Alla China Apparao and Others vs State of Andhra Pradesh

B.N. Agrawal, J.—The six appellants along with three other accused persons, namely,Ramineni Gopalarao, Ala China Subba Rao and Kallikonda Venkateswarlu wereconvicted by the trial court under Sections 302/149 and each of them wassentenced to undergo imprisonment for life and pay a fine of Rs. 500/-, in defaultto undergo simple imprisonment for a period of three months. They were furtherconvicted u/s 148 of the Penal Code and each one of them wassentenced to undergo rigorous imprisonment for a period of one year. AppellantNos. 2 and 3, namely, Nallamekala Venkateswarlu and Gogasani Ramaiah, whowere also charged u/s 506 of the Penal Code, were acquitted of thesame. All the sentences were, however, ordered to run concurrently. Onappeals being preferred before Andhra Pradesh High Court, convictions andsentences of the appellants have been confirmed whereas the three accusedpersons referred to above have been acquitted of the charges leveled againstthem.

Prosecution case, in short, is that the accused persons as well asmembers of the prosecution party were residents of village Kovelamudi within thedistrict of Guntur and the deceased was also a resident of the same village.There were two groups in the village; one led by appellant No. 1 - Alla ChinaApparao and the deceased led the other. The deceased had worked asSarpanch of the village for 7 years, but subsequently, appellant No. 1 becamethe Sarpanch. In the co-operative society elections the candidate supported bythe deceased got elected. As a result of this, the accused bore grudge againstthe deceased. On 25.2.1993 at about 9.30 A.M. when the deceased was comingfrom his fields to the village on his bicycle along with PW.1 - ThotaVenkateswara Rao, the informant, who was riding on the pillion seat, all theaccused are alleged to have attacked the deceased near the house of oneDasari Ankamma. Appellant No. 1 is said to have hacked him on the right wristand accused Ramineni Gopalarao speared on the back. After receiving injuriesthe deceased is alleged to have fallen down from the bicycle whereafter, otherappellants, viz., Nallamakala Venkateswarlu, Gogasani Ramaiah, SinkaVenkataramiah, Gairiboyina Sivaramaiah and Thota Sivaiah besides accused AlaChina Subba Rao and Kallikonda Venketeswarlu dragged the deceased to anearby wall. Then appellant No. 1 hacked the deceased on his head andappellant No. (SIC) hacked him on the left side of the heck with coconut cuttingknives. Appellant No. 3 to 6 hacked the deceased on his head and accused AliChina Subba Rao and Kallikonda Venkateswarlu speared on his back. Theincident is said to have been witnessed by PWs. 1 to 4 who raised alarmwhereafter the accused persons took to their heels. Stating the aforesaid facts,a first information report was lodged by the informant at the police station on the same day at 12 Noon.

The Police after registering the case took up investigation and oncompletion thereof submitted chargesheet against all the nine accused persons,including the appellants on receipt whereof, the learned Magistrate tookcognizance and committed all of them to the Court of Sessions to face trial.

Defence of the accused persons was that they were innocent, falselyimplicated in the case on hand and no occurrence much less the occurrencealleged had taken place.

During trial the prosecution examined 15 witnesses in all out of whichPWs. 1 to 4 are eyewitnesses to the alleged occurrence and the other witnessesare Dr. G. Veera Nagi Reddi, who held postmortem examination on the deadbody of the deceased, and the investigating Officer besides formal witnesses.Upon conclusion of the trial, the accused persons were convicted, as statedabove, and on appeals being preferred convictions and sentences of theappellants have been confirmed by the High Court whereas 3 accused persons,as stated above, have been acquitted. Hence this appeal by special leave.

Shri Satyapal Khushal Chand Pasi, learned counsel appearing in supportof the appeal submitted that the High Court having acquitted the three accusedpersons after doubting the evidence of the four eyewitnesses, PWs. 1 to 4, inrelation to their complicity with the crime on the ground that the same did not fit in with the medical evidence, was not justified in upholding convictions of the appellants by placing reliance upon the very same evidence. It appears thataccording to the evidence of these witnesses the aforesaid three accusedpersons inflicted injuries on the back of the deceased and in the opinion of the High Court the deceased received only one injury on the back side, therefore, the veracity of evidence of these witnesses in relation to the said accused personshas been doubted. In our view, it is not possible to accept the submission. Thetestimony of witnesses in relation to complicity of those accused persons hasbeen doubted on the ground that their evidence in relation to them in notcorroborated by medical evidence, which cannot be taken to be a ground whileconsidering cases of the appellants against whom the evidence of theeyewitnesses has been found to be credible and corroborated by medicalevidence as well as objective findings of the Investigating Officer.

Learned counsel next submitted that all the four eyewitnesses, namely,Pws. 1 to 4 were partisan witnesses and no independent person was examined,although many independent villagers arrived at the place of occurrence. Whileconsidering the submission on this score, the trial court observed that their non-examinationwould not be fatal. All the four eyewitnesses have consistentlysupported the prosecution case unfolded in the first information report and theirevidence is corroborated by medical evidence as well as objective findings of thepolice and the same has been found to be credible by trial court as well as theHigh Court. Learned counsel appearing on behalf of the appellants could notpoint out any infirmity in their evidence, excepting saying that they are partisanwitnesses which alone, in our view, cannot be a ground to discard their sworntestimonies. According to us, the trial court was quite justified in observing thatnon-examination of the other witnesses by the prosecution would not be fatal tothe prosecution case in view of the reasons enumerated by it and the High Courtrightly did not consider this to be a ground against the prosecution.

Learned counsel then submitted that according to the evidence of PWs. 1to 4 the deceased was dragged to some distance and latter portion of theincident had taken place thereafter, but curiously enough neither any draggingmarks were found at the place of occurrence nor any injury was found on theperson of the deceased as a result of dragging. While considering thissubmission, the trial court observed that, "It is true that PWs. 1 to 4 unanimouslydeposed that the deceased was dragged to dilapidated wall and thereafter allaccused inflicted injuries and major portion of the incident took place there itself.But it is also pertinent to note the distance to which the accused dragged thedeceased. It was elicited in the cross-examination of PW. 1 and other witnessesthat the deceased was dragged to 4 to 5 yards. PW.1 says the distance as 5 to6 yards while PWs. 2 and 3 say it as three yards. Thus it indicates that thedeceased Basari Sankarrao was dragged for about 3 to 4 yards and it is a hardsurface road. It can be seen from the evidence of PW. 3 that it is a metal road. Insuch a case there is no possibility to form dragging marks or dragging injuries asdeceased was dragged only to a maximum distance of 4 or 5 yards and when theperson was dragged to such a distance, there may not be any injuries andtherefore the contention raised on behalf of the accused that there are no injuriesby dragging or otherwise do not render any assistance to their contention". Inour opinion, the view taken by the trial court was reasonable one, as such theHigh Court was quite justified is not taking this to be a ground for doubting thetruthfulness or otherwise of the prosecution case.

Learned counsel further submitted that though the occurrence is said tohave taken place on 25.2.1993 at about 9.30 A.M. and first information reportwas lodged at 12 Noon, but it was received by the Magistrate at 6.00 P.M., assuch thee was inordinate delay in sending the first information report to theMagistrate on which ground alone the appellants were entitled to an order ofacquittal in their favour. What is required u/s 157(1) of the Code ofCriminal Procedure is that it from information received or otherwise, an officer incharge of a police station has reason to suspect the commission of an offencewhich he is empowered u/s 156 to investigate, he shall, forthwith senda report of the same to a Magistrate empowered to take cognizance of such anoffence upon a police report. The expression 'forthwith' used in Section 157(1) would undoubtedly mean within a reasonable time and without any unreasonabledelay. In the case on hand, distance from the police station to Magistrate's courtwas about 20 to 25 Kms. PW.11 - Constable was entrusted with the firstinformation report by the then Sub-inspector of Police for being made over to theMagistrate. This witness stated that after handing over the first informationreport, the Sub-inspector of Police sent him to the place of occurrence where asper his instructions he stayed till 5 P.M. Later, the Inspector of Police made overthe dead body of the deceased to this witness with instructions to take the sameto the Government Hospital, Guntur, and to hand it over to the hospitalauthorities and after handing over the dead body to the hospital authorities, hewent to the Magistrate and delivered the first information report to him at 6 P.M.This witness further stated that there were only six constables attached to thepolice station on the relevant date which goes to show that at the concernedpolice station there was no full strength of constables. This apart, it is a matter ofcommon experience that there has been tremendous rise in the crime resultinginto enormous volume of work, but increase in the police force has not beenmade in the same proportion. In view of the aforesaid factors, the expression'forthwith' within the meaning of Section 157(1) obviously cannot mean that theprosecution is required to explain every hour's delay in sending the firstinformation report to the Magistrate, of course, the same has to be sent withreasonable despatch, which would obviously mean within a reasonable possibletime in the circumstances prevailing. Therefore, in our view, the first informationreport was sent to the Magistrate with reasonable promptitude and no delay at allwas caused in forwarding the same to the Magistrate. In any view of the matter,even if Magistrate's court was close by and the first information report reachedhim within six hours from the time of its lodgment, in view of the increase in workload, we have no hesitation in saying that even in such a case it cannot be saidthat there was any delay at all in forwarding the first information report to theMagistrate. Thus, we do not find any substance in this submission as, accordingto us, the first information report was promptly despatched to the Magistrate andreceived by him without any delay whatsoever. A question that now arises isthat where first information report is shown to have actually been recordedwithout delay and investigation started on its basis, if any delay is caused insending the same to the Magistrate which the prosecution fails to explain byfurnishing reasonable explanation, what would be its effect upon the prosecutioncase. In our view, ipso facto the same cannot be taken to be a ground forthrowing out the prosecution case if the same is otherwise trustworthy uponappreciation of evidence which is found to be credible. However, if it isotherwise, an adverse inference may be drawn against the prosecution and thesame may affect veracity of the prosecution case, more so when there arecircumstances from which an inference can be drawn that there were chances ofmanipulation in the first information report by falsely roping in the accusedpersons after due deliberations. Reference in this connection may be made todecisions of this Court in the cases of Pala Singh and Another Vs. State of Punjab, . Sarwan Singh and Others Vs. State of Punjab, , The State of Karnataka Vs. Moin Patel and Others, , Harpal Singh Vs. Devinder Singh and another, , Shiv Ram and Another Vs. State of U.P., , Anil Rai v. State of Bihar, and Munshi Prasad and Others Vs. State of Bihar, .

Lastly it was submitted that no blood was found on the weapons of assaultrecovered by the Investigating Officer. It may be stated that the trial court in itsjudgment has taken note of this fact and did not draw any inference the refromagainst the prosecution in view of the fact that the weapons were recovered froma pipe in which water was flowing, as such non-existence of blood thereon wasquite natural. We do not find any infirmity in reasoning of the trial court on this score.

In view of the foregoing discussing, we are of the opinion that the HighCourt has not committed any error in upholding convictions and sentencesawarded against the appellants.

Accordingly the appeal fails and the same is thus dismissed.