Boddapati Venkatramaiah (A.1) and Others vs State of Andhra Pradesh

N.Y. Hanumanthappa, J.—These appeals are directed against the judgment passed by the learned Sessions Judge, Guntur in S.C. No. 209 of 1991 dated 18-5-1995. Criminal. Appeal No. 336 of 1995 is filed by the accused Nos. 1 to 3, 5 to 13, 15 to 19, 26 and 38; and Criminal Appeal No. 337 of 1995 is filed by A. 14, A.20 and A.35. During the pendency of the trial, A.36 and A.41 died. Before the Sessions Court, A.1 to A.44 were tried for various offences, the details of which are shown hereunder :

The accusation made against the accused is that on 24-4-1990 at 6.00 p.m., all the accused armed with axes, bombs, spears, sticks and stones caused the death of one Yadla Siva Ramiah near the house of Malladi Nageswara Rao and during the course of same transaction caused injuries to Peruboyina Venkataswami (P.W. 1) and Peruboyina Srinivasa Rao (P.W. 2).

The story of the prosecution reads as follows :

All the accused and P.Ws. 1 to 7 are residents of Ikkurru village, situated in the local limits of Narsaraopet. The deceased - Yadla Siva Ramaiah is also the resident of the same village. The Kammas and Mutharasis are the dominant communities in the village. There is factional enmity between the factions of the accused and the prosecution witnesses. Most of the accused are Kammas and they are interrelated. A.1, A.2 and A.5 are brothers; A.8 to A.12 are sons of A.7; A.13 is the son of A.8; A.39 and A.40 are sons of elder brother of A.7; A.36 (died) was the son-in-law of A.9; A.36 and 37 are brothers; A.20 is the father-in-law of A.1; A.29, A.30 and A.31 are own brothers and sons of A.28; A.15, A.16 and A.17 are brothers and they are cousin brothers of A.28; A.21 and A.22 are sons of A.15; A.32 is the son of A.16; A.18 and A.19 are brothers; A.1 is the paternal grand-father of A.8 and A.9.

The factions in the village date back seven to eight years prior to the date of incident. The accused belong to Kamma Community and A.1 to A.8 are the leaders. A.1 was the Sarpanch of the village on the date of the incident. The prosecution party belong to Mutharasi community, and the deceased and one K. Anjaneyulu were their leaders. There were number of cases pending between both the groups.

On 24-4-1990 P. Venkataswami (P.W. 1) and P. Srinivasa Rao (P.W. 2) and the deceased had gone to Narsaraopet for attending the Court work. Their case was adjourned at about 3.30 p.m.. After attending to some work, all the three boarded the bus at Narsaraopet town and got down at Yanadi Colony near the village. Both the groups were involving in the acts of violence and disturbing peace in the village. Proceedings u/s 107 Cr.P.C. were initiated by the Sub-Divisional Executive Magistrate, Narsaraopet. The accused party under the leadership of A.1 bore grudge against the prosecution party and they were waiting for an opportunity to wreak vengeance against them by doing away some important persons of Mutharasi community. When P.Ws. 1 and 2 and the deceased reached the house of A.14, all the accused emerged from the house of A.14 and also from the lane adjoining the house. They all were armed with bombs, axes, sticks and stones. A.1 hurled a bomb, which hit on the back side of the head of the deceased; A.3 hurled a bomb which hit on the right thigh of the deceased; A.5 speared on the back of the deceased; A.6 and A.14 also hurled bombs which hit on the left knee and left shoulder of the deceased; A.2 beat P.W. 1 with a stick on the back of the head; A.11 axed P.W. 1 on the forehead; A.8, A.12, A.13 beat P.W. 1 with sticks on his back; A.26, A.35, A.38, A.36 (died) beat P.W. 1 with sticks on his hands; As far as P.W. 2 is concerned, A. 13 beat P.W. 2 with a stone on his chest; A.7, A.8, A.10, A.15 to A.19 beat P.W. 2 with sticks, and caused injuries to him. After receiving injuries P.Ws. 1 and 2 also fell down. Peruboyina Peddammayi (P.W. 3); Kantu Nageswara Rao (P.W. 4); Baddeti Ramaiah (P.W. 5) : Yadla Ramatheerdham (P.W. 6) and Peruboyina Chennayya (P.W. 7) and others witnessed the incident. But they did not try to rescue the deceased and P.Ws. 1 and 2, because of hurling of bombs. After the attack, the accused left the place of occurrence by raising hues and cries. Subsequently one Perugu Gotaiah (not examined) and others took the deceased, P.Ws.1 and 2 to the Government Hospital, Narsaraopet and admitted them for treatment. Dr. S. Lalithakumari (P.W. 8) sent the intimation regarding the admission of the deceased, P.Ws. 1 and 2 in the hospital to Narsaraopet Police Station. On receiving the intimation, Kanaparthy Kireetam (P.W. 10) - Head Constable, rushed to the Government Hospital, Narsaraopet and recorded the statement of P.W. 1, which is marked as Ex. P.1. The statement was recorded at 11.30 p.m.. He sent Ex. P.1 - Statement to the Narsaraopet Taluk Police Station, on the point of jurisdiction as the offence took place in the limits of Narsaraopet taluk police station. On receiving Ex. P.1, P.W. 15 - Ch. Ravikumar, Head Constable, Narsaraopet taluk Police Station registered a case against the accused in Cr. No. 60 of 1990 under Sections 147, 148, 307 read with 149, I.P.C. and Section 3 and 5 of Explosive Substance Act. Ex. P.12 is the F.I.R. On 24-4-1990 at 7.30 p.m. P.W, 17 - The Circle Inspector of Police, Narsaraopet taluk Police Station, on receiving intimation, proceeded to the village and found the situation was uncontroll able and the villagers were hurling bombs on each other. He brought the situation under control and came to know that P.Ws. 1 and 2 Y. Sivaramaniah (deceased) were shifted to Government Hospital, Narsaraopet. P.W. 17 sent express F.I.R. and took up investigation. On 25-4-1990 at 7.00 a.m., he visited the scene of offence and prepared an observation mahajar marked as Ex. P.15 in the presence of P.W. 11. He also examined P.Ws. 3 to P.W. 7.

On 25-4-1990 at 8.00 a.m., P.W. 9 - Dr. K. K. Prasad, C.M.O., Government General Hospital, examined the deceased, and found him dead. P.W. 9 sent death intimation - Ex. P.6 to the outpost Police attached to the hospital. On the same day at 1.00 p.m., P.W. 15, Headconstable of Narsaraopet Police Station, received Ex. P.6 and altered the section of law to one u/s 302, I.P.C. Ex. P.13 is the altered F.I.R. and the same was sent to all the concerned.

On the same day P.W. 17 conducted inquest at 4.00 p.m., in the presence of P.W. 13. Ex. P.9 is the inquest report and then he referred the body for Post-mortem examination. Dr. G. B. Raj Kumar, P.W. 14, conducted autopsy over the dead body of the deceased on 26-4-1990. Ex. P.10 is the post mortem report. According to Doctor, the cause of death of the deceased was due to injury to the head. On 25-5-1990. P.W. 17 arrested A.29, A.38 and A.43; A.3, A.5, A.6 and A. 14 were arrested at Ravipadu Bus-stand.

On completion of investigation, P.W. 17 filed charge-sheet in the Court of the I-Addl. Munsiff Magistrate, Narsaraopet, which is numbered as P.R.C. No. 42 of 1990. After filing of the charge-sheet, A.36 and A.41 died. As such, the case against them was abated. As the accusation made against the accused was exclusively triable by the Court of Sessions, learned I-Addl., Munsiff Magistrate, Narsaraopet, committed the case to the Sessions Division, Guntur who in turn made over the case to III-Additional Sessions Judge, Guntur, who, after going through the papers, took cognizance of the offence and registered it as S.C. No. 209 of 1991.

After hearing the prosecution and accused and upon considering the documents, learned Sessions Judge framed the following charges against the accused :

"Charge No. 1 : u/s 148, I.P.C. against A.1 to A.35, A.37 to A.40 and A.42 to A.44 for the offence of rioting, arming with deadly weapon like bombs, axes, sticks and stones with the common object to kill the deceased and P.Ws. 1 and 2.

Charge No. 2 : Against A.1, A.3, A.5, A.6 and A.14 u/s 302, I.P.C. for causing the death of the deceased.

Charge No. 3 : Against A.2, A.4, A.5, A.7 to A.13, A.15, A.35, A.37 to A.40, A.41 to A.44 u/s 302 read with Section 149, I.P.C. in respect of the offence mentioned in charge No. 2.

Charge No. 4 : Against A.2, A.8, A.11 A.12, A.13, A.26, A.35, A.38 and A.39 u/s 307, I.P.C. on the allegation that they attempted to commit murder of P.W. 1.

Charge No. 5 : Against A.1, A.3 to A.7, A.9, A.10, A.14 to A.25, A.27 to A.34, A.40, A.42, A.43 and A.44 u/s 307, I.P.C. read with Section 149, I.P.C. in respect of the offence mentioned in charge No. 4.

Charge No. 6 : Against A.7, A.9, A.10, A.15, A.16, A.17, A.18, A.19 and A.20 u/s 307, I.P.C. on the allegation that they attempted to commit murder of P.W. 2.

Charge No.7 : Against A.1 to A.7, A.8, A.11 to A.14, A.21 to A.35, A.37 to A.40, A.42 to A.44 u/s 307 read with Section 149, I.P.C. in respect of the offence mentioned in charge No. 6.

Chanrge No. 8 : Against A.1, A.3, A.6, A.14 u/s 3 and 5 of the Explosive Substances Act for hurling bombs against the deceased."

The above charges were read-over and explained to the accused. The accused pleaded not guilty.

To prove its case, the prosecution examined seventeen witnesses as P.Ws. 1 to 17 and got marked eighteen documents, Exs. P.1 to P.18 and M.Os. 1 and 2 (blood stained clothes and controlled earth).

P.Ws. 1 to 7 are the eye witnesses to the occurrence of the alleged incident. Among them, P.Ws. 1 and 22 are the injured eye witnesses. After closure of the evidence of prosecution, though a chance was given to the defence to adduce its evidence, it did not avail the opportunity. Therefore, u/s 313, Cr.P.C., the accused were examined.

Learned Sessions Judge, after appreciating the entire evidence, both oral and documentary, taking into consideration the motive part, presence of witnesses at the time of the alleged incident, other information collected during investigation, the injuries alleged to have been caused by each accused, comparing the same with the wound certificates issued by Dr. Lalitha Kumari, P.W. 8 and the Post-mortem certificate issued by Dr. G. B. Raj Kumar, P.W. 14, found that A.1, A.3, A.5, A.6 and A.14 were responsible for causing the death of Y. Shiva Ramaiah, deceased, as told by the prosecution, by using deadly weapons referred to in the statement of witnesses; and A.2, A.7, A.8, A.10, A.11, A.12, A.13, A.15, A.16, A.17, A.18, A.19, A.20, A.26, A.35 and A.38 were responsible for causing injuries on P.Ws. 1 and 2. Accordingly, learned Session Judge convicted A.1, A.3, A.5. A.6 and A.14 for the offence punishable u/s 302 read with Section 149, I.P.C. and u/s 3 of the Explosive Substances Act and sentenced them to undergo imprisonment for life, and four years respectively, that both the sentences passed shall run concurrently. Further, learned Sessions Judge convicted A.2, A.7, A.8, A.10, A.11, A.12, A.13, A.15, A.16, A.17, A.18, A.19, A.20, A.26 A.35, and A.38 for the offence punishable u/s 324 read with Section 149, I.P.C. and sentenced them to undergo rigorous imprisonment for two years each. As against A.4, A.9, A.21, A.25, A.27 to A.34, A.37, A.39, A.40, A.42, A.43, and A.44 learned Sessions Judge held that the accusation made against them was not proved and acquitted them of all the charges levelled against them.

Aggrieved by the said conviction and sentence, A.1 to A.3, A.5 to A.13, A.15 to A.19, A.26 and A.38 preferred Criminal Appeal No. 336 of 1995; whereas A.14, A.20 and A.35 preferred Criminal Appeal No. 337 of 1995. Since both the appeals arise out of the same order, both the appeals were heard and disposed of together.

Sri C. Padmanabha Reddy, learned Senior Advocate for appellants in Crl. A. No. 336 of 1995; Mr. Chandra Shekarrao learned Advocate for appellants in Crl. A. No. 337 of 1995 and Smt. Susheela Devi, learned Public Prosecutor were heard.

On behalf of the appellants, it is urged that the conviction and sentences ordered by the trial Court against the appellants is arbitrary, perverse and resultant of wrong appreciation of evidence. The trial Court should not have placed much reliance on the interested testimony of P.Ws. 1 to 7. The trial Court erred in not noticing that there was inordinate delay in lodging the report, Ex. P.1. Ex. P.1 is the fabricated document for the reasons that except mentioning the names of forty accused, no other details as to the names of other eye witnesses, overt acts mentioned either with regard to the attack on the deceased or with regard to the attack on P.Ws. 1 and 2. The Circle Inspector of Police, P.W. 17, who reached the village at 8.00 p.m., did not record any statement of the witnesses, including P.Ws. 3 to 6. who were present in the village. This circumstance was not properly considered. This omission, though serious in nature, was not properly considered by the trial Court.

To show that Ex. P.1 is not genuine and on the other hand it is the result of deliberation, the statement of P.W. 10, the Headconstable, is sufficient, who admitted that when he visited the village, there were forty names of accused in the list shown by the leader, but he did not verify the list with the names mentioned in Ex. P.1. Learned Sessions Judge failed to notice the discrepancy as to the contents in Ex. P.1, inquest report Ex. P.9 and the nature of injuries caused as stated in the evidence of the prosecution witnesses. The evidence given by P.Ws. 1 to 7 as to the overt acts and injuries caused on deceased, P.Ws. 1 and 2 is falsified in view of injuries found in the wound certificates given by P.W. 8 at Exs. P.2 and P.4 and post mortem certificate issued by P.W. 14 at Ex. P.10. There is nothing to indicate that extensive damage was caused to the body of the deceased due to hurling of bombs at him. One more circumstance is that P.W. 8, who first examined the deceased and P.Ws. 1 and 2, stated categorically that she did not find any bomb blast injuries on the deceased and P.Ws. 1 and 2. P.W. 14 has stated, on oath, that injuries 3, 10 and 11 found on the body of the deceased as shown in the post mortem report, Ex. P.10, could not have been caused by direct landing and explosion of bomb, but the same might have been caused only by the splinters of bomb. The same could have been considered by the trial Court. If P.Ws. 1 and 2 were really in the company of the deceased, when the bombs were hurled at them, definitely they would have received some splinter injuries. This aspect has also not been considered. The overt acts attributed to each of the accused are not corresponding with the injuries found either in the wound certificates or post mortem report. As such, the opinion of the Doctor should prevail than the statement given by the prosecution witnesses. There is discrepancy as to which injury resulted in causing death of the deceased. Learned Sessions Judge is not justified in convicting the accused for the offences alleged. Learned Sessions Judge also should have noticed the legal position that when accused are charged with both the offences u/s 148 and Section 149, I.P.C. together with other offences, acquittal u/s 148, I.P.C. is not justified and further to say that they have been convicted u/s 149, I.P.C. The trial Court reposes much faith and confidence in the statements of P.Ws. 1 and 2, who are close relatives of the deceased and whose very presence is doubtful in view of the fact that they have not correctly stated the overt acts of each of the accused and the weapons they used. The trial Court should have also noticed that is it possible to believe that P.W. 1 when he was injured and was capable of remembering the names of all the accused and the role they played while attacking the deceased and P.Ws. 1 and 2. It looks an artificial one and supports the contention that Ex. P.1 is concocted one with a view to rope in as many persons as possible as accused in the crime as there is ill-will between the two groups, one led by the deceased and the other led by the accused. The conviction and sentence is based on unreliable, unacceptable and artificial evidence and discredited by artificiality and the medical evidence. Thus contending, requested that the conviction and sentence ordered by the trial Court against the appellants be set aside.

Smt. Susheela Devi, learned Public Prosecutor very strenuously alleged that the case on hand is a clear case that all the accused themselves formed into unlawful assembly and caused the death of the deceased, Sivaramaiah. It is not the case as if it occurred at a spur of moment. But it was a pre-planned, pre-meditated one in order to achieve the goal of murdering the deceased due to group rivalry which is evidenced by several criminal cases pending between both the parties. Ex. P.1 is not fabricated or made out of deliberations, but reveals the truth as spontaneously told by P.W. 1, the injured witness, who saw the entire incident, including he being attacked and injured. Mere delay of five and half hours in recording the said report is not so fatal. Complaint is not a substantial piece of evidence. Merely because the witnesses are close relatives, it is not proper to discredit their evidence. On the other hand, it is but natural for the witnesses to state the truth. P.W. 1 in his statement stated all that has happened, the role played by each accused, overt acts attributed to accused, weapons used including the injuries caused. The same has been evidenced in inquest report and also wound certificates Exs. P.2 to Ex. P.4 and Ex. P.10. Post-mortem report. Injuries told by P.W. 2 have been probablised. Mere small discrepancy shall not discredit such evidence. It is not in each and every case the medical report shall weigh over the statement of the witnesses. The medical report may take as precedent when ocular evidence is not trust-worthy and unacceptable. The ocular evidence adduced probabilises the case of the prosecution. The evidence of the prosecution witnesses should be taken into account. P.W. 2 is also an injured witness. His statement is corroborated with that of P.W. 1. Their evidence is corroborated with the statement of P.Ws. 3 to 7, who are also eye witnesses. There is no illegality in conducting the investigation. Neither there is any improvement or adding. The entire story has been revealed by the prosecution. P.W. 17 has conducted investigation with all seriousness and sincerely. If the prosecution wanted to involve innocent people, why other persons belonging to the group of the accused were left. Inclusion of four names at the time of filing of charge-sheet to the forty names already mentioned in Ex. P.1, has not vitiated the investigation. There is no illegality in such inclusion. The trial Court appreciated the entire evidence with all care and caution, and came to the correct conclusion. If the trial Court had not considered the evidence properly, it would not have convicted A.1, A.3, A.5, A.6 and A.14 alone for the offence punishable u/s 302 read with Section 149, I.P.C. but would have convicted others also for the same offence. Acquittal of accused u/s 148, I.P.C. will not absolve them for the charges levelled against them u/s 149, I.P.C. as rightly done by the trial Court. The conviction and sentence ordered by the trial Court is based on proper appreciation and scrutiny of the evidence accepting only the portion which is quite relevant and permissible. Thus contending, she sought that both the appeals be dismissed.

Since the accused involved are many in number, the evidence given is very voluminous, the village is a faction one, that to see that justice is not only done, but seen to have been done, also keeping in mind in matters of this type, it is the paramount duty of the Court to see that the guilty are punished and the innocent are protected, we went through the entire evidence so also the judgment of the trial Court. To know how far the trial Court was justified in convicting the appellants in both the appeals, it is proper to once again scrutinise the evidence of the prosecution witnesses.

P.W. 1 is the injured eye witness. According to him, himself, P.W. 3 and the deceased boarded the bus at Narsaraopet after attending the Court work.

They got down at Yenadi colony in their village. They were all proceeding to the village. When they reached near the house of A. 14 - Malladi Nageshwara Rao, all the accused persons emerged from the house of A. 14 as well as from the side lane. According to him all the accused were armed with country made bombs; sticks and stones and attacked them. He has spoken about the overt acts of the accused made on him, deceased and the other witnesses. According to him, A.1 hurled bomb which hit the deceased on his head; that A.3 hurled a bomb Which hit on the right eye of the deceased; A.14 hurled a bomb on the deceased which hit on the left shoulder; A.6 hurled a bomb on the deceased which hit on the left knee of the deceased; A.5 stabbed the deceased with spear on his back; A.2 beat P.W. 1 with a stick on his head; A.11 hacked P.W. 1 with an axe on his fore-head; A.8, A.12 and A.13 beat P.W. 1 with sticks on his back; A.26, A.35, A.36, A.38 Thumati Venkataramaiah and A.39 Kantu Narasimhar Rao beat with sticks on the hands of P.W. 1; A.13 fisted him holding a stone on his chest; A.7, A.8, A.10, A.15, A.16, A.17, A.18, A.19 and A.20 hurled stones on him causing injuries. According to him, the accused also hurled bombs and stone and went into the village. He has also stated that others who were near the Rama temple also witnessed the incident. When he was in the Government Hospital, Narsaraopet, police came and recorded his statement and in the cross-examination, this witness has stated that deceased did not contest in any elections or holding any post. He has also admitted that he along with others beat A.14 and a case is pending in the Court at Narsaraopet. In another case - C.C. No. 296 of 1988 on the file of I-Addl., Munsiff Magistrate, Narsaraopet, he was not examined as P.W. 14. He admitted that he is one of the respondents in the proceedings under Section, 107, Cr.P.C. He has further stated that on seeing the accused persons, himself and P.W. 3 and deceased did not raise any cries. Accused persons came to the main road one after the other in line, Accused persons surrounded them. The sticks armed by the accused were about two yards length and two inches in diameters. Bombs were hurled by the accused and they were exploded. After hurling bombs, they raised cries. Bombs were hurled from all the sides as the accused surrounded them. The bombs hurled, by A.1, A.3, A.6 and A. 14 landed on the body of the deceased and exploded. Himself, deceased and P.W. 2 were nearer to each other at a distance of three or four feet. The accused surrounded them within a radius of seven feet. The entire incident took place for about ten minutes. He was also beaten by one after the other. He has stated in the suggestion that on the date of the incident, after 7.00 p.m., there was a clash between the two groups and exchanged stones and bombs and that in that melee they sustained injuries at different places and at different times. He has stated in his further cross-examination that the accused persons did not attack them simultaneously. First the deceased was attacked and thereafter himself and P.W. 2.

P.W. 2 is another injured eye witness has repeated in a parrot like manner what P.W.1 has stated. P.Ws.3 to 7 repeated the statements of P.Ws. 1 and 2 in a parrot like manner. In Ex. P.1 while mentioning the names of forty persons and some others, it is mentioned that the accused persons came there, abused the deceased and the witnesses - P.Ws. 1 and 2 in filthy language saying to kill them, attacked and beat them with knives, spears and stones. P.W. 1 was injured on the left hand and stomach. Deceased and P.W. 2 also got injuries and fell down. This has happened due to the old factions between them. In the complaint, no specific overt acts have been mentioned nor the names of other witnesses, who witnessed the incident by staying at Ramalaya, mentioned.

It has come in the evidence of the prosecution that after the deceased and P.Ws. and 1 and 2 were attacked, they were taken to the Narasaraopet Government Hospital where they were examined by P.W. 8 - Dr. S. Lalitha Kumari. She has stated that she examined the deceased and injured on 24-4-1990 at 10.45 p.m., She gave wound certificates - Exs. P.2 to P. 4. Exs. P.2 and P.4 are the wound certificates relate to P.Ws. 1 and 2 and Ex. P.3 is the wound certificate relates to the deceased. On examining P.W. 1, she found the following injuries :

A lacerated wound of 5 cm. X 1 cm. X bone deep in the fore-head. Fresh bleeding present.

Contusion deformity, redness and tenderness present in lower half of the left upper arm,.

Contusion of 10 cm. X 4 cm. size present in the left side of the chest in the mid axillary line. Transverse in direction.

Age of the injuries within 6 hours and he was referred to G.G.H., Guntur for X-ray and further treatment. She has issued wound certificate and it is Ex. P.2.

On the same day at 10.30 p.m., she has examined Yadla Siva Ramaiah, deceased and found the following injuries :

Depression of the bone in the left parietal region of the head with over lying lacerated wound of 8 cm. X 1/2 cm. X bone deep present, fresh bleeding present. Contusion around the left eye present. 2. Multiple abrasions on the left shoulder present. No charring, fresh bleeding present. 3. A lacerated wound of 2 cm. X 1 cm. X muscle deep in the back of the upper 1/3 of the right left. Fresh bleeding present.

Age of the injuries within 6 hours and he was referred to G.G.H., Guntur for further treatment. Ex. P.3 is the wound certificate issued by her.

On the same day at 11.00 p.m., she has examined Peruboyina Srinivasarao (P.W. 2) and found the following injuries.

Cut injury of 2 cm. X 1/2 cm. X 1/2 cm. size of the left index fingers.

Pain tenderness with contusion of 8 cm. X 4 cm. in the right side of the chest.

Age of the injuries within 6 hours. He refused to admission. Ex. P.4 is the wound certificate issued by her. The injuries are simple in nature and could have been caused by blunt object like stones.

The injuries sustained by P.W. 1 could have been caused by blunt object. The injuries found on the persons of Yadla Sivaramaniah (deceased) also could have been caused by blunt object. She does not find any bomb blast injuries on P.Ws. 1 and 2 and Siva Ramaiah (Deceased) as such she could not note in the wound certificates.

It has come in the evidence of P.W. 14 - Dr. G. B. Rajkumar, on conducting autopsy over the dead body of the deceased, he found the following injuries :

External :

Lacerated wound of 10 X 1.5 cms. X bone deep over left frontal region of scalp, vertically placed.

Abrasion of 3 X 2 cms. over left side of forehead near outer canthus of eye brow.

Abrasion with blackening of 2 X 1.5 cms. over outer aspect left shoulder.

Abrasion of 2 X 1 cm. over upper part of left shoulder.

Diffuse swelling of both lids of left eye.

Abrasion of 4 X 3 cms. over middle of forehead near scallpo cutaneous junction.

Lacerated wound of left side of back of abdomen measuring 4 X 2 X muscle deep 3 cms, away from spine at the level of costal margin.

Multiple abraded areas of varying sizes over back of chest in an area of (10 X 8 cms.) in the middle of both scapulae.

Lacerated wound of 2 X 1 cm. X muscle deep over right side of back of chest 1 cm. away from spine at the level of costal margin.

Multiple abraded areas of varying sizes with blackening over back of chest on left side in an area of 8 X 7 cms. near costal margin.

Multiple abraded areas with blackening of varying sizes over back of left upper arm in an area of 4 X 3 cms. in middle portion.

Laceration over back of left elbow measuring 3 X 1 cm. X bone deep, obliquely placed.

Laceration of 6 X 2 cms. X bone deep over back of right knee obliquely placed.

Internal :

Contusion of 16 X 14 cms. over both frontal regions of scalp.

Contusion of 6 X 5 cms. over left temporo parietal region of scalp.

Contusion of 17 X 14 cms. over left parieto occipital and right parietal region of scalp.

Fracture with sutural separation of right fronto parietal bones measuring 6 cms. in length, medially, horizontally placed.

Extradural haematoma 5 X 4 cm. 0.5 cm. over right fronto parietal regions of brain.

Diffuse subdural haemorrhage present all over the brain.

The above injuries are antemortem in nature. The approximate time of death is 24 to 36 hours prior to postmortem examination. The cause of death to the best of his knowledge and belief was due to head injury. The P.W. Certificate is given by him and it is Ex. P.10 Skin bits taken from external injuries 1, 3 and 10 and preserved for evidence of explosive material. Injury Nos. 3, 10 and 11 are caused by bomb explosion. The lacerated wounds could have been caused by blunt object like stick, stone. Abrasions could have been caused by rough object. He has received the opinion of Director FSL, Hyderabad in respect of the preserved skin bits. The Director, FSL, Hyderabad''s report shows that potassium, chlorite, sulphide, arsenic, sulphate found in item No. 1 i.e., skin bits. Ex.P. 11 is the copy of the report attested by the Director of FSL, Hyderabad.

25 P.W. 13 spoks to inquest report - Ex. P.9. P.W. 17 spoke about the investigation and laying of the charge sheet. In his cross-examination he has stated with reference to P.W. 1 as follows :

"P.W. 1 did not state before me that the deceased was also leader along with Kantu Anjaneyulu. He did not state the names of A.41 to A.44 before me. He did not state that on that day he went to Narasaraopet on Court work and the case was adjourned at 3.30 p.m. He did not state to me that the assailants emerged from the house of A. 14 and by the side lane before attacking". In respect of P.Ws. 4, 5, 6 and 7, he deposed contrary to the one deposed by the said witnesses. He stated that P.W. 1 did not state before him that the witnesses witnessed the occurrence from Ramalayam.

Apart from that, we have got other evidence viz., inquest report, witnesses to the said report, F.I.R., and other evidence. As far as inquest report is concerned, there is variation as to the information available in the inquest report, Ex. P.9 to the one available in Ex. P. 1. Ex. P.10 is the postmortem certificate, wherein the nature of injuries and cause of death have been mentioned, which has already been referred to in the statement of P.W. 14.

By analysing of the evidence what emerges is that there is much doubt as to the genuineness of Ex. P.1 for the following reasons viz., no proper explanation as to why there is delay of five and half hours to lodge the complaint, absence of overt acts of each accused on the prosecution witnesses, mentioning the specific injury caused and the names of other witnesses. Further it has come in the evidence of P.W. 10 that he gave the names of assailants mentioned in Ex. P.1. After recording the statement of P.W. 1, when P.W. 10 came out of the room, the villagers gave a list of assailants. There were forty names shown by the elders, but he did not tally the names shown by P.W. 1 and the names given in the list by the elders. He also stated that P.W. 1 gave forty names in the statement. Keeping in mind the strained relationship between the accused party and the deceased party, there being faction ridded Ex. P.1 must have been prepared after due deliberation with a view to implicate as many persons as possible as accused from the opposite party. Relating to overt acts of the accused on the deceased and the witnesses concerned, Ex. P.1 is silent. For the first time in the Court, that too after the existence of Ex. P.2 to P.4 and Ex. P.10, the witnesses have stated as mentioned above. Ex. P.2 to P.4 issued by P.W. 8 - Dr. Lalitha Kumari do not correspond with the overt acts of the accused as spoken to by the prosecution witnesses. For the first time, the prosecution chose to distribute the overt acts of each accused at the time of drawing up of the inquest report. Attack on P.Ws 1 and 2 which resulted in injuries, does not tally with the so called overt acts of each accused. The finding of the trial Court with the injuries found on P.Ws 1 and 2, mentioned in paras 24 and 25 of the judgment, do not correspond with the overt acts. Again the injuries found on the dead body of the deceased discussed by the learned trial Court in paras 23 and 24 of the judgment do not establish that the said injuries were caused as a result of specific overt act of the accused A.1, A.3, A.5, A.6 and A.14. When deceased, P.Ws.1 and 2 were going altogether, bombs were thrown at them. It is difficult to believe why deceased alone received bomb blast injuries and not P.Ws 1 and 2. It is difficult to believe that A. 1, A. 3, A. 5, A. 6 and A. 14 were present at the time of incident and participated in the incident. The medical evidence, particularly the evidence of P.W. 14 is at variance with the evidence of the eye-witnesses. It is clear from the evidence of P.W. 14 that at the time of conducting autopsy over the dead body of the deceased, he noticed 13 injuries on the deceased. Out of them, injury Nos.3, 10 and 11 were caused by bomb explosion. He has stated that these three injuries could not have been caused by direct landing and explosion of bomb and they could have also been caused by splinters of the bomb. There are no injuries caused on the prosecution witnesses, which can be attributed to A. 1, A. 3, A. 6 and A. 14. There is abrasion with blackening over outer aspect of the left shoulder and which is not attributed to A. 14. The same does not fit into the prosecution case because P.Ws. 1 and 2 stated that the bomb hurled by the accused hit the deceased on the left shoulder. Thus the medical evidence rules out the said injury having been caused by landing and explosion of bomb. The learned trial Court, though comes to the conclusion that there are no corresponding injuries to the overt acts attributed to the accused, but strangely comes to a finding that the bombs might have been exploded on the ground and the splinters might have hit the deceased, which is not at all pleaded by the prosecution. The observation report does not show that the explosions took place near the place where the deceased fell down. Attack on P. W.1 by several accused falsified by the evidence of P. W.8, who noticed only three injuries on P.W . 1. According to P. W.8, the first injury is a lacerated wound on the fore-head which could not have been caused by hacking with an axe by A. 11. If really he was hacked, there would have been an incised wound. The other two injuries are not attributed to any accused. According to P.W. 8, he noticed only two injuries on P.W. 2. First injury is not attributed to anybody, but the second injury is attributed to A. 13. It is stated that P. Ws. 1, 2, deceased and others were going closely to each other. If the bombs were blasted, they too would have received bomb injuries apart from deceased. The absence of the same disproves the presence of the witnesses. In Ex.P. 1, P.W. 1 has not stated, who are the assailants attacked on P.W. 2. From the above evidence it is clear that there are no injuries corresponding to the overt acts attributed to the accused. At best, each accused could have been convicted for independent overt acts, if proved, but unfortunately the same is not proved in the present case. Learned Sessions Judge, after appreciating the evidence found only A. 1, A. 3, A. 5, A. 6 and A. 14 were responsible for causing the death of the deceased and others caused injuries on P. Ws. 1 and 2. They were charged for different offences including offences punishable under Ss. 148 and 149, I.P.C., but learned Sessions Judge acquitted all the accused under S. 148, I.P.C., but convicted them for the offence punishable under S. 149, I.P.C., which is illegal for the reasons that when once there is acquittal under S. 148, I.P.C., invoking the provisions of S. 149, I.P.C. is not warranted. The trial Court observed in its judgment that the evidence of P. Ws. 1 to 3 is almost identical, but rejected the defence contention that the same is tutored one. Regarding variance in the medical evidence and ocular evidence, it is observed that "comparison" of the evidence of both the doctors clearly indicate that their observation and their opinion regarding the injuries is inconclusive and not definite. So far as the evidence of the eye witnesses regarding the hurling of bombs by A. 1, A. 3, A. 6 and A. 14 is concerned, it is consistent. The only thing is that they mentioned the specific parts of the body where the bombs hurled by the above named accused hit the deceased. In my opinion it is an exaggerated version." According to the learned Sessions Judge, the bombs might have fallen by the side of the deceased and exploded and caused the injuries to the deceased. He observed that simply because the prosecution failed to explain how the deceased received each and every injury and by whom, we cannot conclude that the attack by the above named accused as alleged by the prosecution is false. When Court comes to a conclusion that the prosecution has proved the offence in the background of common object with the unlawful assembly, in the absence of establishing which overt act fatal, the aid of S. 149, I.P.C. is invoked. According to him, his finding is that P. Ws. 1 and 2 proved the case of the prosecution against A. 1, A. 3, A. 5, A. 6 and A. 14. The statements of other witnesses proved the involvement of other accused.

The reasoning adopted by the trial Court to reach such conclusion is not based on proper appreciation of evidence. It committed a mistake in not taking into consideration the variance of medical evidence and ocular evidence. The trial Court again erred in not noticing that failure to prove the overt acts against each accused will give room for doubt as to the involvement of the accused. It has been explained earlier that Ex. P. 1, on the face of it, looks a bit unnatural, but this aspect was not considered by the trial Court. Regarding delay in lodging the complaint, there is no explanation. While appreciating the evidence, the trial Court should have noticed that it was the duty of the prosecution to establish the overt acts alleged to have been attributed to the accused and must be corroborated with the evidence. To support his contention, learned counsel for the appellants relied upon the decisions of the Division Bench of this Court in B. Gonurappa v. State (1969) 2 ALT 200 and V. Sathyamaiah v. State of A.P. (1978) 1 APLJ 83 and the decisions of the Supreme Court in Baul and Another Vs. State of U.P., and in Bawa Singh Vs. State of Punjab, .

There is much contradiction between the information given in Ex. P. 1 and the information available in the inquest report, Ex. P.9, as to the injuries caused on the witnesses, both the injured and other eye witnesses. On comparison to the medical evidence, there is much inconsistency and improbability creating a doubt as to either the presence of the accused and the role played or the presence of the witnesses alleged to have witnessed the incident. Appreciation of evidence shall always be cogent, clinching and convincing. It should not give room for two opinions. Read from any angle, it must point out only towards one direction that is involvement of the accused in the alleged incident.

It has come in the evidence that both the accused party and the prosecution party belong to rival group. In a group rivalry, there is always a tendency to rope in more persons as accused. Any disturbance as to the presence of persons participated in the commission of offence viz., stating a few in the complaint and improving in the deposition and involving others as participants in attack, not safe to accept such evidence. But conviction, if any, only against those persons, whose actual involvement is proved and established, is proper as held by the Supreme Court in Sherey and others Vs. State of U.P., . As to the overt acts, injuries caused, cause for the death as told by the Doctor, full of discrepancies and variations. It has shaken the very version of the prosecution and the discrepancies made out are not normal errors and also not due to lapse of memory.

If there is difference as to injuries caused by the alleged overt acts spoken to by the witnesses, and the evidence given by the Doctor, it is not safe and proper to base conviction on such inconsistent evidence and on the other hand benefit of doubt shall be given to accused as held by the Supreme Court in Mohar Singh and Others Vs. State of Punjab, . Similar view has been reiterated by the Supreme Court in Milkiyat Singh and Ors Vs. State of Rajasthan, .

From the above discussion, it is clear that there is much difference, artificiality and untruthfulness in preparing Ex. P-1 in regard to the overt acts, injuries caused. There is substantial difference both in ocular and medical evidence as to the injuries and the cause for death. As such, it is very difficult to agree with the prosecution that the accused were present at the scene of offence and participated in the alleged incident. On the other hand, as told by the prosecution itself, the village is full of factions. Some of the members of the deceased party might have availed the opportunity to implicate as many persons as possible as accused belonging to the accused party. When there is inconsistency between the direct evidence and the medical evidence, there is also doubt about the participation of the accused persons, who said to have caused injuries on the prosecution witnesses and their very presence proves doubtful. As such, the accused are entitled for the benefit of doubt. Since the evidence of the eye-witnesses as to the overt acts, injuries caused both on the deceased and P. Ws. 1 and 2 is quite unreliable, it is not safe to accept such evidence in preference to the evidence of medical expert. It is unsafe to base conviction on the evidence of interested witness which is uncorroborative, further, where the medical evidence is against the prosecution.

Since the testimony of the so called eyewitnesses has been discredited with other evidence available particularly the medical evidence, the trial Court is not justified in believing such witnesses and convicting the appellants. It is also not right in holding that the appellants are found guilty u/s 149, IPC, when they were acquitted u/s 148, IPC. Thus, the entire judgment of the trial Court is a resultant of improper appreciation of evidence. Hence the judgment of the trial Court is not the outcome of the proper evaluation of the evidence. It lacks judicious approach. Accordingly, the conviction ordered by the trial Court against the appellants deserves to be set aside.

In our view, the prosecution has failed to prove the involvement of the appellants for the charges levelled against them. Their conviction and sentence ordered by the trial Court have to be held as illegal. Hence the conviction and sentence ordered by the trial Court dated 18-5-1995 against the appellants in both the appeals are set aside and both the appeals are allowed.

It is ordered that the appellants herein are ordered to be set at liberty forthwith, if they are not required in any other case. Their bail bonds, if any shall stand cancelled.

Appeal allowed.