Gunnana Pentayya @
Pentadu & Ors. Vs. State of A.P. [2008] INSC 1390 (20 August 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.292 OF 2006 Gunnana
Pentayya @ Pentadu & Ors. ...Appellants Versus State of A.P. ...Respondent
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 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
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 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 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.
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.
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, 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 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 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.
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 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
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 there from. 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 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 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 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 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 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 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)
..........................................J.
(Dr. MUKUNDAKAM SHARMA)
New
Delhi:
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