Pagoti Sreeramulu and Another vs State of A.P.

K. Jayachandra Reddy, J.—A gruesome rioting took place on 18th August, 1979 at about 6 A.M. in Narasinguballi Village of Srikakulam District. One Panga Sreeramuly, deceased No. 1 was killed in a cruel manner on the main street of the Village and his younger brother Panga Bairagi, deceased no 2, was chased, killed and beheaded and the head was thrown away somewhere and the trunk was found in a canal. In respect of this occurrence, 15 accused persons were tried for offences punishable under Sections 147, 148, 302, 302/149, 341 and 201 I.P.C. The learned trial Judge convicted A-1 and A-2 u/s 302 I.P.C. simpliciter and sentenced each of them to undergo imprisonment for life and acquitted them of all other charges. The remaining 13 accused were acquitted. The convicted accused preferred an appeal challenging their sentence and the State also filed an appeal challenging the acquittal of the 13 remaining accused in the High Court. The High Court dismissed the appeal filed by the State but altered the conviction of A-1 and A-2 to one under Sections 302/149 and maintained the sentence of imprisonment for life. Hence the present appeal.

The prosecution case is as follows:

All the accused, two deceased persons and the material witnesses belong to the same Village. The accused are all inter-related. Deceased No. 1 Panga Sreeramuly was the brother of deceased No. 2 Panga Bairagi. P.W.2 is the widow of deceased No. 1 and among the witnesses P.Ws 3 and 6 are brothers. P.W.I is their sister and P.W.5 is the son of P.W.I. The house of the accused was situated on the opposite side of the house of the deceased.

P.W.6, Bavajee was appointed as Village Munsif of Narasinguballi Village in 1976 and after he took charges, he got the properties of A-1, A-6 and A-10 attached for realisation of arrears of land revenue. Since then the accused bore grudge against him. About five months prior to the date of occurrence, the brother of A-1 was murdered. In that case the two deceased in the present case, P.W.6 and some others figured as accused. They were released on bail and since then the accused were threatening to kill the deceased persons and P.W.6. P.W.6, being afraid of being killed, left the Village and was staying in his father-in-law's house in a different village. On the date of occurrence at about 6 A.M. deceased No. 1 was proceeding in the main street towards the eastern side of the Village to attend to agricultural operations. At that time, deceased No. 2 was at a nearby well. P.W.I was proceeding behind deceased No. 1 to call women coliies. P.W. 3 having gone to answer the call of nature was under the banyan tree about 126 feet away from the place of occurrence. P.Ws. 2 and 4 were sitting on the peal near the cattle shed of P.W.6 which was only 70 feet away. P.W.5 was standing in front of the house and P.W. V and another were on their way to the Village. When deceased No. 1 was proceeding in front of the house of A-4, A-1, A-2, A-3, A-5 and A-10 came out from the house of Gondu Venkati. A-1 was armed with a knife, A-2 was armed with a battle axe, A-3 was armed with a Kattuva and A-5 and A-10 were armed with spears. A-1 cut deceased No. 1 on the neck with the knife. A-2 axed him with the battle axe. While deceased No. 1 was falling down, A-10 pierced him with the spear on his head. Then the other accused dealt blows with the sticks in their hands. They all surrounded and indiscriminately wounded him. Deceased No. 1 died instantaneously. After killing deceased No. 1, the accused ran towards east saying that they would also kill his brother Pang Bairagi, deceased No. 2. On seeing the accused, deceased No. 2 started running but was chased and they put a rope around the neck of deceased No. 2 and dragged him to the field. Thereafter nobody has seen as to how deceased No. 2 was killed and only the trunk was found in the canal. Seeing the accused dragging deceased No. 2, P.W.I immediately proceeded to Narasannapet Police Station an gave a report Ex.P.1to the Head Constable P.W.15 at about 9.30 A.M. The case was registered and the F.I.R. was issued. The Circle Inspector, P.W.18 on receipt of the F.I.R. left Narasannapet and reached Narasinguballi Village by 11 A.M. He held the inquest over the dead body of deceased No. 1 and examined P.Ws 1 to 5. The dead body was sent for post-mortem. He received an express F.I.R. relating to the missing person Panga Bairagi, deceased No. 2. He got the information on 19.8.79 that the headless body of deceased No. 2 was seen floating in the canal. The Circle Inspector held the inquest and that dead body was also sent for post-mortem. The accused were arrested and after completion of the investigation, the charge-sheet was filed. The prosecution mainly relied on the evidence of the eye-witnesses P.Ws. 1,2,4,5 and 7. P.Ws. 3 and 8 were also examined mainly to speak about the chasing of deceased No. 2. The accused denied the offence. The trial court was not prepared to rely on the evidence of P.Ws. 3 and 8 but relying on the evidence of P.Ws. 1,2,4,5 and 7 convicted only A-1 and A-2. The trial court acquitted other accused on the ground that the allegation against them was omnibus and vague and that the prosecution has not established beyond all reasonable doubt that they were also members of the unlawful assembly. The trial Judge also pointed out that in Ex.P.l, only A-1's name was mentioned and the other names were not mentioned. The learned trial Judge took into consideration the specified overt acts attributed to A-1, A-2 and A-10 by the eye-witnesses. A-10 was acquitted on the ground that there were some variations and discrepancies in the evidence of the eye-witnesses regarding the part played by him. The trial court, however, convicted A-1 and A-2 since specific overt acts were attributed to both of them. Regarding the attack on deceased No. 2, the trial court held that the prosecution has not established as to who were the assailants on the ground that no witnesses were examined to speak about the attack on deceased No. 2.

It may be mentioned that the acquittal of A-3 to A-15 has become final since the Suite appeal was dismissed by the High Court and the State has not preferred any appeal here. Therefore we are concerned only with the conviction of A-1 and A-2 u/s 302 read with Section 149 I.P.C.

The trial court as well as the High Court relied on the evidence of P.Ws, 1,2,4,5 and 7 and held that their evidence established that A-1 armed with a knife, inflicted the injury on the neck of deceased No. 1 and A-2 dealt a blow with the battle axe on his mouth. The medical evidence also corroborates the same. The trial Court convicted both of them u/s 302 simpliciter. Before the High Court, it was argued that the injuries inflicted by A-1 and A-2 did not cause death as per the medical evidence and since all the accused were charged under Sections 302/149, A-1 and A-2 alone can not be convicted u/s 302 simpliciter unless the injuries inflicted by them individually were sufficient to cause death. The High Court did not consider the said submission in detail but, however, held that there was an unlawful assembly consisting of 15 persons and the common object of the unlawful assembly was only to kill the two deceased and that the other accused were acquitted only after being given the benefit of doubt and that membership of A-1 and A-2 of the said assembly alone has been established and therefore they could be convicted under Sections 302/149 I.P.C.

Shri Santosh Hegde, learned Counsel appearing for the appellants submits that the appellants were acquitted of the charges under Sections 147 and 302/149 I.P.C. even by the trial court and the acquittal under those charges has not been challenged before the High Court by the State and consequently A-1 and A-2 again could not have been convicted under Sections 302/149 by the High Court. The learned Counsel also submitted that the two appellants can not also be convicted u/s 302 simpliciter in view of the medical evidence that the fatal injury which resulted in the death was attributed to A-10 who was acquitted. Therefore the appellants can not even be convicted under Sections 302/34 and they can be convicted at the most under Sections 324 or 326 I.P.C. His further submission is that since A-2's name was not mentioned in Ex.P.1he is also entitled to the benefit of doubt like other acquitted accused.

The evidence of the eye-witnesses P.Ws. 1,2,3,5 and 7 establishes beyond all reasonable doubt that A-2 inflicted the injury with a battle-axe. Even though his name is not Specifically mentioned in the F.I.R., but that by itself is not a ground to disbelieve his presence. P.W.I, who gave the F.I.R., was an illiterate woman. In her deposition she stated that when D-2 was being chased, she left the place and went to the Police Station where she found only one Head Constable and that she informed him about the occurrence and also about the assailants but the Head Constable who recorded Ex.P.1did not even read it out. A perusal of the format of the F.I.R. would show that the Head Constable has not fully recorded the statement of P.W.I. As a matter of fact, P.W.15 the said Head Constable was cross-examined by the prosecution and it was suggested to him that P.W.I stated the names of all the accused but he has written the name of A-1 only and that as per the orders of his superior officers, he was punished by stopping increments for two years. It is rather surprising that he has mentioned only one name i.e. A-1's name and no other names though several personas participated in the occurrence. In this state of affairs, the F.I.R. can not be given much importance.

According to the evidence of the prosecution witnesses, A-1, who was armed with a knife, dealt a blow on the neck of D-1 and A-2 dealt a blow with an axe on the mouth of D-l and when he was falling down, A-10 pierced his spear on his head and other accused thereafter attacked him. The Doctor, P.W.11, found 12 injuries on the dead body of D-1. Injury No. 1 was an incised wound which was on the scapular region. Injury No. 3 was an incised wound on the right angle of the mouth and this injury was attributed to A-2. Injury No. 5 was an incised wound on the left side of the nap of the neck and injury No. 6 was a lacerated wound on the head which resulted in the depressed communited fracture of the left parietal bone and causing injury to the brain. The rest were all contusions. The Doctor opined that injury No. 3 attributed to A-2 could be caused by a battle-axe and injury No. 5 attributed to A-1 could be caused by a knife. The Doctor, however, opined that the death was due to cumulative effect of all the injuries including injury No. 6 (attributed to A-10) which was sufficient in the ordinary course of nature to cause death. The learned Sessions Judge acquitted A-10 giving him the benefit of doubt since there were variations in the statements of the eye-witnesses regarding the part played by him. So far as the parts played by A-1 and A-2 are concerned, the evidence is consistent and the same is supported by the medical evidence. The learned Sessions Judge, as already mentioned, convicted them u/s 302 I.P.C. simpliciter. No doubt, it was contended before the High Court that their conviction u/s 302 I.P.C. simpliciter was illegal as the fatal injury No. 6 was not caused by either of them. The High Court has not gone into the medical evidence in detail and has also not considered the question whether the conviction of the appellants u/s 302 I.P.C. simpliciter can be maintained or whether it can be altered to under Sections 302/34 I.P.C. The High Court, on the other hand, after having examined the evidence reached the conclusion that there was an unlawful assembly of more than five persons of which the two appellants were members and in that view, they could be convicted under Sections 302/149 I.P.C. and accordingly convicted the appellants. Learned counsel for the appellants again contended before us that since A-1 and A-2 did not cause the fatal injury, they can not be convicted u/s 302 I.P.C. simpliciter nor they can be convicted u/s 302/149 I.P.C. since all of them were acquitted u/s 147 and 148 thereby disbelieving the prosecution story regarding the formation of an unlawful assembly.

The Doctor, who conducted the post-mortem, no doubt in the cross-examination further admitted that apart from injury No. 6, the other injuries either individually or collectively do not cause death but in the further re-examination he again admitted that if injury no 6 is inflicted followed by other injuries, then the death might be instantaneous. Therefore, we see no reason why these two appellants should not be convicted under Sections 302/ 34 I.P.C. Taking the entire case as such, there can not be any doubt that there was a prior concert among these accused and armed with deadly weapons, they inflicted the injuries alongwith the other assailants. Though they have not caused the fatal injury as such, still they participated in the attack sharing the common intention of causing the death alongwith the assailant who caused that fatal injury and to that extent the medical evidence also supports the case. They were specifically charged u/s 302 I.P.C. simpliciter. Therefore there is no legal impediment to convict them under Sections 302/34 I.P.C. Accordingly we set aside the conviction of the appellants under Sections 302/149 I.P.C. and instead convict them under Sections 302/34 I.P.C. and confirm the sentence of imprisonment for life. The appeal is accordingly dismissed.