ORDER
Ramesh Madhav Bapat, J.
1. Accused No.1 to A26 in SC No.303 of 1993 on the file of IV Addl. Sessions Judge at Guntur are the appellants herein. The accused were tried for five different charges. The first charge against accused Nos.1 to 26 was under Section 148 IPC and the learned Sessions Judge found them guilty of the said charge and the accused were sentenced to undergo rigorous imprisonment for one year. The second charge against accused 2, 3 and 6 was under Section 302 IPC and the learned Judge found accused 2 and 3 guilty of the said charge and therefore both A2 and 3 were convicted to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default, to suffer simple imprisonment for three months. The third
charge against accused Nos.1, 4, 5, 7 to 26 was under Section 302, read with Section 149 IPC and the learned Judge found accused 1, 4 to 26 guilty of the said charge and therefor convicted them to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default, to suffer simple imprisonment for three months. It is brought to our notice that even though no charge was framed against A6 of the offence under Section 302 read with Section 149 IPC but still the learned Judge proceeded to convict A6. The fourth charge against A8, 11 and 26 was under Section 324 IPC for causing hurt to PWs. l, 3 and 7 and the learned Judge found them guilty of the said charge and therefor convicted them to undergo rigorous imprisonment for one year. The fifth charge against Al to A7, 9, 10, 12 to 25 was under Section 324 read with Section 149 IPC and the learned Judge found them guilty of the said charge and therefore convicted them to undergo rigorous imprisonment for one year. The sentences were directed to run concurrently.
2. The prosecution case is that on
19-9-1992 at about 6.00 p.m. in front of the house of Veeramasu Yesu (deceased) the accused armed with axes, spears, knives and sticks caused injuries to one Veeramasu Yesu as a result of which he died in the Guntur General Hospital at 8.55 p.m. on
20-9-1992. All the accused and material witnesses are residents of Panidaram, Harijanawada. PW2 is the wife of the deceased. PW3 is the wife of PW6. All the accused are inter-related and belong to one family. The deceased was having 10 acres of land and has got eight children and two brothers. One of the brothers is working as a Police Constable at Macherla. It is alleged that about 20 days prior to the date of incident the pig of the accused entered into the field of the deceased and grazed the crop. Thereby the deceased chastised the accused. Since then the accused bore grudge against him. At about the same time the son of the deceased went to the
well to fetch the water. While he was drawing water, A3 came there saying that he has to pull the water first for which the son of the deceased refused. Then A3 slapped him, the same was reported to the deceased. The deceased went to the house of A3 and asked him about the incident. The accused said to have revolted saying that one single family of the deceased was dare enough to come to his house and question him. The deceased went to Tadikonda P.S. and lodged a report. However, the matter was compromised in the presence of PW16 the Head Constable.
3. It is further the case of the prosecution that on the date of incident i.e., on 19-9-1992 at about 6.30 p.m. the deceased was sitting on a cot under a pendal in front of his house, PW2 was inside the house and PW1 was standing in front of his house which is situated four yards away then all the accused alleged to have come towards the house of PW1 and pelted stones at his house. The deceased questioned them about their pelting stones. At that time, all the accused armed with axes, sticks and spears came there and A2 is alleged to have hacked on the head of the deceased with an axe and A3 and A7 are alleged to have speared on the stomach of the deceased with a spear. A6 is alleged to have stabbed with a knife on the stomach of the deceased. The other accused are said to have beat the deceased indiscriminately with sticks. Further according to the case of the prosecution PW2 came out of the house as the stones were being pelted at her house and saw the incident. According to PW3, accused No.8 is also said to have beat PW2 with a stick on right side of the body. When PWs.1, 3 and 7 obstructed, they were also beaten. PW1 and PW6 brought the injured persons to the Government General Hospital, Guntur. PW7 who also stated to have sustained an injury went to Government Hospital. PW12 the Civil Assistant Surgeon, Government
General Hospital, Guntur examined the deceased on 19-9-1992 at 11.35 p.m. and issued Ex.Pl 1 the wound certificate.
4. It is further the case of the prosecution that on the intervening night of 19/20 September, 1992, PW14 the Munsiff Magistrate received a requisition from Casualty Medical Officer, Government General Hospital, Guntur, for recording the dying declaration of the deceased. PW14 proceeded to the Hospital and recorded the dying declaration of the deceased. Ex.PI6 is the dying declaration of the deceased.
5. It is further case of the prosecution that on 20-9-1992 at 2.00 p.m., PW17 the Head Constable received intimation from the Hospital regarding the admission of the deceased and forwarded the same to Kothapet Police Station for taking necessary action, Ex.P13 is the Hospital intimation. On 20-9-1992 at 8.30 p.m. while PW20 Head Constable was in Kothapet P.S., P.C. 1259 brought the true copy of the dying declaration Ex.P12 and on the basis of which he registered a case in Cr.No. 48/92, under Sections 147, 148, 324, 307 read with 149 IPC of Tadikonda Police Station. Ex.P23 is the copy of the FIR. PW20 the Head Constable himself took up further investigation and proceeded to the Hospital at 9.30 p.m. and recorded the statements of PWs.1 to 6. He seized M.Os. 5 to 7 clothes from PW2. On the same day at 12.30 a.m., PW20 proceeded to the village and halted in the village as it was late in the night. On 21-9-1992 PW20 reached the scene of offence along with PW10 and another Ex.P24 is sketch of the scene of offence and Ex.P2 is observation report.
6. It is further the case of the prosecution that on 21-9-1992 at 10.00 p.m. PW17 Head Constable attached to the Government General Hospital, Guntur, received Ex.P14 the death intimation which
is forwarded at Kothapet (L & O) P.S. According to PW20, at 6.00 a.m. he went to Tadikonda Police Station and that P.C. 1663 of Kothapet Police Station came and handed over Ex.P13 which is the death intimation of the deceased. On the basis of Ex.P13 PW20 Head Constable altered the section of law to one under Section 302 IPC. Ex.P25 is the copy of the altered FIR. It is further the case of prosecution that on 20-9-1992 at 2.40 p.m., PW19 the Civil Assistant Surgeon, Government General Hospital, Guntur, examined PW1 and issued Ex.P20 the wound certificate. On the same day he examined PW3 and issued Ex.P21 wound certificate. PW7 was also examined on the same day at 2.47 p.m. and Ex.P22 is the wound certificate.
7. It is further the case of the prosecution that on 22-9-1992 at about 1.00 a.m., PW21 the S.I. of Police received a copy of FIR. He proceeded to the Hospital and conducted inquest over the dead body in the presence of PW11 and another. Ex.P10 is the inquest report. He then sent the body for post-mortem examination. PW18 the Assistant Professor of Forensic Medicine, Guntur Medical College conducted autopsy over the dead body and issued Ex.P 17 the post-mortem certificate.
8. It is further the case of the prosecution that further investigation was done by PW22 the Inspector of Police. PW22 verified the investigation done by PW20 and PW21. On 2-10-1992 he arrested A2, A3 and A26 at Ponnekallu casue way and recorded their confessional statement, pursuant to which an axe MO1 was recovered from the house of A2, spear M.O.2 without stick was recovered from A3 and an iron bar MO3 was recovered from the house of A26. A18 who was under surveillance was arrested after he was discharged from Government Hospital at 9.00 p.m. On 6-10-1992 A6, A7, AS to 11 were arrested in the presence of PW10 and
pursuant to their confession a knife MO10 was recovered from the house of A6, spear MO2 was recovered from A7. PW22 also arrested A1, A4, AS, A9, A10, A12 to A17 and A19 to A25 at 8.00 p.m. and all were remanded to custody. It is further case of the prosecution that the weapons seized were sent to Forensic Science Laboratory through Court for chemical analysis. Ex.P18 and P19 are the Forensic Science Laboratory reports. After completing the investigation, PW22 filed the charge-sheet.
9. In support of the prosecution case, the prosecution examined 22 witnesses and marked Ex.P1 to Ex.P29. PWs.1 to 7 were examined as eye-witnesses to the occurrence. The prosecution relied upon the dying declaration Ex.P16 recorded by the Magistrate PW14. The defence of the accused is one of total denial and it is also case of the accused that they have been falsily implicated in this case due to previous enmity between the two groups.
10. Now we have to see whether the prosecution has been able to establish that the deceased died a homicidal death and whether the guilt of the accused is proved beyond reasonable doubt. As stated earlier, PW21 the S.I. of Police on receipt of the information proceeded to the Hospital and conducted inquest over the dead body of the deceased in the presence of PW11. Ex.P10 is the inquest report. If further appears from the record that PW18 Assistant Professor of Forensic Medicine, Guntur, who conducted autopsy on the dead body of the deceased stated that on 22-9-1992 he received a requisition from the S.I. of Police, Tadikonda Police Station with a requisition to conduct post-mortem examination over the dead body of the Veeramasu Yesu (deceased). Accordingly at about 1.30 p.m. on the same day he commenced the post-mortem examination and noticed the following
external injuries on the person of the
deceased:
1. Cut laceration of 7 x 1 c.m., bone deep over the right parietal area of the scalp, obliquely placed;
2. Cut laceration of 6.5 x 1 c.m. into bone deep over the left parietal area of the scalp, obliquely placed;
3. Cut laceration of 5 x 0.5 c.ms. into scalp deep over middle of frontal are of the scalp, vertically placed;
4. Cut laceration of 4 x 0.5 c.ms. into scalp deep 3 c.ms. to the left of injury No.3 vertically placed;
5. Night paramedins sutured would of 16 cms. length over the front of the
abdomen;
6. Sutured wound of 6 c.ms. length over the upper part of the right side of the abdomen on the front, obliquely placed, just below the costal margin;
7. Sutured wound of 4 c.ms. length over the front of lower part of left side of chest, obliquely placed, not entered
the cavity;
8. Sutured wound of 1.5 c.ms. length with tailing towards the left, 5 cms below and 2 c.ms. to the left of injury No.7, horizontally placed not entered the cavity;
9. Incised injury 3 x 1 c.ms., skin deep over the left 1st metacarpal bone;
10. Sutured wound of 2 c.ms. length with rubber drain over the right flanks of abdomen; and
11. Sutured wound of 1.5 c.ms. length with rubber drain over the left flanks of abdomen,
and on internal examination he noticed the following internal injuries on the person of the deceased:
1. Depressed fracture of 6 x 0.5 c.ms. over the right parietal bones. This is in continuation with external injury No. 1;
2. Depressed fracture of 5 x 0.5 c.ms. over the left parietal bone. This is in continuation with external injury No.2;
3. Fissured fracture of 12 c.ms., length extending from the internal injury No.1 to the base of the skull on the right side over the fight occipital bone, through the right posterior cranial fossa;
4. Stab injury of 3 x 0.5 c.ms. x 4 c.ms. overthe right lobe of liver. This is in continuation with external injury No.6;
5. Diffuse and dural haemorrage over the brain present; and
6. Colon was found sutured.
From the evidence of PW18 it is clear that the deceased died a homicidal death.
11. Learned Counsel for the appellants submitted at the bar that it is the case of the prosecution that the deceased who was injured was shifted to the Government Hospital in a bullock cart and some persons who were closely associated with him took the injured person (deceased) to Government hospital and the journey was about four hours and with this factual position on record it was contended by the learned Counsel for the appellants that there was sufficient time for the prosecution witnesses to tutor the injured person (deceased) to involve as many persons as possible who belong to the rival group. It further appears from the record that Ex.P12 is the dying declaration which is treated as FIR and Ex.P16 is the dying declaration recorded by the learned Magistrate. The learned Magistrate after putting certain preliminary questions to the injured (deceased) and on being satisfied with the answers given by the
injured person (deceased) proceeded to record the dying declaration. Ex.P16 further shows that on the day of the incident at about 6.00 p.m. Veeramasu Yesu (deceased) was sitting in front of his house while so about 40 persons of his village who are having surname of Madugula came to his house and hurled earth and mud planks on his house and when he questioned them as to why they are doing so all the persons gathered there beat him with knives and sticks. Further according to the dying declaration given by the deceased, A2 hacked him with an axe on his head and A3 pocked him in his stomach with a spear and the remaining persons beat him indiscriminately. He further stated that his brother-in-law PW1 and Venkateswarlu PW7 had witnessed the scene. While commenting upon the evidence on the point of dying declaration, learned Counsel submitted that initially accused Nos.1 to 20 were charged with the offence of murder punishable under Section 302 IPC read with Section 149 IPC, with this position on record it was submitted by learned Counsel that the involvement of Accused Nos.21 to 26 is an after thought and therefore it must be held that the prosecution has not made out a case against them and has not come with a true version.
12. Learned Counsel Sri C. Padmanabha Reddy further brought to our notice that as per the prosecution story PW1 to PW7 are eye witnesses to the incident and each of them while giving their evidence have made some improvements here and there and therefore it was contended by learned Counsel that their evidence is not much reliable.
13. PW1 deposed that he is the resident of Panidaran and on the day of the incident he was in his house which is at about 4 to 5 yards from the house of the deceased. According to his version the accused came to the house of the deceased and pelted
stones at his house and the deceased questioned them about their pelting the stones. At that time all the accused were armed with axes, sticks and spears and then A2 hacked the deceased on his head with an axe, A3 speared on the stomach of the deceased with a spear, A7 also speared the deceased on the stomach and A6 stabbed with a knife on the stomach of the deceased and the rest of the accused beat the deceased with sticks indiscriminately. While commenting on this evidence, learned Counsel for the appellants submitted that as far as PWI is concerned he was attributed overt acts to A2, 3, 7 and 6 and there is omnibus allegation against all other accused that they beat the deceased indiscriminately.
14. Learned Counsel also took us to the evidence of PW2 Veeramasu Kumari who is the wife of the deceased. According to her version she was in the house and when some stones were pelted on her house she came out of her house and witnessed all the accused present armed with deadly weapons and that A2 axed on the head of the deceased, A3 speared on the stomach of the deceased, A7 speared with a spear on his stomach, A6 stabbed with a knife on the stomach of the deceased. On this evidence of PW2, learned Counsel for the appellants submitted that even PW2 attributed overt acts to A2, 3, 6 and 7 in stabbing the deceased but all other accused were involved in the offence of murder by making an omnibus allegation against them of beating the deceased with sticks indiscriminately. The evidence of PW2 further shows that she, PW3 and PW7 were present at the scene of offence and they had also witnessed the incident.
15. PW3 also happens to be the eyewitness to the incident. According to the version of PW3, A2 axed on the head of the deceased, A3 speared on the stomach of the deceased, A 7 speared with a spear
on the stomach and A6 stabbed with knife on the stomach of the deceased and rest of the accused beat the deceased indiscriminately. PW3 further deposed that A8 beat her with a stick on the right side of the body and then all the accused ran away. PW7 also happens to be the eyewitness to the incident. According to the version of PW7, A2 axed on the head of the deceased, A3 speared with spear on his stomach, A7 speared on the stomach of the deceased A6 stabbed with a knife on the stomach of the deceased and all other accused beat the deceased with sticks indiscriminately and thereafter they ran away. He further deposed that the incident was witnessed by PWs.1, 3, 4, 5 and himself. In the evidence of PW4 she stated that PW1 and PW7 took the injured person (deceased) to the Government General Hospital for treatment and when she went to the Hospital on the next day morning, at that time the deceased was in unconscious state but was still living. PW5 in his evidence deposed that A2 axed on the head of the deceased, A3 speared on the stomach of the deceased, A7 speared with a spear on the stomach deceased and A6 stabbed with a knife on the stomach of the deceased and the rest of the accused beat the deceased with sticks. He further deposed that PW1 and PW7 took the deceased (alive) to the Government hospital at Guntur for treatment The evidence of PWs.6 and 7 is on par with the evidence of other four eye witnesses. Suffice it to state that the evidence of PWs.6 and 7 corroborates the evidence of eyewitnesses who specifically attributed overt acts to A2, 3, 6 and 7.
16. Learned Counsel for the appellants submitted that even the version of all the eye-witnesses is accepted as it is, the involvement of A2, A3, A6 and A7 stands proved and as far as the allegations against all other accused is concerned it is to be held that the prosecution has failed to establish the guilt of all other accused
beyond reasonable doubt. Learned Counsel submitted that the evidence of all eyewitnesses is falsified by medical evidence. Learned Counsel took us to the evidence of PW12 who had examined the deceased immediately on his admission to the hospital and when the deceased was still living. The evidence of PW12 shows that he had noticed as many as six injuries on the person of the deceased. Learned Counsel further submits that if at all twenty six persons had beat the deceased indiscriminately the marks of injury must have been noticed which is totally absent in the present case and therefor the version of the eye-witnesses that all other accused beat the deceased indiscriminately cannot be accepted and it must be held that the prosecution witnesses did not come with a true version. In support of his contentions learned Counsel for the appellants relied on the following decisions: Sherey and others v. State of U.P., 1 (1992) CCR 489, wherein their Lordships held as under:
“4. We have carefully gone through the evidence. We have no doubt that all the eye-witnesses were present. Nothing significant has been elicited in their cross-examination. However, the eye-witnesses simply named these appellants and identified them. So the question is whether it is safe to convict all the appellants. In a case of this nature, the evidence of the witnesses has to be subjected to a close scrutiny in the light of their former statements. The earliest report namely the FIR has to be examined carefully. No doubt in their present deposition they have described the arms carried by the respective accused but we have to see the version given in the earliest report. In that report PW1 after mentioning about the earlier proceedings has given a fairly detailed account of the present occurrence. He has mentioned the names of the witnesses and also the names of the three deceased persons.
Then he proceeded to give a long list of names of the accused and it is generally stated that all of them were exhorting and surrounded the PWs. and the other Hindus and attached them. But to some extent specific overt acts are attributed to appellants Nos.1, 4, 5, 7, 8, 10, 17, 22 and 25. It is mentioned therein that these nine accused were armed with deadly weapons and were seen assaulting the deceased Ram Narain and others. Now in the present deposition he improved his version and stated that in addition to these nine accused, five more persons also attacked the deceased and others. In view of this variation we think that it is safe to convict only such of the appellants who are consistently mentioned as having participated in the attack from the stage of earliest report. With regards the rest PW1 mentioned in an omnibus way that they were armed with lathis. He did not attribute any overt act to any one of them. Further, the medical evidence rules out any lathies having been used. The Doctor found only incised injuries on the dead bodies and on the injured PWs. Therefore, it is difficult to accept the prosecution case that the other appellants were members of the unlawful assembly with the object of committing the offence with which they are charged. We feel it is highly unsafe to apply Section 149 IPC and make everyone of them constructively liable. But so far as the above nine accused are concerned the prosecution version is consistent namely, that they were armed with lethal weapons like swords and axes and attached the deceased and others. This strong circumstance against them establishes their presence as well as their membership of the unlawful assembly. The learned Counsel appearing for the State vehemently contended that the fact that the Muslims as a body came to the scene of occurrence would show that
they were members of an unlawful assembly with the common object of committing various offences including that of murder. Therefore all of them should be made constructively liable. But when there is a general allegation against a large number of persons the Court naturally hasitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends assurance. From that point of view it is safe only to convict the above mentioned nine accused whose presence is not only consistently mentioned from the stage of FIR but also to whom overt acts are attributed. The fact that they were armed with weapons like swords and axes and attacked the victims shows that they were members of an unlawful assembly with the common object of committing murder and other offences with which they were charged. In the result, we confirm all the convictions and sentences awarded to appellant Nos.1 Sherey, No.4 Tafazzul, No.5 Aziz, No.7 Rasheed, No.8 Rahman, No. 10 Nasrullah, No. 17 Lal Mohammed alias Lain, No.22 Shaoliah and No.25 Halim. So far as the other appellants are concerned, for the above stated reasons we set aside the convictions and sentences passed against them and direct that they shall be set at liberty forthwith if not required in any other case.”
In Mallappa and others v. State of Karnataka, 1995 SCC (Cri) 414, their Lordships at Para (6) of the judgment held as under:
“6. The medical evidence shows that there are only three lacerated wounds on D1 and six lacerated wounds on D2 totalling 9 and the abrasions were due to fall. The question is whether A3, A5, A9, A10, At 1. A13 and A14, seven in number who are said to have attacked two deceased with sticks indiscriminately
caused only nine lacerated injures and not even a single contusion. No overt act has been attributed to A8 throughout. As pointed out in cases of this nature, the overt act test need not only be a decisive test but is one of the legitimate tests to be applied while scrutinising the evidence. If such overt acts are mentioned consistently right from the stage of FIR and if the medical evidence supports it, then such of those accused to whom such overt acts have been attributed could safely be held to be members of the unlawful assembly with the common object of committing those offences.”
17. As stated earlier, when dying declaration was recorded by the learned Magistrate the deceased did not attribute any specific overt acts to A6 and A7 but he has attributed overt acts to A2 and A3 only. But it does not mean that A6 and A7 did not participate in hitting the deceased with their respective weapons. It might be possible that the deceased might not have been able to observe as to with what weapon A6 and A7 had beat him as there was a mob of 25 to 30 persons. But the evidence of eye-witnesses categorically shows that A2, 3, 6 & 7 hit the deceased with their respective weapons. Therefor, we have no hesitation in holding that A2, 3, 6 and 7 are responsible for causing the death of the deceased and the allegations made against rest of the accused cannot be sustained in law as it is an omnibus allegation and the evidence of eye-witnesses as regards the participation of other accused is concerned is negatived by the medical evidence.
18. Therefore the order of conviction and sentence recorded against accused Nos.2, 3, 6 and 7 is modified as under:
Accused Nos.2, 3, 6 and 7 are held to have committed an offence punishable
under Section 302, read with Section 149 Indian Penal Code and they are sentenced to undergo imprisonment for life. The order of conviction and sentence recorded against other accused is hereby set aside and they are directed to be released forthwith, if not required in any other case.