Anna Reddy Sambasiva
Reddy & Ors. Vs. State of Andhra Pradesh [2009] INSC 805 (21 April 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.408 OF 2007 Anna
Reddy Sambasiva Reddy & Ors. ..Appellants Versus State of Andhra Pradesh
..Respondent JUDGEMENT R.M. LODHA, J.
1.
This
criminal appeal by special leave unfolds a woeful tale of a village political
rivalry leading to double murder; prior thereto also there were attacks by
rival factions that led to two murders.
2.
Fifteen
persons were arraigned before the trial court for the offences under Section
302, 307, 307 read with 149, 148 and 341, IPC. The trial court convicted only
eleven among them and acquitted two accused. The other two accused died during
the trial. The convicted persons were sentenced under Section 302, IPC, to life
imprisonment and varying periods of imprisonment under other offences; fine
with default stipulation was also imposed. All the eleven convicted persons filed
appeal before the High Court. The High Court affirmed the conviction and
sentence passed by the trial court. All these eleven convicted persons
preferred special leave petition in which leave has been granted.
During the pendency
of the appeal, one more convicted person has died.
3.
Chinthalajuturu
in Vemula Mandal of Cuddapah District (Andhra Pradesh) is a faction-ridden
village. One of these factions is led by Kakarla Gangi Reddy (victim group)
that supports Congress Party. The leader of the other faction is Annareddysamba
Siva Reddy (accused group) which supports Telugu Desam Party. There were
instances of attack between these groups earlier also. One year prior to the
present incident, one Yeddula Gangi Reddy of the Congress Party and belonging
to victim group was murdered. About a fortnight prior to the incident, one
Sirigireddy Prathapa Reddy of accused group was murdered. For the murder of Sirigireddy
Prathapa Reddy, the members of victim group figured as accused. It is for this
reason that A.M. Annareddy Siva Reddy started residing at Pulivendula.
4.
On
May 16, 1996 at about 9.00 A.M. Annareddy Siva Reddy (deceased hereinafter
referred to as D-1), Yerram Reddy Pulla Reddy (deceased and hereinafter
referred to as D-2), Annareddy Bala Gangi Reddy (PW-1) - brother of D-1,
Annareddy Jagan Mohan Reddy (PW-3) - nephew of D-1 and one Ramiredy Narayana
Reddy left Pulivendula in a jeep driven by Ala Krishnaiah (PW-2). D-1 sat in
the front seat by the side of driver (PW-2). PW-1 and D-2 occupied the second
row seat behind D-1 and PW-2.
PW-3 and Ramireddy
Narayana Reddy occupied the rear seat of the jeep.
5.
When
the said jeep reached near Gollalaguduru Harijanawada village, D-1 saw a jeep
with the members of accused group seated therein, coming from the opposite
direction. Seeing this, D-1 asked PW-2 to reverse the jeep.
PW-2 had hardly
reversed the jeep that Annareddi Sambasiva Reddy (A-1), Annareddi Ramakrishna
Reddy (A-2), Annareddi Ramasura Reddy (A-3), Yeddula Eswara Reddy (A-4), Yeddula
Gangi Reddy (A-5), Annareddi Gangi Reddy (A-6), Palle Venkatarami Reddy (A-7),
Annareddi Srinivasul Reddy (A-8), Dasareddigari Chalama Reddy (A-9),
Dasareddigari Lakshmi Reddy (A-10), Singam Pedda Pulla Reddy (A-11), Singam
Chinna Gangi Reddy (A-12), Kakarla Subbi Reddy (A-13), Annareddi Lakshmi Reddy
(A-14) and Annareddi Ramana Reddy (A-15) came out of their vehicle and
surrounded the jeep of D-1. A-1, A-2, A-10 and A-13 were armed with axes while
the others were armed with Eathapululu (sickle). A-1 to A-9 hacked D-1. A-3,
A-6, A-7 and A-10 to A-13 hacked D-2. D-1 and D-2 died on the spot. A-1, A-3,
A-6, A-7 and A-10 to A-13 inflicted grievous injuries on PW-1 whereas A-7, A-9,
A-10 and A-14 inflicted injuries on Annareddy Jagan Mohan Reddy (PW-3) and
Ramireddy Narayana Reddy. A-14 attacked PW-3 and A-15 attacked PW-2.
6. PW-1 was taken to
Pulivendula Government Hospital by few residents of Chinthalajuturu village.
Dr. T.V. Raghavendra Reddy (PW-10), Civil Assistant Surgeon attended on him and
gave PW-1 the necessary medical aid.
K. Danam (PW-11) -
Assistant Sub Inspector of Police, Vemula Police Station while he was at
Pulivendula came to know of the incident at about 1.50 P.M. He went to the
Pulivendula Government Hospital and found that PW-1 was undergoing treatment.
After being satisfied that PW-1 was conscious and able to give his statement,
in the presence of the doctor (PW-10), he recorded statement (Ex.P-1) of PW-
1. PW-11 then went to
Vemula Police Station and registered the case (Crime No.26/1996) and forwarded
a copy of the first information report to the concerned magistrate immediately
thereafter.
7. A. Venkateswara
Reddy (PW-12) - Inspector of Police, took up investigation and conducted
further investigation on May 17, 1996. He conducted inquest of the dead bodies
and sent them to Government Hospital, Pulivendula for post-mortem examination.
PW-10 conducted autopsy of the dead bodies and issued post-mortem reports
Ex.P.18 and Ex.P.19. PW-10 also examined the injured PW- 2 and PW-3 and issued
injury certificates Ex.P.13 and Ex.P.16.
8. In order to
complete the narration of facts, it may be noticed here that during the course
of investigation, A-14 and A-15 pleaded alibi. The Investigating Officer took
all 5 necessary steps towards investigation and after collecting the necessary
evidence and on completion of investigation, he filed chargesheet against A-1
to A-13 before the Court of Judicial Magistrate 1st Class, Pulivendula who
committed them to court of sessions for trial. The accused were charged for the
following offences:
"(i) A-1 to A-13
for rioting under Section 148 IPC;
(ii) A-1 to A-13 for
wrongful restraint under Section 341 IPC;
(iii) A-1 to A-13 for
voluntarily causing grievous hurt to PW-1 and PW-3 under Section 326 IPC;
(iv) A-1 to A-5 and
A-6 to A-9 under Section 302 IPC for the murder of D-1;
(v) A-3, A-6 to A-8
and A-10 to A-13 under Section 302 IPC for the murder of D-2;
(vi) A-1, A-3, A-6 to
A-8, A-10, A-12 and A-13 under Section 307 IPC for attempt to murder PW-1;
(vii) A-7, A-9 and
A-10 under Section 307 IPC for attempt to murder Ramireddi Narayana Reddy;
(viii) A-2, A-4, A-5
and A-11 under Section 307 read with Section 149 IPC for attempt to murder
PW-1."
9. Since A-14 and
A-15 were deleted from the chargesheet by the Investigating Officer, a private
complaint came to be filed by PW-1 before the Judicial Magistrate 1st Class,
Pulivendula. The concerned magistrate also committed A-14 and A-15 to the court
of sessions for trial.
10. The prosecution
examined 13 witnesses including three eye-witnesses (PW-1 to PW-3) and marked
documents Ex.P-1 to Ex.P-28 and exhibited M.O. 1 to M.O.14.
11. In their
statement under Section 313, Cr.P.C., the accused denied their role in the
crime.
12. The III
Additional Sessions Judge, Cuddapah, on consideration of both oral and
documentary evidence vide his judgment dated April 5, 2004, found A-1, A-2, A-4
to A-8 guilty of the offence under section 302 IPC; they were sentenced to
undergo imprisonment for life and a fine of Rs.1,000/- with default
stipulation. A-6, A-7, A-10 to A-13 were found guilty of the offence under
section 302 IPC and sentenced to undergo imprisonment for life and a fine of
Rs.1,000/- with default stipulation. A-6, A-7, A-10 to A-13 were found guilty
of the offence under section 307 IPC as well and sentenced to undergo
imprisonment for five years and a fine of Rs.1,000/- with default stipulation.
A-2, A-4 and A-5 were found guilty of the offence under section 307 read with
section 149 IPC and sentenced to undergo rigorous imprisonment for five years
and a fine f Rs.1,000/- with default stipulation. A-1, A- 2, A-4 to A-8, A-10
to A-13 were found guilty of the offence under section 148 IPC and sentenced to
undergo imprisonment for one year and a fine of Rs.500/- with default
stipulation.
The sentence passed
against each of the accused was ordered to run concurrently. The trial court
acquitted A-14 and A-15 of all the charges. A-3 and A-9 died during the trial
and, thus, the case abated as against them.
13. Aggrieved against
their conviction and sentence, A-1, A-2, A-4 to A-8 and A-10 to A-13 filed
appeal before the High Court. The State preferred separate appeal against that
very judgment in so far as acquittal of A-14 and A-15 was concerned.
14. These two appeals
were heard together by the Division Bench of the High Court and were dismissed
on March 9, 2006.
15. The present
appeal now subsists on behalf of A-1, A-2, A-4, A-6 to A-8 and A-10 to A-13
since A-5 has died during the pendency of appeal.
16. Dr.T.V.
Raghavendra Reddy (PW-10), Civil Surgeon, Government Hospital, Pulivendla
conducted post- mortem examination on the body of Annareddy Siva Reddy (D-1) on
May 17, 1996. In the post-mortem report (Ex.P-18), he recorded the following
external injuries on the body of D-1:
"1. An incised
wound in the middle of right upper arm measuring about 7 cm x 3 cm x 4 cm deep.
Muscles cut and fracture of bone present.
2. An incised wound 5
cm above wound No.1 measuring about 7 cm x 3 cm x 2 cm deep. Muscles cut.
3. An incised wound
from the lateral part of the left eye below the ear to the root of neck
measuring about 20 cm x 3 cm x 5 cm deep. Muscles cut and fracture of mandible
and spinal process.
4. An incised wound
1= cm above wound No.3 measuring about 15 cm x 1= cm x 4 cm deep.
5. An incised wound 7
cm x 1 cm x bone deep 1 cm above wound No.4.
6. An incised wound 2
cm above wound No.5 measuring about 5 cm x 1= cm x bone deep fracture of
occipital bone present.
7. An incised wound
in the left occipital area measuring about 8 cm x 5 cm x bone deep. Flap is
hanging with bit of skin .
8. An incised wound
on the left parietal area measuring about 6 cm x 1= cm x bone deep and fracture
of parietal bone present.
9. An incised wound
in the centre of the scalp measuring about 6 cm x 1= cm x bone deep. Fracture
of the left and right parietal bones seen.
10. An incised wound
on the right parietal area measuring about 5 cms x 1 cm x bone deep and
fracture of right parietal bone seen.
Head and neck : Brain
injured and neck vessels cut."
The aforesaid
injuries on the body of D-1 were found ante- mortem in nature. In the opinion
of PW-10, D-1 died due to haemorrhage, shock and injury to neck vessels.
17. On the same day
(May 17, 1996) at 1.30 P.M., PW-10 conducted post-mortem examination on the
body of D-2. In the post-mortem report (Ex.P-19), he recorded the following
injuries on the body of D-2:
"1. Incised
wound on the left leg at the knee joint measuring about 15 cms x 8 cm x 8 cm
deep. Fracture of patella bone seen.
2. Incised wound 6
cms below wound No.1. measuring about 10 cm x 3 cm x 4 cms deep. Fracture of
Tibia seen.
3. Incised wound in
centre of chest lower part of sternum measuring about 6 cm x 2 cm x fracture of
sternum and plura is injured.
4. An incised wound
between left thumb and the index finger measuring about 3= cm x 1= cm x 1= cm
deep.
5. An incised wound
on the nape of the neck measuring about 5 cm x 1= cm x 1= cm deep.
6. An incised wound
on the left parietal area measuring about 5 cm x 1= cm x scalp deep.
7. An incised wound
on the posterior part of left parietal area measuring about 5 cm x 1= cm x
scalp deep."
The aforesaid
injuries were found ante-mortem in nature.
According to PW-10,
D-2 died of haemorrhage, shock and injury to vital organs.
18. The evidence of
PW-10 and post-mortem reports (Ex.P-18 and Ex.P-19) leave no manner of doubt
that the death of D-1 and D-2 was homicidal.
19. PW-1 is the
injured witness. The following injuries were inflicted on him:
"1. An incised
wound in front of left parietal area and front bone measuring about 7 cm x 1=
cm x bone deep.
(Depressed fracture
of the frontal bone as per the specialist opinion).
2. An incised wound on
the left hand above the wrist measuring about 4 cm x 1 cm x muscles deep.
Fracture of Ulna bone (As per the specialist opinion).
3. An incised wound
on the posterior part of the left parietal area measuring about 6 cm x 1 cm x
bone deep, and cut of the bone.
4. An incised wound
by the side of wound No.3, 2 cm apart measuring about 3 cm x = cm x scalp deep.
5. An incised wound
on the left hand above wound No.2 measuring about 3 cm x 1 cm x muscle deep.
6. An incised wound
on the right wrist measuring about 1= cm x = cm skin deep.
7. An incised wound
on the anterior part of Right parietal bone measuring about 2 cm x < cm x
skin deep.
8. An incised wound
on the anterior part of the left parietal bone measuring about 3= cm x < cm
x Skin deep."
20. K. Danam (PW-11),
was posted as Assistant Sub Inspector of Police at Vemula Police Station at the
relevant time. Having come to know of the incident that two persons belonging
to the Congress Party were done to death at Gollalaguduru Harijanwada by the Telugu
Desam Party faction, PW-11 immediately rushed to the Government Hospital,
Pulivendula. He found that PW-1 was undergoing treatment in the emergency ward.
As PW-1 was in a fit condition to give statement, PW-11 recorded his statement
marked Ex.P-1. PW-10 also made an endorsement on Ex.P- 1 that PW-1 was in a fit
and proper condition to give a statement. Based on Ex.P-1, first information
report came to be registered.
21. Mr. P.P. Rao,
learned senior counsel appearing for the appellants vehemently contended that
first information report was a concocted document and that makes the entire
prosecution case doubtful. He would submit that PW-1 was seriously injured and
not in a position to give any statement.
In this regard, he
referred to the evidence of Dr. A. Sudhakar Reddy (PW-7), Assistant Professor
of Neuro Surgery at S.V.R.R.G.G. Hospital, Tirupati who treated PW-1. The
learned senior counsel also submitted that at the time of the recording of
statement (Ex.P-1), the group leader Kakarla Gangj Reddy had already arrived
and he was in the room where PW-1 was being treated. It is the contention of
Mr. P.P. Rao that Kakarla Gangi Reddy was instrumental in implicating the
accused falsely who belonged to rival group.
It was also contended
that in the first information report except naming all the accused and making
omnibus allegations, no specific overt acts of the accused were mentioned.
22. We are unable to
accept the submission of the learned senior counsel that F.I.R. is a concocted
document.
It is true that
injury no.1 received by PW-1 in front of left parietal area and the depressed
fracture of frontal bone was extremely grave and serious but on the face of
clear, categorical and unambiguous endorsement made by Dr.T.V. Raghavendra
Reddy (PW-10) that PW-1 was in a fit and proper condition to give a statement
at that time and the fact that PW-11 recorded the statement of PW-1 in the
presence of PW-10, there cannot be even slightest doubt about the authenticity
of Ex.P-1 and we find no justifiable reason to even remotely conclude that
Ex.P-1 is not the statement given by PW-1. The contention that PW-11 is a
chance witness, is noted to be rejected. Pertinently, the F.I.R. was forwarded
to the Magistrate without any delay. As a matter of fact, F.I.R. reached the
Magistrate at 10.45 P.M. on May 16, 1996 itself.
As to whether PW-1
was in a fit and proper condition to give statement or not, could have been
assessed by PW-10 under whose treatment PW-1 was at that time and none else.
The evidence of PW-7 referred to by the learned senior counsel in no way
creates any doubt about the correctness of statement of PW-10 as PW-7 has not
stated in definite terms that PW-1 was not in a fit state of condition to give
statement at that time. The trial court as well as the High Court did not
accept the contention made on behalf of the accused that Ex.P-1 was fabricated.
We agree with this view of the trial court and the High Court.
23. PW-1 in his
testimony before the court has given account of the incident. He testified that
A-1, A-2, A-10 and A-12 were armed with axes and remaining eleven accused were
armed with eathapululu (sickle). A-1 to A-9 hacked D-1 with their weapons. A-3,
A-6, A-7, A-10 to A-13 hacked D-2 with their respective weapons. A-1, A-3, A-6,
A-7 and A-10 to A-13 hacked him with their respective weapons. A-7, A-9, A-10
and A-14 hacked PW-3 and R. Narayanareddy with their respective weapons. D-1
and D-2 died on the spot. In his cross-examination, he admitted that he did not
state in Ex.P-1 that they (PW-1 and D-1) obtained loan of Rs.6,000/- from the
bank. He also admitted in Ex.P-1 that he did not state that A-1, A-2, A-10 and
A-12 were armed with axes and the remaining accused with eathapululu (sickle).
He also admitted that he did not state in Ex.P-1 that A-1 to A-9 hacked D-1; A-
3, A-6, A-10 to A-13 hacked D-2 and that he was attacked by A-1, A-3, A-6, A-7,
A-10 to A-13 and that A-7, A-9, A-10 and A-14 attacked PW-3 and R.
Narayanareddy. These omissions do not affect the credibility of his evidence
since at the time of recording of Ex.P-1, PW-1 was in injured condition.
It was not expected
of him to give a detailed version in that condition, more so when so many
accused were involved. But despite that, in Ex.P-1, he has given names of all
the accused persons. 24. The testimony of PW-1 is corroborated by medical
evidence. The factum of PW-1 and D-1 having gone to the Bank at Pulivendula and
that they obtained a loan of Rs.6,000/- from Alavalapadu Grameena Bank is also
established by the evidence of R.B.S.K. Satyamurthy (PW-5) and M. Venkata
Subbareddy (PW-6). PW-5 and PW-6 were Branch Manager and Clerk-cum-Cashier
respectively in the Bank at the relevant time. The evidence of driver of the
jeep A. Krishnaiah (PW-2), although declared hostile as he refused to recognize
the assailants, corroborates the evidence of PW- 1 to the extent that they had
gone to the Bank at Pulivendula and that they were returning from that place on
May 16, 1996 at 11.00 A.M.
25. A. Jaganmohan
Reddy (PW-3) is yet another eye- witness. He also got injured in the incident.
He has given detailed version of the incident. He has testified that A-1 to A-9
hacked D-1 and A-3, A-6, A-7, and A-10 to A-13 hacked D-2 with their weapons.
He also testified that A-3, A-6, A-7 and A-10 to A-13 hacked PW-1 causing
various injuries to him and A-7 and A-10 hacked him on his left forearm and
left thigh. PW-10 examined PW-3 at about 3.45 P.M. on May 16, 1996 and found
two incised injuries on the left hand and left thigh. The injury report
pertaining to him is Ex.P-16.
26. PW-1 and PW-3 are
injured witnesses. As a matter of fact, PW-1 suffered a grave injury on his
head. Two of their family members died. Why should he and PW-3 let real
culprits go scot-free ? It is most unlikely that they would have spared the
actual assailants and falsely implicated these appellants merely because there
is political rivalry between them. The omissions and discrepancies pointed out
in the evidence of PW-1 and PW-3 are only minor and do not shake their
trustworthiness. It is true that neither PW-1 nor PW-3 assigned specific
injuries or specific overt acts attributed to the accused individually but
looking to the nature of the incident where large number of persons attacked
D-1, D-2 PW-1, PW-2 and PW-3, it would not have been possible for PW-1 or PW-3
to attribute specific injury individually to each accused. How could it be
possible for any person to recount with meticulous exactitude the various
individual acts done by each assailant ? Had they stated so, their testimony
would have been criticized as highly improbable and unnatural. The testimony of
eye-witnesses carries with it the criticism of being tutored if they give
graphic details of the incident and their evidence would be assailed as
unspecific, vague and general if they fail to speak with precision. The golden
principle is not to weigh such testimony in golden scales but to view it from
the cogent standards that lend assurance about its trustfulness. In our view,
the testimony of PW-1 and PW-3 is of credence and does not deserve to be
discarded on the ground of non-mentioning of specific overt acts. The trial
court and the High Court have given cogent and convincing reasons for accepting
the evidence of PW-1 and PW-3. We concur. Merely because A-14 and A-15 got
acquittal, in our view, credibility of deposition of PW-1 and PW-3 is not
affected.
27. Mr. P.P. Rao,
learned senior counsel submitted that the conviction and sentence passed
against the accused- appellants for the offence under Section 302, IPC,
simpliciter is not legally sustainable in the absence of any specific overt
acts attributed to each of the accused. The learned senior counsel would submit
that the accused who inflicted fatal injury/injuries resulting in the death
with the requisite intention or knowledge alone are liable for the offence
under 18 Section 302, IPC simpliciter. The learned senior counsel contended
that as there is no conviction for the offence under Section 302 read with
Section 149, IPC, the question whether such conviction is maintainable or not
without such charge does not arise in the present case. Placing reliance upon a
decision of this Court in Pandurang,Tukia and Bhillia vs. The State of
Hyderabad 1, learned senior counsel would submit that in absence of specific
charge under Section 149, the accused persons cannot be convicted under Section
302 read with Section 149 as Section 149 creates a distinct and separate
offence. The learned senior counsel also relied upon Suraj Pal vs. The State of
Uttar Pradesh2, Nayan Ullah Nanak Chand vs. The State of Punjab5.
28. Learned senior
counsel for the appellants also contended that in the instant case there is no
charge under Section 149, IPC at all nor any finding of the courts below that
the accused had the common object to commit the offence under Section 302, IPC.
He submitted that barring one injury 1 (1955) 1 SCR 1083 2 (1955) 1 SCR 1332 3
A.I.R. 1925 Calcutta 903 4 A.I.R. 1958 Allahabad 255 5 (1955) 1 SCR 1201 19 in
the case of D-1 and two injuries in the case of D-2, none of the other injuries
was found to be fatal and, therefore, the common object at the most could be
only to cause some injury but not to cause the fatal injuries. In support of
this contention of his, the learned senior counsel relied upon
29. Mr.D. Rama
Krishna Reddy, learned counsel for the State in his reply submitted that in the
complaint (Ex.P-1), the names of all the accused persons, weapons wielded by
them and their participation have been clearly mentioned. In their deposition,
PW-1 and PW-3 have also stated which of the accused attacked D-1, D-2 and
injured PW-1, PW-2 and PW-3 and, therefore, non-attributing the injuries
specifically to the individual accused does not materially affect the
prosecution case. He would urge that the accused- appellants have been
convicted for the offences under Sections 148 and 307 read with Section 149 and
Section 302 IPC 6 AIR 1960 SC 725 7 (1978) 4 SCC 77 8 (1975) 3 SCC 379 20
simpliciter which would show that the accused formed unlawful assembly. The
learned counsel invited our attention to Section 464 of the Code of Criminal
Procedure and submitted that in the present case, neither in the grounds of
appeal before this Court nor before the courts below the accused have pleaded
prejudice or failure of justice due to non- mentioning of Section 149 IPC with
Section 302 IPC. He State of Bihar,14 30. In Suraj Pal, this Court held:
"...Whether or
not Section 149 IPC creates a distinct offence (as regards which there has been
conflict of views in the High Courts), there can be no doubt that it creates a
distinct head of criminal liability which has come to be known as
"constructive liability"--a convenient phrase not used in the Indian
Penal Code. There can, therefore, be no doubt that the direct individual
liability of a person can only be fixed upon him with reference to a specific
charge in respect of the particular offence. Such a case is not covered by 9
(1955) 2 SCR 1140 10 (1974) 4 SCC 754 11 (2005)10 SCC 629 12 (2008) 8 SCC 339
13 (2002) 5 SCC 724 14 (2000) 6 SCC 89 21 Sections 236 and 237 of the Criminal
Procedure Code. The framing of a specific and distinct charge in respect of
every distinct head of criminal liability constituting an offence, is the
foundation for a conviction and sentence therefore. The absence, therefore, of
specific charges against the appellant under Sections 307 and 302 IPC in
respect of which he has been sentenced to transportation for life and to death
respectively, is a very serious lacuna in the proceedings insofar as it
concerns him. The question then which arises for consideration is whether or
not this lacuna has prejudiced him his trial."
31. In Pandurang, it
was observed:
"......Several
persons can simultaneously attack a man and each can have the same intention,
namely the intention to kill, and each can individually inflict a separate
fatal blow and yet none would have the common intention required by the section
because there was no prior meeting of minds to form a pre-arranged plan. In a
case like that, each would be individually liable for whatever injury he caused
but none could be vicariously convicted for the act of any of the others; and
if the prosecution cannot prove that his separate blow was a fatal one he
cannot be convicted of the murder...."
32. In the case of
Nanak Chand, this Court stated:
"...There is a
clear distinction between the provisions of sections 34 and 149 of the Indian
Penal Code and the two sections are not to be confused . The principal element
in section 34 of the Indian Penal Code is the common intention to commit a
crime. In furtherance of the common intention several acts may be done by
several persons resulting in the commission of that crime. In such a situation
section 34 provides that each one of them would be liable for that crime in the
same manner as if all the acts resulting in that crime had been done by him
alone. There is no question of common intention in section 149 of the Indian
Penal Code. An offence may be committed by a member of an unlawful assembly and
the other members will be liable for 22 that offence although there was no
common intention between that person and other members of the unlawful assembly
to commit that offence provided the conditions laid down in the section are
fulfilled. Thus if the offence committed by that person is in prosecution of
the common object of the unlawful assembly or such as the members of that
assembly knew to be likely to be committed in prosecution of the common object,
every member of the unlawful assembly would be guilty of that offence, although
there may have been no common intention and no participation by the other
members in the actual commission of that
offence..........................................
.............................
After an examination
of the case referred to on behalf of the appellant and the prosecution we are
of the opinion that the view taken by the Calcutta High Court is the correct
view namely, that a person charged with an offence read with section 149 cannot
be convicted of the substantive offence without a specific charge being framed
as required by section 233 of the Code of Criminal Procedure."
33. In Umesh Singh
while dealing with Section 149 IPC, this Court held:
" Vicarious
liability, we may state, as rightly contended for the State by Shri B.B. Singh
relying upon the decisions of this Court in Shamshul Kanwar v. State of
U.P.,(1995) 4 SCC 430, and Bhajan Singh v. State of U.P., (1974) 4 SCC 568,
extends to members of the unlawful assembly only in respect of acts done in
pursuance of the common object of the unlawful assembly or such offences as the
members of the unlawful assembly are likely to commit in the execution of that
common object. An accused whose case falls within the terms of Section 149 IPC
as aforesaid cannot put forward the defence that he did not with his own hand
commit the offence committed in prosecution of the common object of the
unlawful assembly or such as the members of the assembly knew to be likely to
be committed in prosecution of that object. Everyone must be taken to have
intended the probable and natural results of the combination of the acts in
which he had joined. It is not necessary in all cases that all the persons
forming an unlawful assembly must do some overt act. Where the accused had
assembled 23 together, armed with guns and lathis, and were parties to the
assault on the deceased and others, the prosecution is not obliged to prove
which specific overt act was done by which of the accused. Indeed the
provisions of Section 149 IPC, if properly analysed will make it clear that it
takes an accused out of the region of abetment and makes him responsible as a
principal for the acts of each and all merely because he is a member of an unlawful
assembly. We may also notice that under this provision, the liability of the
other members for the offence committed during the continuance of the
occurrence rests upon the fact whether the other members knew beforehand that
the offence actually committed was likely to be committed in prosecution of the
common object. Such knowledge can reasonably be intended from the nature of the
assembly, arms or behaviour, at or before the scene of action. If such
knowledge may not reasonably be attributed to the other members of the assembly
then their liability for the offence committed during the occurrence does not
arise.
Tested on this
touchstone, we may safely say that in the present case when the appellants were
members of an unlawful assembly which was armed with lathis and guns and a
declaration had been made that in the event there is any resistance to the
taking away of the paddy which is stated to have been the original object, they
were willing to take the life of the deceased and take away the paddy. If that
is the position, it is futile to contend for the appellants that their
conviction is in any way bad."
34. Section 464 of
Code of Criminal Procedure reads:
"464. Effect of
omission to frame, or absence of, or error in, charge.--(1) No finding sentence
or order by a Court of competent jurisdiction shall be deemed invalid merely on
the ground that no charge was framed or on the ground of any error, omission or
irregularity in the charge including any misjoinder of charge, unless, in the
opinion of the Court of appeal, confirmation or revision, a failure of justice
has in fact been occasioned thereby.
(2) If the Court of
appeal, confirmation or revision is of opinion that a failure of justice has in
fact been occasioned, it may - (a) in the case of an omission to frame a
charge, order that a charge be framed and that the 24 trial be recommended
from the point immediately after the framing of the charge.
(b) in the case of an
error, omission or irregularity in the charge, direct a new trial to be had upon
a charge framed in whatever manner it thinks fit.
Provided that if the
Court is of opinion that the facts of the case are such that no valid charge
could be preferred against the accused in respect of the facts proved, it shall
quash the conviction."
35. We deem it
appropriate at this stage to refer to the charges framed against the accused by
the trial court:
"Charge No.1.
That you A-1 to A-13 on or about 16-5-1996 in the morning near Gollalaguduru
Harijanawada were members of an unlawful assembly and did, in prosecution of
the common object of such assembly viz., in murdering the deceased, 1 and 2
commit the offence of rioting with a deadly weapon to wit axes and Eethapululu
and that that you thereby committed an offence punishable under Section 148
I.P.C. and within my cognizance.
Charge No.2. That you
A-1 to A-13 on or about the same day, time, place and during the course of the
same transaction as mentioned in charge No.1 above, wrongfully restraint LWs-1
to 4 Annareddi Bala Gangireddi, Annareddi Jagan Mohanreddi, Ramireddi
Narayanareddi and Ala Krishnaiah and later the deceased 1 and 2 thereby
committed an offence punishable under Section 341 I.P.C. and within my
cognizance.
Charge No.3. That you
A-1 to A-13 on or about the same day, time, place and during the course of the
same transaction as mentioned in charge No.1 above, voluntarily caused grievous
hurt to LWs-1 to 4 Annareddi Bala Gangireddi, Annareddi Jagan Mohanreddi,
Ramireddi Narayanareddi and Ali Krishnaiah by means of axes and Eethapululu and
that you thereby committed an offence punishable under Section 326 I.P.C. and
within my cognizance.
Charge No.4. That you
A-1 to A-5 and A-6 to A-9, on or about the same day, time, place and during the
course of the same transaction as mentioned in charge No.1 above, did commit
murder by intentionally causing the death of Annareddi Sivaraeddi (deceased
No.1) and that you thereby committed an offence punishable under Section 302
I.P.C. and within my cognizance.
Charge No.5. That you
A-3, A-6 to A-8, A-10 to A-13 on or about the same day, time, place and during
the course of the same transaction as mentioned in the charge No.1 above, did
commit murder by intentionally causing the death of Yerramireddi Pullareddi (deceased
No.2) and that you thereby committed an offence punishable under Section 302
I.P.C. and within my cognizance.
Charge No.6. That you
A-1, A-3, A-6 to A-8, A-10, A-12 and A-13 on or about the same day, time, place
and during the course of the same transaction as mentioned in charge No.1
above, did an act to wit to murder with such intention and under such
circumstances, that if by that act you had caused the death of Annareddi Bala
Gangi Reddi (LW-1) you would have been guilty of murder and that you caused
hurt to the said Annareddi Bala Gangireddi (LW-1) by the said act and that you
thereby committed an offence punishable under Section 307 I.P.C. and within my
cognizance.
Charge No.7. That you
A-7, A-9 and A-10 on or about the same day time and place during the course of
the same transaction as mentioned in charge No.1 above, did an act to wit
attempt to murder with such intention and under such circumstances, that if by
that act you had caused the death of Ramireddi Narayana Reddi, you would have been
guilt of murder and that you caused hurt to the said Ramireddi Narayanareddi
LW-3 by the said act, and that you thereby committed an offence punishable
under Section 307 I.P.C. and within my cognizance.
Charge No.8. That you
A-2, A-4, A-5 and A-11 on or about the same day, time, place and during the
course of the same transaction as mentioned in charge No.1 above, were members
of an unlawful assembly and in prosecution of the common object of which viz.,
in attacking the prosecution witnesses some of the members i.e., A-1, A-3, A-6
to A-10 and A-12 and A-13 caused the death of the deceased attempt to murder
the witnesses and that you are thereby under section 149 I.P.C. guilty of
causing the said offence, an offence punishable under Section 307 I.P.C. and
within my cognizance."
36. Section 149, IPC
creates constructive liability i.e. a person who is a member of an unlawful
assembly is made guilty of the offence committed by another member of the same
assembly in the circumstances mentioned in the Section, although he may have
had no intention to commit that offence and had done no overt act except his
presence in the assembly and sharing the common object of that assembly.
37. Some divergence
between two decisions of this Court in Nanak Chand and Suraj Pal seems to have
been noticed and matter was referred to the Constitution Bench in Willie
(William) Slaney. Although Willie (William) Slaney was not a case under Section
149 of the Indian Penal Code and the charge against the accused therein was under
Section 302 read with Section 34 IPC but the Constitution Bench considered the
question whether the omission to frame an alternative charge under Section 302
IPC is an illegality that cuts at the root of conviction. Vivian Bose, J.
considered Sections 221 to 223, 225, 226, 227, 228, 232, 233, 234, 235, 236,
237, 238, 535 and 537 of the Code of Criminal Procedure, 1898 and observed:
"29. We do not
agree with either view. In our opinion, the cases contemplated by Section 237
are just as much a departure from Section 233 as are those envisaged in
Sections 225, 226, 227, 228, 535 and 537. Sections 236, 237 and 238 deal with
joinder of charges and so does Section 233. The first condition is that there
shall be a separate charge for each offence and the second is that each charge
must be tried separately except in the cases mentioned in Sections 234, 235 and
236. It is to be observed that the exceptions are confined to the rule about
joinder of charges and that no exception is made to that part of the rule that
requires separate charges for each offence.
It will be seen that
though Sections 234, 235 and 236 are expressly mentioned, Section 237 is not
referred to, nor is Section 238. Therefore, so far as Section 233 is concerned,
there can be no doubt that it requires a separate charge for each offence and
does not envisage a situation in which there is either no charge at all or
where, there being a charge for some other offence of which the accused is
acquitted, he can be convicted instead of something else for which he was not
charged. We are unable to hold that the Code regards Sections 237 and 238 as
part of the normal procedure."
38. Vivian Bose, J.
went on to observe :
"44. In
adjudging the question of prejudice the fact that the absence of a charge, or a
substantial mistake in it, is a serious lacuna will naturally operate to the
benefit of the accused and if there is any reasonable and substantial doubt
about whether he was, or was reasonably likely to have been, misled in the
circumstances of any particular case, he is as much entitled to the benefit of
it here as elsewhere; but if, on a careful consideration of all the facts,
prejudice, or a reasonable and substantial likelihood of it, is not disclosed
the conviction must stand; also it will always be material to consider whether
objection to the nature of the charge, or a total want of one, was taken at an
early stage. If it was not, and particularly where the accused is defended by
counsel (Atta Mohammad v. King- Emperor) {(1929) LR 57 IA 71,74} it may in a
given case be proper to conclude that the accused was satisfied and knew just
what he was being tried for and knew what was being alleged against him and
wanted no further particulars, provided it is always borne in mind that
"no 28 serious defect in the mode of conducting a criminal trial can be
justified or cured by the consent of the advocate of the accused" (Abdul
Rahman v. King-Emperor) {(1926) LR 54 IA 96,104,110}. But these are matters of
fact which will be special to each different case and no conclusion on these
questions of fact in any one case can ever be regarded as a precedent or a
guide for a conclusion of fact in another, because the facts can never be alike
in any two cases "however" alike they may seem. There is no such
thing as a judicial precedent on facts though counsels, and even Judges, are
sometimes prone to argue and to act as if there were."
39. In his concurring
judgment, Chandrasekhara Aiyar, J. also surveyed the relevant provisions of the
Code of Criminal Procedure, 1898 and held:
"76. A case of
complete absence of a charge is covered by Section 535, whereas an error or
omission in a charge is dealt with by Section 537. The consequences seem to be
slightly different. Where there is no charge, it is for the court to determine
whether there is any failure of justice.
But in the latter,
where there is mere error or omission in the charge, the court is also bound to
have regard to the fact whether the objection could and should have been raised
at an earlier stage in the proceedings.
77. The sections
referred to indicate that in the generality of cases the omission to frame a
charge is not per se fatal.
We are unable,
therefore, to accept as sound the very broad proposition advanced for the
appellants by Mr Umrigar that where there is no charge, the conviction would be
illegal, prejudice or no prejudice. On the other hand, it is suggested that the
wording of Section 535 of the Code of Criminal Procedure is sufficiently wide
to cover every case of no charge. It is said that it applies also to the case
of a trial in which there has been no charge of any kind even from the very
outset. We are unable to agree that Section 535 of the Code of Criminal
Procedure is to be construed in such an unlimited sense. It may be noticed that
this group of sections relating to absence of a charge, namely, Sections 225,
226 and 232 and the powers exercisable thereunder, are with reference to a
trial which has already commenced or taken place. They would, therefore,
normally relate to errors of omissions which occur in a trial that has validly
commenced. There is no reason to think that Section 535 of the Code of Criminal
Procedure is not also to be understood with reference to the same context.
There may be cases where, a trial which proceeds without any kind of charge at
the outset can be said to be a trial wholly contrary to what is prescribed by
the Code. In such cases, the trial would be illegal without the necessity of a
positive finding of prejudice. By way of illustration the following classes of
cases may be mentioned: (a) Where there is no charge at all as required by the
Code from start to finish -- from the Committing Magistrate's court to the end
of the Sessions trial; the Code contemplates in Section 226 the possibility of
a committal without any charge and it is not impossible to conceive of an
extreme case where the Sessions trial also proceeds without any formal charge
which has to be in writing and read out and explained to the accused (Section
210(2) and Section 251(A)(4) and Section 227). The Code requires that there
should be a charge and it should be in writing. A deliberate breach of this
basic requirement cannot be cured by the assertion that everything was orally
explained to the accused and the assessors or jurors, and there was no possible
or probable prejudice, (b) Where the conviction is for a totally different
offence from the one charged and not covered by Sections 236 and 237 of the
Code. On a charge for a minor offence, there can be no conviction for a major
offence, e.g., grievous hurt or rioting and murder. The omission to frame a
separate and specific charge in such cases will be an incurable irregularity
amounting to an illegality.
78. Sections 34, 114
and 149 of the Indian Penal Code provide for criminal liability viewed from
different angles as regards actual participants, accessories and men actuated
by a common object or a common intention; and the charge is a rolled-up one
involving the direct liability and the constructive liability without
specifying who are directly liable and who are sought to be made constructively
liable.
In such a situation,
the absence of a charge under one or other of the various heads of criminal
liability for the offence cannot be said to be fatal by itself, and before a
conviction for the substantive offence, without a charge can be set aside,
prejudice will have to be made out. In most of the cases of this kind, evidence
is normally given from the outset as to who was primarily responsible for the
act which brought about the offence and such evidence is of course relevant.
79. After all, in our
considering whether the defect is illegal or merely irregular, we shall have to
take into account several factors, such as the form and the language of the
mandatory provisions, the scheme and the object to be achieved, the nature of
the violation, etc. Dealing with the question whether a provision in a statute
is mandatory or directory, Lord Penzance observed in Howard v. Bodington.
{(1877) 2 PD 203} "There may be many provisions in Acts of Parliament
which, although they are not strictly obeyed, yet do not appear to the court to
be of that material importance to the subject-matter to which they refer, as
that the legislature could have intended that the non-observance of them should
be followed by a total failure of the whole proceedings. On the other hand,
there are some provisions in respect of which the court would take an opposite
view, and would feel that they are matters which must be strictly obeyed,
otherwise the whole proceedings that subsequently follow must come to an
end." These words can be applied mutatis mutandis to cases where there is
no charge at all. The gravity of the defect will have to be considered to
determine if it falls within one class or the other. Is it a mere unimportant
mistake in procedure or is it substantial and vital? The answer will depend
largely on the facts and circumstances of each case. If it is so grave that
prejudice will necessarily be implied or imported, it may be described as an
illegality.
If the seriousness of
the omission is of a lesser degree, it will be an irregularity and prejudice by
way of failure of justice will have to be established."
40. Chandrasekhara
Aiyar, J. however, put a note of caution to subordinate Courts:
"80. This judgment
should not be understood by the subordinate courts as sanctioning a deliberate
disobedience to the mandatory requirements of the Code, or as giving any
licence to proceed with trials without an appropriate charge. The omission to
frame a charge is a grave defect and should be vigilantly guarded against. In
some cases, it may be so serious that by itself it would vitiate a trial and
render it illegal, prejudice to the accused being taken for granted. In the
main, the provisions of Section 535 would apply to cases of inadvertence to
frame a charge induced by the belief that the matter on record is sufficient to
warrant the conviction for a particular offence without express specification,
and where the facts proved by the prosecution constitute separate and distinct
offence but closely relevant to and springing out of the same set of facts
connected with the one charged."
41. Willie (William)
Slaney thus holds: that where the charge is rolled-up one involving the direct
liability and the constructive liability without specifying who are directly
liable and who are sought to be made constructively liable, in such a
situation, the absence of a charge under one or other or the various heads of
criminal liability for the offence cannot be said to be fatal by itself, and
before a conviction for the substantive offence, without a charge can be set
aside, prejudice will have to be made out.
42. The aforesaid
legal position holds good after enactment of the Code of Criminal Procedure,
1973 as well in the light of Sections 215, 216, 218, 221 and 464 contained
therein. In unmistakable terms, Section 464 specifies that a finding or
sentence of a court shall not be set aside merely on the ground that a charge
was not framed or that charge was defective unless it has occasioned in
prejudice.
Because of a mere
defect in language or in the narration or in form of the charge, the conviction
would not be rendered bad if accused has not been adversely affected thereby.
If the ingredients of the section are obvious or implicit, conviction in regard
thereto can be sustained irrespective of the fact that the said section has not
been mentioned. A fair trial to the accused is a sine quo non in our criminal
justice system but at the same time procedural law contained in the Code of
Criminal Procedure is designed to further the ends of justice and not to
frustrate them by introduction of hyper-technicalities. Every case must depend
on its own merits and no straightjacket formula can be applied; the essential
and important aspect to be kept in mind is: has omission to frame a specific
charge resulted in prejudice to the accused.
43. Coming now to the
facts of the present case; all the accused were put to notice under charge no.
1 that on May 16, 1996 in the morning near Gollalaguduru Harijanawada, they were
members of an unlawful assembly armed with deadly weapons and in prosecution of
common object of such assembly, namely, in murdering deceased 1 and 2, they
committed offence of rioting, punishable under section 148 IPC. A-1 to A-5 and
A-6 to A-9 were noticed of the particulars under charge no.4 that during the
course of same transaction as mentioned in charge no. 1, they committed murder
by intentional causing death of D-1 and thereby committed an offence punishable
under Section 302 IPC. A-3, A-6 to A-8, A-10 to A-13 were put to notice under
charge no.5 that during the course of the same transaction as mentioned in
charge no. 1 they committed murder by intentional causing death of D-2 and
thereby committed an offence punishable under Section 302 IPC.
44. A careful reading
of charge no. 4 and charge no. 5 leaves no manner of doubt, since the
transaction mentioned in charge no.1 has been made integral part thereof that
all the necessary ingredients of Section 149 IPC are implicit therein except
mentioning of Section 149 IPC specifically. The particulars stated in charge
no. 4 and 5 are reasonably sufficient to give the appellants adequate notice of
Section 149 IPC although not specifically mentioned. Is non- mentioning of
Section 149 in charge no. 4 and charge no. 5 a fundamental defect of an
incurable illegality that may warrant setting aside the conviction and sentence
of the appellants? We do not think so. Non-framing of a charge under section
149 IPC, on the face of the charges framed against the appellants would not
vitiate their conviction; more so when the accused have failed to show any
prejudice in this regard. The present case is a case where there is mere
omission to mention Section 149 in charge no. 4 and 5 which at the highest may
be considered as an irregularity and since the appellants have failed to show
any prejudice, their conviction and sentence is not at all affected. Tenor of
cross-examination of PW-1 and PW-3 by the defence also rules out any prejudice
to them. The offence, in the established facts and circumstances of the case,
under Section 302 read with section 149 IPC is implicit and applying the dictum
laid down by the Constitution Bench of this Court in Willie (William) Slaney,
the omission to mention Section 149 IPC specifically in the charge no. 4 and 5
cannot affect their conviction. In no way their conviction is rendered bad as
the appellants had assembled together armed with axes and eathapululu(sickle)
and were parties to the assault on D-1 and D-2 and others. In a situation such
as this it was not obligatory upon the prosecution to prove which specific
overt act was done by which of the accused.
45. The submission of
the learned senior counsel for the appellants that since D-1 and D-2 received
only one and two fatal injuries respectively, the common object at the most
could be to cause injuries and not fatal injuries hardly merits acceptance. The
deadly weapons with which appellants were armed, the number of injuries
inflicted on D-1 and D-2, and the murderous assault lead to a certain inference
that the appellants shared common object of committing murder with other
accused. That they were more than five and formed unlawful assembly is beyond
doubt. D-1 and D-2 died on the spot. PW-1 fortunately survived after surgery
and hospitalization for more than month.
46. For the above
reasons, the appeal must fail and is dismissed.
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