A1 hit her husband with a

stout stick on his head. A24 beat with him the stick and A8,

A12 and A21 beat with sticks indiscriminately on his body as a

result of which D1 sustained grievous injuries. Except

suggesting that A1, A8, A12, A21 and A24 did not beat her

husband, nothing has been elicited to discard her testimony.

Her presence also cannot be doubted because it was morning

time and the incident took place when D1 came out from his

house. Therefore, the evidence of PWs1 and 3 cannot be

doubted and discarded merely because 38 persons have been

named in the first information report.

9. So far as non-mention of name of PW2 is concerned, in

State of Madhya Pradesh v. Mansingh (2003 (10) SCC 414) it was

observed that mere non-mention of name of witness does not

render the prosecution version fragile. There can be no hard and

fast rule that names of witnesses, more particularly, eye

witnesses should be indicated in the FIR. Even otherwise,

7 though name of PW2 has not been specifically mentioned in the

first information report, it cannot be lost sight that he is the son

of the deceased and the incident took place in his house. His

presence is natural considering the time when the incident took

place. Though it was raised that there was delay in examination

of PW2, the same is without substance in view of what has been

stated by this Court in State of U.P. v. Satish (2005 AIR SCW

905). It was observed that this Court in several decisions has

held that unless the investigating officer is categorically asked as

to why there was delay in examination of the witness, the

defence cannot take advantage therefrom. In the instant case,

no question has been asked to the investigating officer PW53

regarding the reason for delay. There was even no suggestion

that PW2 was not present in the house when the incident took

place.

10. A plea which was emphasized by the appellants relates to

the question whether Section 149, IPC has any application for

fastening the constructive liability which is the sine qua non for

its operation. The emphasis is on the common object and not on

8 common intention. Mere presence in an unlawful assembly

cannot render a person liable unless there was a common object

and he was actuated by that common object and that object is

one of those set out in Section 141. Where common object of an

unlawful assembly is not proved, the accused persons cannot be

convicted with the help of Section 149. The crucial question to

determine is whether the assembly consisted of five or more

persons and whether the said persons entertained one or more

of the common objects, as specified in Section 141. It cannot be

laid down as a general proposition of law that unless an overt act

is proved against a person, who is alleged to be a member of

unlawful assembly, it cannot be said that he is a member of an

assembly. The only thing required is that he should have

understood that the assembly was unlawful and was likely to

commit any of the acts which fall within the purview of Section

141. The word `object' means the purpose or design and, in

order to make it `common', it must be shared by all. In other

words, the object should be common to the persons, who

compose the assembly, that is to say, they should all be aware of

it and concur in it. A common object may be formed by express

9 agreement after mutual consultation, but that is by no means

necessary. It may be formed at any stage by all or a few

members of the assembly and the other members may just join

and adopt it. Once formed, it need not continue to be the same.

It may be modified or altered or abandoned at any stage. The

expression `in prosecution of common object' as appearing in

Section 149 have to be strictly construed as equivalent to `in

order to attain the common object'. It must be immediately

connected with the common object by virtue of the nature of the

object. There must be community of object and the object may

exist only up to a particular stage, and not thereafter. Members

of an unlawful assembly may have community of object up to

certain point beyond which they may differ in their objects and

the knowledge, possessed by each member of what is likely to be

committed in prosecution of their common object may vary not

only according to the information at his command, but also

according to the extent to which he shares the community of

object, and as a consequence of this the effect of Section 149,

IPC may be different on different members of the same assembly.

10

11. `Common object' is different from a `common intention' as it

does not require a prior concert and a common meeting of minds

before the attack. It is enough if each has the same object in

view and their number is five or more and that they act as an

assembly to achieve that object. The `common object' of an

assembly is to be ascertained from the acts and language of the

members composing it, and from a consideration of all the

surrounding circumstances. It may be gathered from the course

of conduct adopted by the members of the assembly. For

determination of the common object of the unlawful assembly,

the conduct of each of the members of the unlawful assembly,

before and at the time of attack and thereafter, the motive for the

crime, are some of the relevant considerations. What the

common object of the unlawful assembly is at a particular stage

of the incident is essentially a question of fact to be determined,

keeping in view the nature of the assembly, the arms carried by

the members, and the behaviour of the members at or near the

scene of the incident. It is not necessary under law that in all

cases of unlawful assembly, with an unlawful common object,

the same must be translated into action or be successful. Under

11 the Explanation to Section 141, an assembly which was not

unlawful when it was assembled, may subsequently become

unlawful. It is not necessary that the intention or the purpose,

which is necessary to render an assembly an unlawful one

comes into existence at the outset. The time of forming an

unlawful intent is not material. An assembly which, at its

commencement or even for some time thereafter, is lawful, may

subsequently become unlawful. In other words it can develop

during the course of incident at the spot co instanti.

12. Section 149, IPC consists of two parts. The first part of the

section means that the offence to be committed in prosecution of

the common object must be one which is committed with a view

to accomplish the common object. In order that the offence may

fall within the first part, the offence must be connected

immediately with the common object of the unlawful assembly of

which the accused was member. Even if the offence committed

is not in direct prosecution of the common object of the

assembly, it may yet fall under Section 141, if it can be held that

the offence was such as the members knew was likely to be

12 committed and this is what is required in the second part of the

section. The purpose for which the members of the assembly set

out or desired to achieve is the object. If the object desired by all

the members is the same, the knowledge that is the object which

is being pursued is shared by all the members and they are in

general agreement as to how it is to be achieved and that is now

the common object of the assembly. An object is entertained in

the human mind, and it being merely a mental attitude, no

direct evidence can be available and, like intention, has generally

to be gathered from the act which the person commits and the

result therefrom. Though no hard and fast rule can be laid

down under the circumstances from which the common object

can be called out, it may reasonably be collected from the nature

of the assembly, arms it carries and behaviour at or before or

after the scene of incident. The word `knew' used in the second

branch of the section implies something more than a possibility

and it cannot be made to bear the sense of `might have been

known'. Positive knowledge is necessary. When an offence is

committed in prosecution of the common object, it would

generally be an offence which the members of the unlawful

13 assembly knew was likely to be committed in prosecution of the

common object. That, however, does not make the converse

proposition true; there may be cases which would come within

the second part but not within the first part. The distinction

between the two parts of Section 149 cannot be ignored or

obliterated. In every case it would be an issue to be determined,

whether the offence committed falls within the first part or it was

an offence such as the members of the assembly knew to be

likely to be committed in prosecution of the common object and

falls within the second part. However, there may be cases which

would be within first part, but offences committed in prosecution

of the common object would be generally, if not always, be within

the second part, namely, offences which the parties knew to be

likely committed in the prosecution of the common object. (See

Chikkarange Gowda and others v. State of Mysore : AIR 1956 SC

731.)

13. In State of U.P. v. Dan Singh and Ors. (1997 (3) SCC 747) it

was observed that it is not necessary for the prosecution to prove

14 which of the members of the unlawful assembly did which or

what act. Reference was made to Lalji v. State of U.P. (1989 (1)

SCC 437) where it was observed that:

"while overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149".

14. This position has been elaborately stated by this Court in

Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC 381

and Shivjee Singh and Ors. v. State of Bihar (SLP (Crl.)

No.1494/2004 disposed of on 30.7.2008).

15. The next plea as noted above related to the acquittal of

number of persons. Stress was laid by the accused-appellants on

the non-acceptance of evidence tendered by PW1 to a large

extent to contend about desirability to throw out entire

prosecution case. In essence prayer is to apply the principle of

"falsus in uno falsus in omnibus" (false in one thing, false in

15 everything). This plea is clearly untenable. Even if major portion

of evidence is found to be deficient, in case residue is sufficient

to prove guilt of an accused, his conviction can be maintained. It

is the duty of Court to separate grain from chaff. Where chaff can

be separated from grain, it would be open to the Court to convict

an accused notwithstanding the fact that evidence has been

found to be deficient, or to be not wholly credible. Falsity of

material particular would not ruin it from the beginning to end.

The maxim "falsus in uno falsus in omnibus" has no application

in India and the witness or witnesses cannot be branded as liar

(s). The maxim "falsus in uno falsus in omnibus" has not

received general acceptance nor has this maxim come to occupy

the status of rule of law. It is merely a rule of caution. All that it

amounts to, is that in such cases testimony may be disregarded,

and not that it must be disregarded. The doctrine merely involves

the question of weight of evidence which a Court may apply in a

given set of circumstances, but it is not what may be called 'a

mandatory rule of evidence. (See Nisar Alli v. The State of Uttar

Pradesh [AIR 1957 SC 366]. In a given case, it is always open to

a Court to differentiate accused who had been acquitted from

16 those who were convicted where there are a number of accused

persons. (See Gurucharan Singh and Anr. v. State of Punjab [AIR

1956 SC 460]. The doctrine is a dangerous one specially in India

for if a whole body of the testimony were to be rejected, because

witness was evidently speaking an untruth in some aspect, it is

to be feared that administration of criminal justice would come

to a dead-stop. Witnesses just cannot help in giving embroidery

to a story, however, true in the main. Therefore, it has to be

appraised in each case as to what extent the evidence is worthy

of acceptance, and merely because in some respects the Court

considers the same to be insufficient for placing reliance on the

testimony of a witness, it does not necessarily follow as a matter

of law that it must be disregarded in all respect as well. The

evidence has to be sifted with care. The aforesaid dictum is not a

sound rule for the reason that one hardly comes across a witness

whose evidence does not contain a grain of untruth or at any

rate exaggeration, embroideries or embellishment. (See Sohrab

s/o Beli Nayata and Anr. v. The State of Madhya Pradesh [1972

(3) SCC 751] and Ugar Ahir and Ors. v. The State of Bihar [AIR

1965 SC 277]. An attempt has to be made to, as noted above, in

17 terms of felicitous metaphor, separate grain from the chaff, truth

from falsehood. Where it is not feasible to separate truth from

falsehood, because grain and chaff are inextricably mixed up,

and in the process of separation an absolutely new case has to

be reconstructed by divorcing essential details presented by the

prosecution completely from the context and the background

against which they are made, the only available course to be

made is to discard the evidence in toto. (See Zwinglee Ariel v.

State of Madhya Pradesh [AIR 1954 SC 15] and Balaka Singh

and Ors. v. The State of Punjab [1975 (4) SCC 511]. As observed

by this Court in State of Rajasthan v. Smt Kalki and Anr. [1981

(2) SCC 752], normal discrepancies in evidence are those which

are due to normal errors of observation, normal errors of memory

due to lapse of time, due to mental disposition such as shock

and horror at the time of occurrence and those are always there

however honest and truthful a witness may be. Material

discrepancies are those which are not normal, and not expected

of a normal person. Courts have to label the category to which a

discrepancy may be categorized. While normal discrepancies do

not corrode the credibility of a party's case, material

18 discrepancies do so. These aspects were highlighted in Krishna

Mochi and Ors. v. State of Bihar etc. [2002 (6) SCC 81] and in

Sucha Singh v. State of Punjab [2003 (7) SCC 643]. It was

further illuminated in the Zahira H. Sheikh v. State of Gujarat

[2004 (4) SCC 158], Ram Udgar Singh v. State of Bihar [2004(10)

SCC 443], Gorle S. Naidu v. State of Andhra Pradesh [2003 (12)

SCC 449] and in Gubbala Venugopalswamy v. State of Andhra

Pradesh [2004 (10) SCC 120].

16. So far as the non-explanation of injury on the accused is

concerned, in Anil Kumar v. State of U.P. (2004 (13) SCC 257), it

was held as follows:

"Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this Court in Ramlagan Singh v. State of Bihar (AIR 1972 SC 2593) prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused

19 persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare krishna Singh and Ors. v. State of Bihar (AIR 1988 SC 863), it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifle and superficial injuries on accused are of little assistance to them to throw doubt on veracity of prosecution case. (See Surendra Paswan v. State of Jharkhand (2003) 8 Supreme 476)."

17. The appeal is without merit, deserves dismissal, which we

direct.

.........................................J. (DR. ARIJIT PASAYAT)

20 ..........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi:

August 20, 2008

21