Baddi Venkata
Narasayya & Ors Vs. The State of Andhra Pradesh [1997] INSC 845 (24
November 1997)
M.K.
MUKHERJEE
ACT:
HEADNOTE:
THE
24TH DAY OF NOVEMBER, 1997 Present:
Hon'ble
Mr. Justice M.K. Mukherjee Hon'ble Mr. Justice K.T. Thomas S.Muralidhar, Adv. for
S. Ravindra Bhat, Adv. for the appellants Ms. K. Amreshwari, Sr. Adv., G. Prabhakar,
and V.R. Anumolu, Advs. with him for the Respondent
The
following Judgment of the Court was delivered:
Thomas,
J.
In
this case of an organised mass attack unleashed on some unarmed victims 4
persons were killed and 17 were injured, many of them grievously. Police
charge-sheeted 64 persons as accused in this case, but the Sessions Court
convicted only 45 among them for various offences, common of which is rioting
with deadly weapons. Among those accused who were convicted of murder, the
trial court sentenced first accused to death and others who were convicted
under Section 302 IPC with or without the aid or Section 149 IPC were sentenced
to life imprisonment. Shorter terms of imprisonment were awarded to those
accused who were convicted of lesser offences. Out of the 45 convicted persons
one died after trial court judgment and so the High Court of Andhra Pradesh
heard the appeals filed by the remaining 44 persons. A Division bench of the
High court confirmed the conviction and sentence as against 35 of them, except
that the sentence of death passed on t he first accused was reduced to
imprisonment for life. This appeal has been filed by the aforesaid 35 persons
after obtaining special leave.
The
case put forward by the prosecution as against the appellants is, in short,
this: A feud developed among the members of Yadav community in Chennapuram
village. One division was headed by first accused (Baddi Venkata Narasayya )
and the other faction was led by Baddi Mallesu (one of the person killed). The
acrimony which existed as between the two factions mounted up day by day and
the police had to resort to proceedings under Section 107 of the Code of
Criminal procedure against persons belonging to the rival groups, besides
registering other criminal cases against some of them. But those steps did not
abate the intensity of bitterness between members of the warring groups. Those
belonging to the group led by Baddi Mallesu perched themselves in a Harijan
colony at Chennapuram village and they thought that they were safe from the
attack of the other faction. But such hopes were belied when all the accused
marched to the Harijan colony armed with deadly weapons, such as spears,
choppers, sticks, stones etc., during the morning hours of 30-10-1000 and made
a massive attack on the persons who had sheltered themselves in different
houses situated in the Harijan colony. What followed thereafter was a terribly
violent mayhem. When the assailants retreated from the field four dead bodies
and a large number of brutally mutilated persons were lying on the ground.
In the
trial court prosecution examined altogether 49 witnesses which list included
injured persons and other eye witnesses. Trial court and the High Court have
made detailed evaluation of the evidence and came to the finding that there was
an unlawful assembly consisting of the convicted persons the common object of a
number of them was to kill the members of the rival faction.
After
hearing learned counsel on both sides we are not persuaded to re-evaluate the
evidence in view of the concurrent findings reached on the crucial points
regarding formation of unlawful assembly and their common object.
Learned
counsel for the appellant, however, submitted that in view of the large number
of victims and assailants involved in this occurrence it is not expedient to
confirm the conviction against those accused whose participation in the action
has not been supported by the reliable testimony of at least two witnesses.
We too
are of the opinion that on the facts and evidence in this case and on account
of the large number of assailants and victims involved in the case it would be
a prudent exercise to follow the ratio evolved by this Court in Masalti vs. The
State of Uttar Pradesh, AIR 1965 SC 202, which was reiterated by this Court in
later decisions including the recent one [Binay Kumar Singh vs. The State of
Bihar 1997 (1) SCC 283]. We extract below the said ratio:
"
Where a criminal court has to deal with evidence pertaining to the commission
of an offence involving a large number of offenders and a large number of
victims, it is usual to adopt the test that the conviction could be sustained
only if it is supported by two or three or more witnesses who give a consistent
account of the incident." Learned counsel for the appellants contended
that before the said formula is applied in this case, a little scrutiny of
evidence is necessary for fixing up the reliability of the testimony of eye
witnesses in so far as the accused are concerned. Learned counsel submitted
that though some of the accused were identified in the trial court by more than
one witness evidence of some of those witnesses is unreliable and hence such
evidence must be excluded in which event those accused would also get the
benefit of doubt arising thereby.
A-4 (Matta
Kontolu), A-5 (Baddi Chinnavadu), A-8 (Baddi Venkatappadu) were identified in
the trial court by three witnesses, PW-5, PW-6 and PW-15. But PW-6 did not
mention the presence of those accused when he was questioned by the police
during investigation and the testimony of PW-15 was disbelieved by the trial
court due to a lot of material contradictions. We agree with the learned
counsel for the appellants that in such circumstances no reliance shall be
placed on the evidence of PW-6 and PW-5 and what would then remain is the
solitary evidence of PW- 5 in regard to those three accused. We are inclined to
give the benefit of doubt to A-4, A-5 and A-8.
A-9 (Beesingi
Narayudu) and A-12 (Matta Mallesu) were identified by PW-10, PW-11, PW-12 and
PW-15 in the trial court but the Sessions judge has accepted the evidence of
PW-12 alone among them and rejected the rest. In that situation A-9 and A-12
also would get the same benefit.
Though
A-13 was identified by PW-11 and PW-12 the said accused too would be entitled
to the benefit in view of the rejection of the evidence of PW-11.
Similar
view can be adopted in case of A-33 (Matta Gaviresu) who was identified in the
trial court by PW-27 AND PW-28 because the evidence of PW-28 was discredited on
the crucial aspect concerning his presence at the spot, by contradicting him
with the statement recorded by the police under Section 161 of the Code of
Criminal Procedure. By allowing the above mentioned accused to pass out through
the route to acquittal on the strength of the ratio of "two witnesses
formula" the following accused cannot be convicted on the evidence in this
case:
A-4 (Matta
Kontolu), A-5 (Baddi Chinnavadu), A-8 (Baddi Venkatappadu), A-9 (Beesingi Narayudu)
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