Goura Venkata
Reddy Vs. State of Andhra
Pradesh [2003] Insc
575 (19 November 2003)
Doraiswamy
Raju & Arijit Pasayat. Arijit Pasayat,J
Appeal (crl.) 672-674 of 2003
Different
political ideologies may be followed in a democratic set up; that is but natural.
But when differences become physical and lead to loss of life by violent acts
it reflected sadly on the political maturity of people and the citizens at
large. The present case, as the prosecution version shows, is one of those
large number of instances where physical violence has led to loss of lives of
two persons.
The
appellants who faced trial along with 11 others and two deceased persons, and
the prosecution witnesses belong to different political parties. The difference
between them is said to be long- standing on account of political rivalry, and
it reached its crescendo on 18th October, 1995 and 19th
October, 1995. On the
first of the dates, relative of one political leader was allegedly kidnapped
and his dead body was found later on the next day i.e. 19th October, 1995 to which the present case relates.
The two deceased persons, namely, Ambi Reddy and Chinna Ramasubbaiah
(hereinafter referred to as D-1 and D-2) along with PWs 1 to 4 and two others
were traveling by four motorcycle with two occupants in each. As the
prosecution version shows the 20 persons way laid them. D-1 and D-2 were
dragged out of the motorcycle and at the instigation of A-1 Goura Venkata Reddy
and one M. Venkateswara Reddy others picked up stones from the way side and
threw them causing grievous injuries. After causing injuries,
assailants-accused persons went away. The occurrence took place at 11.45 a.m. The accused persons were traveling in a Jeep and two
lorries. The injured persons were taken to the hospital; one of them (D-2) was
declared dead at the first hospital where he was taken. The doctor, however,
advised the relative to take the other deceased D-1 to another hospital for
better treatment.
At the
said hospital in spite of the best efforts his life could not be saved. The
first information report was lodged around 1.00 p.m.
Investigation
was undertaken and on completion thereof, the charge sheet was placed. It is to
be noted that during investigation the name of M. Venkateswara Reddy was
deleted pursuant to the directions of the Sub Divisional Police Officer. As
such in total 19 accused persons were charge sheeted. However, the case of one
was separated and 18 accused persons were tried. Out of them A-1 to A-8 were
convicted, and the rest were acquitted. A-1 was convicted for offence
punishable under Section 302 read with Section 109 of Indian Penal Code, 1860
(for short the 'IPC'). A-2 to A-8 were convicted for offences punishable under
Sections 302 and 147. A-1 was sentenced to undergo imprisonment for life, while
A-2 to A-8 were similarly sentenced for the offence punishable under Section
302 and two years for offence punishable under Section 147. The State preferred
an appeal before the High Court of Andhra Pradesh questioning the acquittal of
the 10 persons and for non-conviction of A- 1 under Section 147 and for such
non-conviction under Section 148 in relation to A-2 to A-8. The convicted
persons also questioned correctness of the their conviction. The High Court by
the impugned order upheld the acquittal of the 10 accused persons. Appeal
relating to non-conviction under Section 148 so far as A-2 to A-8 are concerned
was also dismissed. In case of A-1 conviction was made under Section 147 and by
a modified order sentence of two years was imposed. The convicted accused
persons have preferred these appeals questioning the common judgment rendered
by the Division Bench of the Andhra Pradesh High Court. As the appeals related
to the same judgment, they are taken up together for disposal.
According
to Mr. Sushil Kumar, learned senior counsel appearing for the appellants, the
judgments of the trial Court as well as of the High Court cannot be maintained
on more grounds than one. There was delay in lodging the complaint. In the
first information report only 7 names were given out of which name of M. Venkateswara
Reddy against whom specific overt acts were attributed by the assailants was
deleted from the accused persons. PWs 1 to 4 did not suffer any injuries, which
is unnatural. There was no pre-meditation to commit any offence; as is evident
from the fact that none of the accused persons were armed. In respect of
accused Jaidip the alibi was accepted. Only partisan related and interested
witnesses have been examined. It was stated in the first information report
that 7 named persons and others whose names were not indicated were the
assailants. In respect of A-6 it was stated that his presence came to be known.
Obviously, PW-1 who was an eyewitness included his name in array of other
accused persons. Though his claim in Court is to have seen the occurrence, in
the first information report a different picture was given and this renders his
presence improbable.
There
were serious laches in investigation and 19 stones pieces were collected as if
only 19 stones were lying. This was obviously cooked up to be in line with 19
injuries found on the bodies of the two deceased persons. The medical evidence
i.e. the post mortem report shows that at the time of post mortem it was
noticed that the stomach of each of the deceased was empty. It is improbable
that their stomach would be empty at the point of time the occurrence is
claimed to have taken place. It is the defence version that two dead bodies
were found on the way, it was not known who were the assailants and because of
hostility the names of the appellants have been incorporated. The evidence of
PW-1 to PW-4 is highly unreliable and is contradictory in terms. It was further
submitted that there was a police station nearby at which report could have
been given by those who had not accompanied the injured persons to the
hospital. The trial Court and the High Court have not considered the case of
the accused in the proper perspective. In any event Section 302 IPC has no
application.
In
response, Mrs. K. Amreshwari, learned senior counsel, appearing for the State
submitted that concurrent findings of fact have been recorded by the trial
Court and the High Court. After lengthy cross- examination in great detail,
nothing infirm has been pointed out by the accused persons. Merely because one
stone each was thrown, that cannot rule out application of 302 IPC, as was
submitted by learned counsel for the appellants. A-1 is liable to be convicted
under Section 109 also because at his instigation the other assailants' acts
were done thereof.
There
was no delay in lodging the first information report. The occurrence, according
to prosecution, took place at 10.45 a.m. The
immediate reaction of the witnesses who were present would be to save the lives
of the injured persons. It is clear from evidence that they were not dead
immediately. Therefore, their conduct in trying to shift the injured persons to
the hospital for treatment is natural and normal.
It is
pointed out that everybody's mind would be focused on how best treatment can be
provided to save the lives. The death of one of the deceased persons was around
12.00 noon. High Court had rightly noted that
the witnesses would have taken sometime to regain composure and to prepare
first information report. When these normal circumstances are taken note of, it
cannot be said that there was any delay in lodging the first information
report. So far as absence of injury on the witness is concerned it has come in
evidence that A-1 instigated the accused persons to assault the witnesses who
were present and then they ran away. In this background the absence of injury
on them cannot be a suspicious circumstance. Merely because the name of M. Venkateswara
Reddy has been deleted, that cannot be a ground to give benefit to the accused
persons. Even though the manner in which the name of said person was deleted
raises the eyebrows, some explanation has been offered with the acceptability
of which we are not concerned in the present appeals.
That
brings us to the other crucial aspect i.e. whether the presence of A-6 at the
time of occurrence is made out and whether the case falls under Section 302 IPC
in the factual ground indicated. So far as A-6 is concerned, in the first
information report the PW-1 has stated as follows:
".....One
Raghu Ramaiah of Cherukucherla was also known to have participated in the
occurrence along with Goura Venkata Reddy." Clarificatory statement
accompanied the first information report which was lodged at 1.00 p.m. goes to show that PW-1 was not sure of the presence
of A-6. But in the FIR and statements of other witnesses, name of A-6 clearly
finds place. PW-1 has explained how the confusion has arisen and Courts below
have accepted it. There were twenty assailants.
Merely
because one witness has entertained some doubt and was not sure of his presence
and has heard about it, same cannot be a ground to doubt veracity of evidence
tendered by PWs 2 to 4.
Though
it cannot be said as a rule of universal application that if one stone is
thrown causing injuries, Section 302 IPC is ruled out, we find from the
doctor's evidence that all injuries found on the bodies of the two deceased
persons individually were not held to be fatal. As the prosecution version goes
to show 19 persons including the 10 who were acquitted had thrown stones.
Looking to the size of the stone as described in the documents on record, they
do not appear very big. Here again, no general rule can be laid that small
stone cannot cause any injury leading to death punishable under Section 302
IPC. It would depend upon the facts of each case. In the case at hand it cannot
be said that any particular injury was intended which would result in death.
But the accused persons can certainly be attributed with the intention of
causing death or causing such bodily injury as is likely to cause death.
Therefore, instead of conviction under Section 302 IPC, the proper conviction
would be under Section 304 Part I for accused- appellants. Though names of A-7
and A-8 do not appear in the first information report, but in the statements of
witnesses recorded immediately after occurrence their names were indicated. In
the first information report and the clarificatory statement appended thereto,
some names were given and it was clearly stated that some other persons were
also the assailants. This being the position mere absence of names of A-7 and
A-8 would not make any difference. Merely because the names were not
specifically mentioned but were spoken by the witnesses immediately thereafter
that cannot be sufficient by itself to create suspicion. So far as A-1 is concerned,
his conviction has to be under Section 304 read with Section 109 IPC. Learned
counsel for the respondent submitted that instigation was cause of murder and
merely because the conviction is altered, that cannot be ground for non- application
of Section 302 read with Section 109 IPC.
Section
107 IPC defines abetment of a thing. The offence of abetment is a separate and
distinct offence provided in the Act as an offence. A person abets the doing of
a thing when
(1) he
instigates any person to do that thing; or
(2) engages
with one or more other persons in any conspiracy for the doing of that thing;
or
(3) intentionally
aids, by act or illegal omission, the doing of that thing.
These
things are essential to complete abetment as a crime. The word 'instigate'
literally means to provoke, incite, urge on or bring about by persuasion to do
any thing. The abetment may be by instigation, conspiracy or intentional aid,
as provided in the three clauses of Section 107.
Section
109 provides that if the act abetted is committed in consequence of abetment
and there is no provision for the punishment of such abetment then the offender
is to be punished with the punishment provided for the original offence. 'Act
abetted' in Section 109 means the specific offence abetted. Therefore, the
offence for the abetment of which a person is charged with the abetment is
normally linked with the proved offence. In the instant case, the abetted
persons have been convicted for commission of offence punishable under Section
304. So in the case of A-1 it is Section 304 read with Section 109 IPC, that is
attracted.
In the
ultimate analysis, conviction of the appellants is altered to Section 304 IPC,
except in case of A-1 where the conviction is under Section 304 read with
Section 109 IPC. In each of the cases, the sentence will be 10 years rigorous
imprisonment. The conviction and sentence in respect of other offences, will
stand and the sentence therefor shall run concurrently, as ordered by the High
Court.
The
appeals are allowed to the extent indicated.
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