Harijana Narayana & Ors vs The State Of Andhra Pradesh

This appeal has been filed by the six appellants (Accused Nos.1, 3 to 7),

aggrieved against their conviction concurrently recorded by both the courts below

for charges under Sections 148 and 302 read with Section 149 of Indian Penal

Code (for short `IPC'), while holding them not guilty of the charge under Section

147, IPC, for which three years R.I. under Section 148 and life imprisonment in

addition to payment of fine with a default clause therefor for the other offence,

came to be dismissed. Accused No.2 was said to have died during the pendency

of the proceedings in the Trial Court itself and the proceedings held to have

abated against him on 5.7.1996.

The substance of the prosecution case is that there were ill-feelings

between the accused and the deceased since the year 1985 when the accused

in the month of August 1985 seems to have lodged a complaint against the

deceased-Papi Reddy and his son, Bhasker Reddy (PW-4), on which a case in

Crime No.110/85 under Sections 452, 341, 365, 322 read with Section 149, IPC,

and Section 7(1)(d) of the PCR Act was registered. On 7.10.1987, the date of

occurrence, at about 9.15 a.m., the deceased and PW-4, his younger son, were

said to have been waiting at Pragatoor Bus Stand to go to Alampur to meet their

Advocate in connection with a case pending against them. The Road Transport

Corporation Bus seems to have arrived at 9.30 a.m. and after the passengers got

down, the deceased was about to board the Bus, when A-6 and A-7 seem to

have pushed aside the deceased while A-1 to A-5 picked up Axes and Spears,

which were said to have been kept in the nearby Barber Shop. A-1 was alleged

to have axed on the neck below the right ear of the deceased and A-3 axed on

the right jaw, while A-2 axed on the neck of the deceased. A-4 and A-5 were

said to have pierced with Spears on the right side of the abdomen. On hearing

the hue and cry, PW-1 and PW-4 were said to have rushed to the spot and found

the deceased sinking. The body thereupon seems to have been shifted to the

house of the deceased, nearby but the victim immediately thereafter died. PW-1,

one of the sons of the deceased, went to the Police Station and lodged a

complaint with PW-10, who registered the same as Crime No.103/87 against the

accused under Sections 147 and 302 read with Section 149, IPC. A-1 to A-3 are

said to be brothers and A-5 to A-7 are the brothers-in-law of A-1 to A-3. The

remaining accused were said to be related to each other in one way or the other.

PW-1 and PW-4 are the sons of the deceased, while PW-2 and PW-3 are said to

be close associates of the deceased. Both the parties belonged to the same

Village. They and their associates also seem to have been already involved in

one or other criminal cases. The accused were said to have formed themselves

into an unlawful assembly, armed with deadly weapons like Axes, Spears and

Sticks, etc. with the common object to commit the murder of Papi Reddy when he

arrived at the Bus Stand. The accused joined together and indiscriminately

attacked the deceased causing severe injuries. During the course of

investigation, PW-10 reached the house of the deceased and conducted in the

presence of PW-6 and PW-7 inquest over the dead body of the deceased and

sent the same to the Government Hospital, Alampur, for post mortem

examination where the Doctor (PW-9), who conducted the post mortem

examination, gave his opinion (Ext. P.15) that the death was due to shock and

haemorrhage on account of the multiple injuries sustained by the victim. He

seized M.Os. 8 to 11 from the house of the deceased. Statements of PW-2 to

PW-4 and one Mala Chinna Krishnaiah were said to have been also recorded.

Ext. P.4, Panchnama of the scene of occurrence, was also said to have been

made and M.Os. 1 and 2 as well as blood stained earth were seized from the

place of occurrence. PW-11, Circle Inspector of Police, also joined the

investigation and recorded statements of PW-5 and PW-11. Statements were

also said to have been recorded from the accused pursuant to which M.Os. 3 to

7 were said to have been discovered. On completion of the investigation, charge

was laid for offences under Sections 147, 148 and 302 read with Section 149,

I.P.C. The prosecution examined PW-1 to PW-11 and placed reliance upon Ext.

P.1 to Ext. P.18 and M.Os. 1 to 11 to bring home the guilt of the accused. The

defence of all the accused was of total denial by which it was claimed that they

have been falsely implicated in this case. On conclusion of the trial, the Accused

1, 3 to 7 were examined under Section 313 of the Criminal Procedure Code

explaining the incriminating circumstances and material against them, which, as

noticed earlier, was denied by the accused. They did not choose to adduce any

oral evidence on their behalf, but were content to rely upon Ext. D.1, the relevant

portion in Section 161 Criminal Procedure Code, statement of PW-4.

On a careful consideration of the materials on record, the learned

Sessions Judge found A-1 and A-3 to A-7 to be guilty of the offences under

Sections 148 and 302 read with Section 149, IPC, though they were held not

guilty for the charge under Section 147, IPC.

The plea on behalf of the accused that they were involved and implicated

falsely taking advantage of the prior enmity; that the evidence of PWs were said

to be not only of close relatives and associates of the deceased and, therefore,

interested and that the independent witnesses, who were available on the spot,

the nearby houses including some one from the Barber shop where the weapons

were said to have been kept before being handled as well as the Driver and

Conductor of Bus, etc. were deliberately withheld and not examined, did not meet

with the favourable appreciation or acceptance in the hands of the learned Trial

Judge. There was no positive claim or proper information to show that anyone in

the nearby houses actually witnessed the occurrence and, therefore, the routine

plea of the nature did not appeal to the Courts below for being countenanced.

The alibi pleaded on behalf of A-7 could not be substantiated by proper evidence

and PW-5 with whom he was said to be working, did not also support the claim of

the said accused in this regard. Similarly, the claim of the Accused 1, 3, 5 and 6

that they were present on the fateful day and the relevant point of time at

Alampur to attend the Special Mobile Court camping on that day, was not

supported by any acceptable or concrete material and came to be also rejected.

As far non-examination of the other independent witnesses, the learned Sessions

Judge meticulously considered each one of them and found that with the criminal

track record of the parties on either side and the sensitiveness in the area and

tense relationship prevailing between the respective parties seems to have

deterred any independent witnesses to volunteer to give evidence and that,

therefore, the non-examination of such witnesses other than those examined was

held to be not either a lapse or wanton omission on the part of the prosecution.

The materials on record were held to be sufficient to substantiate the case of the

prosecution that the accused forming into an unlawful assembly were not only

found rioting armed with deadly weapons in a public place, but also committed

the murder of the deceased.

Before the High Court also, the same line of defence was pursued on

behalf of the accused but the learned Judges of the Division Bench seem to have

been also very much satisfied with the quality as well as the quantity of the

evidence, their reliability and genuineness for their acceptance and overruling the

contentions on behalf of the appellants, the findings of fact recorded by the Trial

Judge and the consequent conviction of the accused came to be affirmed. The

High Court also found that despite the misunderstandings and animosity between

the parties, there was no concrete or justifying reasons to disbelieve the

evidence let in, particularly that of PW-2, PW-3 and PW-4, which stood

strengthened by the medical opinion as contained in the post mortem certificate

(Ext. P.15) and the deposition of PW-8, the Doctor, who conducted the post

mortem examination.

The learned Senior Counsel appearing on behalf of the appellants, while

pursuing the same line of defence as was taken before the courts below,

contended that the evidence of PWs, who were either close relatives or close

associates of the deceased, cannot be trusted and solely relied upon to convict

the accused and that the prosecution having withheld all independent and

impartial witnesses, who might have been available on the spot, failed to act in a

fair and just manner resulting in grave injustice to the accused and, therefore, the

case in its entirety ought to have rejected as a false one. It was also urged that

the plea of alibi and presence of A-1, A-3, A-5 A-6 and A-7 at different places

other than the place of occurrence as pleaded on their behalf, ought to have

been sustained and that they could not be involved, in any manner, with the

occurrence or held responsible for the death of the victim. It was also contended

on behalf of the appellants that the evidence of PW-5, on the face of it, seems to

be tutored one and a parrot like repetition of the version of the incident belies

their credibility and they could not be the basis for a conviction at all for such

serious offences as those under consideration.

The learned counsel for the respondent-State, while adopting the

reasoning of the courts below, contended that the courts below have given

cogent and convincing reasons to overrule the objections on behalf of the

defence and nothing could be said to discredit those reasons and the

conclusions concurrently recorded on the basis of overwhelming materials on

record, do not call for interference in this appeal under Article 136 of the

Constitution of India.

We have carefully considered the submissions of the learned Senior

Counsel on behalf of the appellants. Our attention has been drawn extensively

to the evidence on record in support of the plea raised on behalf of the

appellants. The evidence, in each case, has to be considered from the point of

trustworthiness and from the angle as to whether it inspires confidence in the

mind of the Court to accept and that the question of credibility and reliability of a

witness has to be decided with reference to the way he fared in cross-

examination and the nature of impression created in the mind of the Court.

There is no such universal rule as to warrant rejection of the evidence of a

witness merely because he/she was related to or interested in the parties on

either side. In such cases if the presence of such a witness at the time of

occurrence is proved or considered to be natural and the evidence tendered by

such witness is found in the light of the surrounding circumstances and

probabilities of the case to be true, it can provide a good and sound basis for

conviction of the accused. Where it is shown that there is enmity and the

witnesses are near relatives too, the Court has a duty to scrutinize their evidence

with great care, caution and circumspection and very careful too in weighing such

evidence. In a situation like the one on hand where there are factions based on

communal disharmony and the factions involved in this case are on warpath with

each other – it would not only be idle but next to impossibility to secure the

evidence of any independent witness and no one such would be prepared to

undertake to risk themselves by coming as witnesses. All these aspects have

been meticulously and elaborately considered by the learned Trial Judge in its

proper perspective and convincing, cogent and sound reasons have been given

to accept and act upon the evidence of PWs-2, 3 and 4 in this case. The

reasonableness of the approach, appreciation of evidence and the ultimate

conclusions arrived at by the Trial Court also seem to have had acceptance in

hands of the High Court. Nothing concrete has been pointed out or substantiated

to oblige us to either discredit or reject their evidence in this case or interfere with

the conclusions arrived at by the courts below.

Every case should depend, ultimately, on the facts and circumstances of

the particular case. The case of the prosecution should be judged taking into

account the overall circumstances of the case, with a practical, pragmatic and

reasonable approach in the matter of appreciation of the evidence let in to drive

home the guilt of the accused. The decisions reported in Shamu Balu

Chaugule Vs. State of Maharashtra [(1976) 1 SCC 438] and Dharam Singh &

Ors. Vs. State of Punjab [(1993) Supp. (3) SCC 532] turned on the peculiar

facts actually proved in those cases, and the observations made therein cannot

be taken dehors the facts held substantiated in those cases. Those decisions do

not, in our view, purport to lay down any general principle of law for universal

application despite the fact situation of the particular case concerned and,

therefore, could be of no assistance for the appellants in this case. The plea of

alibi, in this case on hand, came to be rightly rejected by the learned Sessions

Judge in the absence of any credible or concrete proof of their absence from the

place of occurrence and the same is not shown to be either unreasonable or

incredible and in any manner incapable of acceptance. The two other decisions,

one of the High Court and another of this Court, relied upon for the appellants

also have no relevance to the facts on record in this case. It is only when the

Courts are unable to sift the grain from the chaff and finds that the truth and

falsehood so inextricably got mixed together in a given case and that it will be

really difficult to separate them, the question of rejection of such evidence may

arise. The decision of the Orissa High Court relied upon also turned on the facts

of the case only. Merely because some of the eyewitnesses narrated the

occurrence relating to the injuries caused in similar manner, that could not itself

be a ground to reject their evidence in toto, if otherwise credible, trustworthy and

creates confidence. The prosecution in this case, at any rate, could not be

legitimately or properly accused of having withheld any material / independent

witnesses with any unfair motive and the reasons assigned by the learned Trial

Judge succinctly and sufficiently answers this grievance. Though an attempt has

been made to impress upon us that the evidence of PWs-2, 3 and 4 are in a

parrot like repetition and does not give an impression that they are natural or

speaking the truth of what they actually saw, we are not impressed by such

criticism of the evidence merely because while describing the injuries caused

alone, the same is found to have been expressed in a particular order or manner.

A careful reading of the rest and entirely of the evidence does not give any such

impression and the only portion pointed out in this connection from their evidence

may be due to the manner of recording the version given by the witnesses or the

method of translation, and not otherwise.

On going through the totality of the evidence, we have no hesitation to

affirm the well-merited findings concurrently recorded by both the courts below.

That all the accused were found to have acted in concert and attacked the

deceased armed with deadly weapons likely to cause death, when used as a

weapon and that they formed themselves into an unlawful assembly with the

common object of doing away with the deceased is found amply established and

sufficiently proved by substantive and acceptable evidence. The murder, though

of a person with a mixed record, seems to be a calculated one and the manner in

which it was got executed by all the accused acting in unison in a preplanned

manner to achieve their design, has been rightly held to answer the definition of

murder by the courts below, punishable under Section 302 of the IPC read with

Section 149, IPC. We find no justifiable reason whatsoever to draw any different

conclusion than those arrived at concurrently by the courts below, on the

evidence on record.

The appeal, therefore, fails and shall stand dismissed.