Rao & Ors Vs. Public Prosecutor, High Court of Andhra Pradeshat Hyderabad
 INSC 651 (7
MUKHERJEE, S. SAGHIR AHMAD
appeal under Section 2 of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 read with Section 379 of the Code of Criminal
Procedure, 1973 is directed against the judgment and order dated December 31,
1992, rendered by the Andhra Pradesh High Court in Criminal Appeal No. 256 of
1991 whereby it reversed the order of acquittal recorded in favour of the seven
appellants herein by the Sessions Judge, Ongole in respect of charges under
Section 148 and 302/149 IPC and convicted them thereunder. The gravamen of the
charges was that on February 26, 1988 at or about 6.30 P.M. the appellants (who
were arrayed as A-1, A-2 and A-4 to A-8 respectively in the trial Court and
hereinafter will be so referred to) along with A-3 (who died during the pendency
of the trial), formed and unlawful assembly in the office of the Mandal Revenue
Officer, Peda Cheriopalli (`P.C. Palli' for short) village armed with deadly
weapons with the common object of committing the murder of Nailuri Thirpathaiah
of village Marella and in furtherance of that common object did commit his
murder. The charges were based on the following prosecution case:
A-1 to A-5, A-6 and A-7 and A-8 were residents of villages Marella, Peda Alavalapadu
and Gudevaripalem respectively. A-1 was the President of Telugu Desam party of
P.C. Palli Mandalam and A-2 to A-8 were his friends and associates. The
deceased, Tirupathayya (P.W. 1) and Brahmayya (P.W. 2) were residents of Marella Village whereas Gangayya (P.W. 3) was a resident of Pothavaram
village. Both these villages were within the jurisdiction of P.C. Palli Mandalam.
Suryanarayan Rao (P.W. 4) was the Mandal Revenue Officer of P.C. Palli Mandalam
at the material time.
Since 1984, two rival political groups were functioning in Marella village, one
led by A-1 and the other by the deceased; and a number of criminal case
instituted by the groups against each other were pending. In February 1987,
elections were held there for the Mandal Praja Parishad in which wife of A-1
was elected the President of the Parishad while the deceased was elected as the
President of Single Window Society of P.C. Palli Manadalam.
the following year, i.e. 1988, February 27, was fixed as the date for filling
nomination papers for the panchayat election. Some of the candidates for such
election were to file, along with their nomination papers, extracts of voters
list and their caste certificates. As such, on February 26, 1988 a number of people came to the office of P.W. 4 to obtain
those documents. One of them was A-1, who approached P.W. 4 for caste
certificate and extracts of voters list for his party members. Following him came
the deceased, P.W. 1, P.W. 2 and P.W. 3 at or about 6 P.M. with a similar request. While they were sitting in the
office of P.W. 4, A-1, who had left this (P.W.4) office in the meantime, came
back and requested P.W. 4 to visit Pothavaram Village to consider the inclusion of about
40 person, who were his followers, as voter. The deceased however insisted that
P.W. 4 could not leave the office without issuing the voters' lists and caste
certificates asked for by him. A-1 then left the office saying he would come
back within half- an-hour and asked P.W. 4 to complete his job in the meantime.
Sometime later (at or about 6.30 P.M.) the seven appellants along with A-3
rushed into the office of P.W. 4 armed with deadly weapons and started beating
A-1 beat him with an axe on his neck, A-2 beat him with a similar weapon on his
right forearm and head.
the others stabbed the deceased indiscriminately with knives resulting in his instantaneous
death. Then they fled away in a jeep and a car.
the following morning P.W. 1 went to Kanigiri Police Station at or about 8.30 A.M. and submitted a written report of the incident
(Ex.P-1) to S.I Sankara Reddy (P.W. 10). On that report P.W. 10 registered a
case (Crime No. 26/88) and sent copies of the report to all concerned. On
receipt of a copy of all report Srihari Rao, Inspector of Police, Kanigiri
(P.W. 11) left for Kanigiri at 9 A.M. He
visited the scene of offence, prepared observation report (Ex.P-2) in the
presence of Kasavarao (P.W. 6) and other mediators, prepared rough sketch of
the scene of offence (Ex. P.15) and seized some articles (M.O. 4 to 10) under a
seizure list (Ex. P-2) P.W. 11 also conducted inquest over the dead body of the
deceased in presence of P.Ws. 1, 2 and 3 and other and then sent the corpse of
Dr. Rammohana Reddy (P.W. 7) Civil Assistant Surgeon, Government Hospital, Kanigiri,
conducted the post-mortem examination on February 28, 1988 and found 45
injuries on the person of the deceased including 40 incised wounds. He issued a
post-mortem certificate (Ex. P-9) opining that the deceased died due to shock
and haemorrhage as a result of the injuries about 36 hours prior to the
course of investigation P.W. 11 seized a jeep bearing No. AAN- 6152 on February 29, 1988 from the garage of one S. Prasad Rao.
He also seized a car bearing registration No. APN-7953 on the same day at 8.00 P.M. In the presence of G. Ramesh, driver of the said
car. On March 7, 1988, P.W. 11 arrested A-8 and on March 31, 1988, A-2, A- 4 to
A-6, A-2, A-4 to A-6 made statements (Ex. P-4 to P-7) respectively) before P.W.
11 pursuant to which he seized two battle axes and two knives (M.Os. 11 to 14
respectively) under a Panchnama (Ex.P-8) in the presence of P.W. 6 and another
witness. After completion of Investigation, successor of P.W. 11 filed the
defence of the appellants was that they were innocent and were falsely implicated
due to political rivalry. A-7 took a further defence of alibi and contended
that at the material time he was working as Village Assistant in Chennupalli
village, which was far off from the place of the incident.
support of their respective cases, the prosecution examined eleven witnesses of
whom P.Ws. 1 to 4 figured as eye witnesses A-7 examined one witness (D.W. 1)
and exhibited some documents to prove his plea of alibi
going through the judgment of the trial Court we find that it put forth the
following reasons for acquitting the appellants:
P.W. 1 to 3 were partisan, interested and procured witnesses;
the non seizure of the hurricane lamp, which was said to be burning at the time
of the incident and with the light of which eye-witnesses claimed to have seen
the incident, by the police during investigation clearly indicated that there
was no such lamp and hence story of identification by its light was untrue.
earliest report that was sent by P.W. 4 to the Police Station which could be
not produced during trial; and, Exhibit P-1 which was brought into existence
during investigation of the case could not be legally admissible as F.I.R. in
view of the provisions of Section 162 Cr. P.C.
the non-examination of the (i) jeep driver in which the accused persons
allegedly fled away, (ii) the village servant through whom P.W.4 claimed to
have sent his report to the Police Station and (iii) other villagers, who lived
in and around the office of P.W. 4, raised an adverse presumption against the
prosecution case suffered from the same infirmity also for non-examination of
the fair price shop dealer, who according to it (the prosecution) was present
just prior to the commission of the offence in the office of P.W. 4;
vi) the alleged confessional statements of some of the appellants were
deliberately concocted and therefore, no reliance could be placed on the
alleged recovery of weapons of offence pursuant thereto.
setting aside the order of acquittal, the High Court first demonstrated that
each of the above reasons was perverse and then, on discussion of the evidence
held, the prosecution succeeded in proving its case beyond all reasonable
doubts and that the plea of alibi raised by A-7 was without any basis
have heard Mr. Lalit and Mr. G. Prabhakar, the learned counsel for the
appellants and respondent respectively and with their assistance gone through
the record. Mr. Lalit submitted that having regard to the fact that the trial
Court detailed and appraised the entire evidence and gave cogent grounds for
acquitting the appellants the High Court was not justified in upsetting the
same merely because another view of the evidence could be taken. In support of
his above contention, Mr. Lalit took us through the finds recorded by the trial
Court to impress upon us that were the outcome of a proper appreciation of the
That in the evening of February
26, 1988, the deceased
met with a homicidal death in the office of PW 4 stands established by
overwhelming evidence on record. We need not however detail or discuss the
evidence on this point for both the Courts below recorded concurrent findings
in this regard and those findings were not challenged before us.
however, the findings of the trial Court in this regard have an important
bearing on its other findings we extract the same:
1 to 3 stated that all the accused entered into the office Room of P.W. 4 and
attacked the deceased with axes and knives. P.W.
4 who is
the Mandal Revenue Officer sitting in front of the deceased thought did not
implicate these accused specifically testified, that ten (10) persons armed
with iron rods attacked the deceased.
regarding the attack on the deceased by the assailants with deadly weapons in
the Office Room of P.W. 4 is proved. Admittedly, the deceased died in the
Office Room of P.W. 4, at Peda Cherlopalli. Peda Cheriopalli will herein after
called as `P.C.
The evidence of P.W. 6 coupled with Ex.P3 Inquest report would show that the
deceased had `homicidal death'. In Column-15 of Ex.P3 Inquest report, the cause
of death of the deceased is mentioned, as `HOMICIDAL'. The evidence of P.W. 7
(Doctor) who conducted the post mortem examination over the dead body of the
deceased and who issued Ex. P9 post-mortem certificate would go to show, that
the deceased had as many as 45 (forty five) external injuries an opined, that
the deceased would appear to have died of shock and haemorrhage, due to
multiple injuries. The date of incident and the place of incident, and the factum
of the death of the death of the deceased in the Office Room of P.W. 4,
instantaneously, are undisputed." (emphasis supplied)
next and the crucial question that falls for our consideration is whether the
appellants caused the above death in the manner alleged by the prosecution. If
the answer given by the trial Court to the above question is found to be based
on a reasonable view of the evidence the impugned judgment has got to be set
aside, for law is now well settled that if two reasonable conclusions can be
reached on the basis of the evidence, the appellate Court should not disturb
the order of acquittal. If, however, it is found that the finding of acquittal
is manifestly wrong leading to miscarriage of justice as has been found by the
High Court the convictions of the appellants have got to be upheld. Keeping in
view the above principles we now proceed to consider evidence of the four eye
witnesses, namely, P.Ws. 1 to 4. Since the incident took place in the office of
P.W. 4 we first take up his evidence for discussion.
P.W. 4 detailed the prosecution case, as narrated earlier except that he did
not name any of the appellants as the miscreants. There is nothing on record to
show that he was interested in the cause of the prosecution or inimically
deposed toward appellants. Indeed, it was not even suggested to him in cross
examination that he was deposing falsely. It can not be gainsaid also that he
was the most natural and probable witness as the incident took place in his
evidence clearly establishes that about 10 miscreants entered inside his office
and one of them dealt a blow on the head of the deceased, who was sitting in
front of him, with an iron instrument. He further testified that when he saw
one of the assailants raising his hand to give anther blow to the deceased he
ran away towards the field to save himself. In cross examination he stated that
one Fair Price Shop dealer obtained a release order for palmolive oil at 6.30
P.M. Culling his evidence we get that the incident took place between 6.30 and
7.00 P.M. and at that time P.Ws. 1 to 3 were also waiting in his room. Besides,
A-1 was also in his room sometime before the incident but left the room saying
that he would be back within half an hour. As noticed earlier, the trial Court
disbelieved the evidence of P.Ws. 1 to 3 on the ground that they did not see
the occurrence, but due to enmity with the party of the deceased concocted a
false story. The unimpeachable evidence of P.W. 4 that P.Ws.
1 to 3
were present at the material time clearly shows that the above finding of the
trial Court is patently wrong.
on this point we may also profitably refer to the earlier quoted passage from
the judgment of the trial Court where, besides other evidence, it relied upon
the evidence of P.Ws. 1 to 3 to conclude that the incident took place in the
office of P.W. 4. Mr. Lalit, however, drew our attention to the statement of
P.W. 4 recorded by a Magistrate under Section 164 Cr.P.C wherein he had stated
that by 7 P.M. on the date of offence all the persons left his office except
the deceased and P.W. 3, and contended that the above statement contradicted
his statement in Court that all the three witnesses (P.Ws 1 to 3) were present.
According to Mr. Lalit P.W. 4's earlier statement negatived the presence of P.Ws.
1 and 2 at the material time. We do not find any substance in this contention;
firstly because the above statement recorded under Section 164 Cr.P.C. only
indicates that P.Ws 1 and 2 were not in his office at 7 P.M. (by which time the
incident was already over) and, secondly because, the earlier statement did not
materially affect the sworn testimony of P.W. 4 that P.Ws 1 to 3 were present
when the incident took place.
regards the comments of the trial Court that the non-seizure of the hurricane
lamp from the office of P.W. 4 materially affected the prosecution case, we can
only say that the same is baseless. Undoubtedly, at the material time P.W. 4
was engaged in issuing copies of voters lists and caste certificates and if by
then, darkness has set in it can be legitimately inferred (leaving aside the
positive evidence of P.W. 4 in this regard) that there would be some source of
light to enable him to perform his job. In that context, it was immaterial
whether the police seized the hurricane lamp, which according to P.W. 4 was
burning inside the office as it was not electrified.
Coming new to the criticism of the trial Court that the failure of the
prosecution to produce the report that was sent by P.W. 4 to the police station
in that very night which according to it was the F.I.R. made its case suspect,
we may first refer to the evidence of P.W. 4 on this point.
testified that after the incident he ran to the field and thereafter went to
the house of the Village servant at 11 P.M. and gave a written report to him with a direction to have over the same
to Kanigiri Police Station. Relying on the above testimony the trial Court held
that that report sent to the police station was the first in point of time and,
therefore, the report that was subsequently given to the police station by P.W.
1 (Ex. P-1) would be inadmissible in evidence as F.I.R. in view of the
provisions of Section 162 Cr.P.C. This aspect of the matter was dealt with by
the High Court in extenso and the finding of the trial Court was taken
exception to, with the following comments:- "The learned Judge has
extracted the evidence of P.W. 4 to support his contention that Ex.P-1 is hit
by Section 162 of the Code and in fact there was an earlier report given by
P.W. 4 on record. But the learned Judge has not correctly quoted the relevant
evidence of P.W. 4 and only relied upon part of it. It is true that P.W. 4 in
his evidence stated that he sent a report on the night of 26.2.1988 at about 11 P.M. through the village servant to Police Station, Kanigiri.
Regarding the receipt of Ex. P-1, the evidence of P.W. 10, S.I of Police, Kanigiri
during the relevant period, read as follow :- `Prior to P.W. 1 giving Ex.P-1 to
me, I had no information about this crime. None of the persons acquainted with
this crime, appeared before me prior to Ex. P.1..... After registering this
crime and I issued Ex.P-14 F.I.R. I received a report from P.W. 4 through
statement of P.W. 10 clearly shows that Ex.P-1 was the report received by P.W.
10 at the earlier point of time regarding this crime and consequently P.W. 10
registered the same as F.I.R. and before P.W.
receiving Ex.P-1, they did not have any information regarding this crime. His
evidence is also specific to show that after P.W. 10 received Ex.P-1 and after
P.W. 10 issued Ex.P-14 F.I.R basing on Ex.P-1, he received another report from
P.W. 4 through village servant and probably he has not taken any action thereon
since the same was hit be section 162 of the Code.
what was received by P.W. 10 regarding this crime at the earliest point of time
was only Ex. P-1 which P.W. 10 correctly registered as F.I.R. and set the law
Apart from the above comments of the High Court, with which we are in complete
agreement, we find that the evidence of P.W. 10 clearly shows that the repot
sent by P.W.4, through the village servant, was received by him only after
investigation was taken up. In other words, the report sent by P.W.4 would be a
statement recorded under Section 162 Cr.P.C and consequently it could not be
admitted in evidence. This aspect of the matter can be viewed from another
angle also. Having regard to the fact that P.W.4 did not name any of the
assailants, suppression of the report sent by him to the Investigating Agency
did not and would not have helped the prosecution in any way. In other words,
the prosecution would not have been benefited in any way by suppressing the
report that was made by P.W.4, more so when, the fact that the incident took
place inside the office of P.W.4 in the evening of February 26, 1988 was not
challenged by the defence. Judged in that perspective even if that report was
produced and treated as F.I.R. the prosecution case would not have been
impaired in any way much less on the ground canvassed by the trail Court.
That bring us to the evidence of P.Ws.1,2 and 3. All of them claimed to have
accompanied the deceased who, according to them, was the leader of the Congress
party of village Marella, to the office of P.W.4 on the fateful evening to
obtain caste certificates and copies of voters' list of Marella and Pothavaram
villages so as to enable them to file nominations on the next day for the Gram Panchayat
elections. As their such claim is fully supported by P.W.4, whom we have no
reason whatsoever to disbelieve, it must be said that they were the most
natural and probable witness to the incident. However, their evidence has to be
examined with utmost care and caution as they belong to the rival group of the
appellants and, hence, are partisan witnesses.
narrating the incident they stated that while four of them were inside the
office of P.W.4, A-1 came there and asked P.W.4 to go to Pothavaram to verify the
voters' lists. The deceased, however, insisted that only after furnishing the
lists and certificates for which they had come, P.W.4 could go to Pothavaram.
A-1 then went out of the room. Sometime later all the appellants and A-3
entered the room of P.W.4, and A-1 dealt two successive blows, one on the head
and another on the neck of the deceased. A-2 then beat him with an axe on the
right forearm and the others started stabbing the deceased with knives. At that
stage all three of them ran away for fear of their lives. While P.Ws.
3 first went towards the road and then the fields, P.W.2 ran to his village. P.Ws.
1 and 3 next stated that on the following morning they reached Kanigiri by
foot, got a report of the incident written by a person of Cheriopalli whom they
met there (Kanigiri) and then to the police station at or about 8.30 A.M. and
handed over the report (Ex.P-1) to S.I. Sankara Reddy (P.W. 10). It is their
further evidence that accompanied by the Circle Inspector of Police (P.W. 11)
they came to the scene of occurrence and in their presence he (P.W. 11) held
have carefully gone through the evidence of the above three witnesses and found
that except some minor contradictions, the defence could not elicit any answer
to discredit them. Besides, the F.I.R. fully corroborated the testimonies of P.Ws.
1 and 3. It was, however, contended by Mr. Lalit that the unusual delay of 14
hours in lodging the F.I.R. clearly indicated that P.Ws. 1 and 3 concocted a
story to implicate the appellants, who admittedly were their political rivals.
We do not find any substance in the above contention of Mr. Lalit. The evidence
of P.Ws. 1 and 3 clearly indicates that they spent the night in the fields,
then walked the entire distance to kanigiri which is 10 miles got the report
written there and lodged it at the police station at 8.30 A.M. Having seen the
ghastly murder being committed by their rivals, it was too much to expect of P.Ws.
1 and 3 to rush to the police station, for reasonable apprehension to their
lives in the event of their taking such a step could not be excluded.
Obviously, for that purpose P.Ws. 1 and 3 took shelter in the fields in the
darkness and proceeded to the police station in the small hours of the
following day. We are, therefore, of the opinion that there was no avoidable
delay in lodging the F.I.R. On the contrary, in our view, it was lodged at the
Another submission that was made by Mr. Lalit was that thought P.Ws 1 to 3
claimed to have seen A-1 to be one of the assailants, P.W. 4, who spoke of
A-1's earlier presence in his office, did not mention that A-1 was one of the
miscreants. This contention of Mr. Lalit is also unmerited.
the sequence of events we get that the trouble originated when A-1, who was the
leader of the appellants group requested P.W. 4 to visit Pothavaram village
while the deceased insisted that the voters list and caste certificates sought
for by him should be handed over before A-1's request could be entertained.
Immediately thereafter A-1 left the place obviously to call his associates and
to come fully prepared with arms. It seems to us that lest it be said that he
was supporting either of the parties, P.W. 4 did not name A-1 and for that
matter any of the miscreants.
find no reason to disbelieve the evidence of P.Ws 1 to 3 that A-1, the leader
of the group, started the assault, followed by the other appellants.
earlier noticed, the trial Court discarded the prosecution case also for
non-examination of the driver of the jeep in which the appellants fled away,
the village servant and the persons present nearby, more particularly, the Fair
Price Shop dealer. The High Court dealt with this aspect of the matter in
details and made the following observation with which we are in agreement:
is the case of the prosecution that the accused sped away in a jeep after the
offence. It is the submission of the learned counsel for the accused that non-
examination of the driver of the said jeep speaks against the prosecution. The
jeep driver is not an eye witness to the crime and consequently he could not
have spoken anything crime proper. At the most he would have stated that the
accused has travelled in his jeep soon after the offence. That evidence would
have been an additional piece of evidence to strengthen the prosecution case.
the question which we have to consider is whether the trial Judge is assuming
that the non- examination of the jeep driver has the effect of displacing the
evidence of eye witnesses about what they actually witnessed. We are of the
opinion that the trial Judge was wrong in his assumption that the jeep driver
was a material witness. Consequently, inference adverse to the prosecution
could not have been drawn from the non- examination of the driver of the jeep.
to 4 in their evidence stated that while P.W.s 1 to 3 and the deceased came to
the office of P.W. 4 the fair price shop dealer and some persons were coming
and going to the room of P.W. 4, but there is no evidence to show that those
persons were present when the occurrence took place. Accordingly to the
prosecution, P.Ws. 1 to 4 along were present when the offence took place and
witnessed the occurrence. Neither the fair price shop dealer nor anybody else,
who visited the office of P.W. 4 earlier were present at the time of the
offence. In view of that, non- examination of the fair price shop dealer or other
who visited the office of P.W. 4 in the evening hours on the fateful day, is of
no consequence and inference adverse to the prosecution cannot be drawn from
regards the non examination of the village servant to whom, P.W. 4 handed over
a written report of the incident for onward transmission to the police station,
we may reiterate that the report did reach the hands of the Police, but only
after the F.I.R. was lodged and therefore, there was no need for the
prosecution to examine him.
far as the alibi of A-7 is concerned both the Courts below dealt with the
evidence given in support thereof at length and found the same unacceptable.
Indeed, Mr. Lalit also did not advert to this aspect of the matter.
Having carefully gone through the evidence of the four eye witness, the F.I.R.
and the medical evidence which fully corroborates the ocular version, we are of
the opinion that the prosecution has been able to prove its case beyond all
reasonable doubts. We need not therefore, go into the question whether the
finding of the trial Court regarding alleged recovery of weapons pursuant to
the statements of some of the appellants is perverse or not.
For the foregoing discussion, we do not find any merit in this appeal and
dismiss the same.