Andhra Pradesh High Court - Amravati
Chengala Venkata Rao, Visakhapatnam., vs The State Of Ap., Rep Pp., on 27 June, 2024
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
CRIMINAL APPEAL No.544/2017
Between:
CHENGALA VENKATA RAO ...APELLANT
AND
THE STATE OF AP rep by the Public Prosecutor ...RESPODENTS
and others.
CRIMINAL APPEAL NO: 609/2017
Between:
PERLA YELLAIAH and others ...APELLANTS
AND
THE STATE OF AP Rep by its Public Prosecutor ...RESPODENT
CRIMINAL APPEAL NO: 660/2017
Between:
KOVIRI GANGADHAR ...APELLANT
AND
THE STATE OF AP rep by the Public Prosecutor ...RESPODENT
CRIMINAL APPEAL NO: 661/2017
Between:
CHIKKALA DHATHATHREYA ...APELLANT(S)
and others
AND
THE STATE OF AP rep by the Public Prosecutor ...RESPODENT
CRIMINAL APPEAL NO: 662/2017
Between:
K VENKATA SATYANRAYANA ...APELLANTS
and others
AND
THE STATE OF AP rep by the Public Prosecutor ...RESPODENT
DATE OF COMMON JUDGMENT PRONOUNCED: 27.06.2024
2
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
HON'BLE SMT JUSTICE KIRANMAYEE MANDAVA
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals?
3. Whether Their Ladyship/Lordship wish to Yes/No
see the fair copy of the Judgment?
_______________________
U. DURGA PRASAD RAO, J
_______________________
KIRANMAYEE MANDAVA, J
3
*HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
AND
HON'BLE SMT JUSTICE KIRANMAYEE MANDAVA
+ CRIMINAL APPEAL No.544/2017
%27.06.2024
# CHENGALA VENKATA RAO,
..Appellant
Vs.
$ THE STATE OF AP rep by the Public Prosecutor and others.
.. Respondents
! Counsel for appellant: Sri T.S.Anirudh Reddy
Counsel for respondents: The Public Prosecutor
+ CRIMINAL APPEAL No.609/2017
# PERLA YELLAIAH VISAKHAPATNAM and others
..Appellants
Vs.
$ THE STATE OF AP Rep by its Public Prosecutor
.. Respondent
! Counsel for appellant: 1) Sri P.Narahari Babu
2) Sri O.Kailashnath Reddy
Counsel for respondents: The Public Prosecutor
+ CRIMINAL APPEAL No.660/2017
# KOVIRI GANGADHAR
..Appellant
Vs.
$ THE STATE OF AP rep by the Public Prosecutor
.. Respondent
! Counsel for appellant: Sri P.Narahari Babu
Counsel for respondents: The Public Prosecutor
4
+ CRIMINAL APPEAL No.661/2017
# CHIKKALA DHATHATHREYA
..Appellants
Vs.
$ THE STATE OF AP rep by the Public Prosecutor
.. Respondent
! Counsel for appellant: Sri T.Nagarjuna Reddy
Counsel for respondents: The Public Prosecutor
+ CRIMINAL APPEAL No.662/2017
# K VENKATA SATYANRAYANA and others.
..Appellants
Vs.
$ THE STATE OF AP rep by the Public Prosecutor
.. Respondent
! Counsel for appellant: Sri P.Vishnuvardhan Reddy
Counsel for respondents: The Public Prosecutor
<GIST:
>HEAD NOTE:
? CASES REFERRED:
1. AIR 1956 SC 181
2. (2023) 10 SCC 134
3. (2016) 6 SCC 105
4. AIR 1965 SC 202
5. AIR 1989 SC 754
6. AIR 1981 SC 1219
7. AIR 1976 SC 2566
8. AIR 1971 SC 2381
9. (2002) 4 SCC 85
5
APHC010211702021
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3456]
(Special Original Jurisdiction)
THURSDAY, TWENTY SEVENTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA
CRIMINAL APPEAL No.544/2017
Between:
Chengala Venkata Rao, Visakhapatnam & others. ...APELLANTS
AND
The State Of AP Rep PP ...RESPODENTS
Counsel for the Apellant:
1. T S ANIRUDH REDDY
Counsel for the Respodent:
1. PUBLIC PROSECUTOR (AP)
CRIMINAL APPEAL NO: 609/2017
Between:
Perla Yellaiah, Visakhapatnam and Others ...APELLANT(S)
AND
The State Of Ap Rep Pp ...RESPODENT
Counsel for the Apellant(S):
1. P NARAHARI BABU
2. O KAILASHNATH REDDY
Counsel for the Respondent:
1. PUBLIC PROSECUTOR (AP)
CRIMINAL APPEAL NO: 660/2017
Between:
Koviri Gangadhar, Visakhapatnam Dt., ...APELLANT
6
AND
State Of AP Rep PP ...RESPODENT
Counsel for the Apellant:
1. P NARAHARI BABU
Counsel for the Respodent:
1. PUBLIC PROSECUTOR (AP)
CRIMINAL APPEAL NO: 661/2017
Between:
Chikkala Dhathathreya Eg Dt Anr and Others ...APELLANT(S)
AND
State Of Andhra Pradesh Rep PP ...RESPODENT
Counsel for the Apellant(S):
1. T NAGARJUNA REDDY
Counsel for the Respodent:
1. PUBLIC PROSECUTOR (AP)
CRIMINAL APPEAL NO: 662/2017
Between:
K.Venkata Satyanrayana, Visakapatnam & 2 Otrs., ...APELLANT(S)
and Others
AND
The State Of Andhra Pradesh Rep Pp ...RESPODENT
Counsel for the Apellant(S):
1. P VISHNUVARDHANA REDDY
Counsel for the Respondent:
1. PUBLIC PROSECUTOR (AP)
The Court made the following:
COMMON JUDGMENT:
(Per Hon'ble Sri Justice U. Durga Prasad Rao)
Aggrieved by the judgment dated 24.05.2017 in
S.C.No.41/2010 delivered by the learned X Additional District and
Sessions Judge, Visakhapatnam at Anakapalli convicting and
sentencing Accused Nos.1 to 3, 5 to 9, 11 to 20, 22 to 24 for
different offences, the accused have filed the Criminal Appeals as
narrated in the following table:
TABLE
Accu Name of Charges Framed Convicted and punished for the Criminal Appeal
sed Accused / by the Trial Court offences filed by accused
No. Resident of
(3) (5)
(1) (2) (4)
A1 Chengala i. U/s 147 & 148, Rigorous imprisonment for a
Venkata Rao, period of one year and to pay a
Gopalapatnam, fine of Rs.1000/-U/s 147
Visakhapatnam
Rigorous imprisonment for a
period of one year and to pay a
fine of Rs.1000/-U/s 148
ii. U/s 302 r/w 149 IPC
Imprisonment for life for the
offence U/s 302 r/w 149 IPC and
iiiU/s 302 r/w 109 IPC
to pay a fine of Rs.5000/-
Imprisonment for life for the
offence U/s 302 r/w 109 IPC and
iv. U/s 506 IPC
to pay a fine of Rs.5000/-
Rigorous imprisonment for a
period of one year and to pay a
fine of Rs.5000/-U/s 506 IPC
A2 Perla Yellayya, i.U/s 147 & 148, Rigorous imprisonment for a
Bangarammape period of one year and to pay a
ta fine of Rs.1000/-U/s 147
Rigorous imprisonment for a
period of one year and to pay a
fine of Rs.1000/-U/s 148
ii. U/s 324 IPC Crl.A.No.609/2017
Rigorous imprisonment for one
year U/s 324 and to pay a fine of
iii.U/s 323 IPC
Rs.1000/-.
iii. 302IPC
xxxxxxxxxxxxxx
iv.149 Imprisonment for life for the
offence U/s 302 r/w 149 IPC and
to pay a fine of Rs.5000/-
A3 Perla i.U/s 147 & 148, Rigorous imprisonment for a
Annavaram @ period of one year and to pay a
Satyanarayana, fine of Rs.1000/-U/s 147
Bangarammape Rigorous imprisonment for a
ta
period of one year and to pay a
fine of Rs.1000/-U/s 148
ii.U/s 324 IPC
Rigorous imprisonment for one
year U/s 334 and to pay a fine of
iii.U/s 323 IPC
Rs.1000/-. Crl.A.No.609/2017
iii. 302IPC
xxxxxxxxxxxxxx
iv.149 Imprisonment for life for the
offence U/s 302 r/w 149 IPC and
to pay a fine of Rs.5000/-
A4 Koviri DIED PENDING TRIAL
Appalaraju
(Died)
A5 Koviri i.U/s 147 & 148, Rigorous imprisonment for a
Kondababu period of one year and to pay a
Bangarammape fine of Rs.1000/-U/s 147
ta
Rigorous imprisonment for a
period of one year and to pay a
iii.U/s 323 IPC
fine of Rs.1000/-U/s 148
ii. 302IPC xxxxxxxxxxxxxx Crl.A.No.609/2017
Imprisonment for life for the
v.149 offence U/s 302 r/w 149 IPC and
to pay a fine of Rs.5000/-
A6 Koviri i.U/s 147 & 148, Rigorous imprisonment for a
Bhairavaswami
Bangarammape period of one year and to pay a
ta fine of Rs.1000/-U/s 147
Rigorous imprisonment for a
period of one year and to pay a
fine of Rs.1000/-U/s 148
ii.U/s149
Imprisonment for life for the
offence U/s 302 r/w 149 IPC and
to pay a fine of Rs.5000/-
A7 Koviri i.U/s 147 & 148 Rigorous imprisonment for a
Gangadhar period of one year and to pay a
Bangarammape fine of Rs.1000/-U/s 147
ta
Rigorous imprisonment for a
period of one year and to pay a
fine of Rs.1000/-U/s 148 Crl.A.No.660/2017
Rigorous imprisonment for life
ii.U/s 149 and to pay a fine of Rs.5,000/-
U/s 302 r/w 149 IPC
A8 Muthi Nagaraju, i.U/s147 & 148 Rigorous imprisonment for a
Bangarammape period of one year and to pay a
ta fine of Rs.1000/-U/s 147
Rigorous imprisonment for a
period of one year and to pay a
fine of Rs.1000/-U/s 148
ii.U/s 324 IPC Rigorous imprisonment for a
period of one year and to pay a Crl.A.No.609/2017
fine of Rs.1000/-U/s 324 IPC
xxxxxxxxxxxxxx----------------
iii.U/s 323 IPC
Rigorous imprisonment for life
iii.U/s 302 IPC and to pay a fine of Rs.5000/-U/s
302 r/w 149 IPC
iv.U/s 149 IPC
A9 Koviri i.U/s147 & 148 Rigorous imprisonment for a
Marinayya, period of one year and to pay a
Bangarammape fine of Rs.1000/-U/s 147 Crl.A.No.609/2017
ta Rigorous imprisonment for a
period of one year and to pay a
fine of Rs.1000/-U/s 148
ii.U/s______ Rigorous imprisonment for a
period of one year and to pay a
fine of Rs.1000/-U/s 324 IPC
ii.U/s 149 Rigorous imprisonment for life
and to pay a fine of Rs.5000/-U/s
302 r/w 149 IPC
A10 Koviri Devudu i.U/s147 & 148 DIED PENDING TRIAL
(Died)
A11 Koviri Devudu i.U/s147 & 148 Rigorous imprisonment for a
Bangarammape period of one year and to pay a
ta fine of Rs.1000/-U/s 147
Rigorous imprisonment for a
period of one year and to pay a
fine of Rs.1000/-U/s 148
Rigorous imprisonment for life
ii. U/s 149 IPC and to pay a fine of Rs.5000/-U/s
302 r/w 149 IPC
A12 Koviri Nagaraju i.U/s147 & 148 Rigorous imprisonment for a
@ Nookaraju period of one year and to pay a
Bangarammape fine of Rs.1000/-U/s 147
ta Rigorous imprisonment for a
period of one year and to pay a
fine of Rs.1000/-U/s 148
Rigorous imprisonment for a Crl.A.No.609/2017
ii.------- period of one year and to pay a
fine of Rs.1000/-U/s 324 IPC
ii. U/s 149 IPC Rigorous imprisonment for life
and to pay a fine of Rs.5000/-U/s
302 r/w 149 IPC
A13 Muthi i.U/s147 & 148 Rigorous imprisonment for a
Papamma @ period of one year and to pay a
Papai fine of Rs.1000/-U/s 147 Crl.A.No.609/2017
Bangarammape
Rigorous imprisonment for a
ta
period of one year and to pay a
fine of Rs.1000/-U/s 148
Rigorous imprisonment for life
ii. U/s 149 IPC
and to pay a fine of Rs.5000/-U/s
302 r/w 149 IPC
A14 Koviri i.U/s147 & 148 Rigorous imprisonment for a
Appayamma period of one year and to pay a
Bangarammape fine of Rs.1000/-U/s 147
ta
Rigorous imprisonment for a
period of one year and to pay a
fine of Rs.1000/-U/s 148 Crl.A.No.609/2017
ii. U/s 149 IPC Rigorous imprisonment for life
and to pay a fine of Rs.5000/-U/s
302 r/w 149 IPC
A15 Gosala i.U/s147 & 148 Rigorous imprisonment for a Crl.A.No.609/2017
Seethamma, period of one year and to pay a
Bangarammape fine of Rs.1000/-U/s 147
ta
Rigorous imprisonment for a
period of one year and to pay a
fine of Rs.1000/-U/s 148
Rigorous imprisonment for life
ii. U/s 149 IPC and to pay a fine of Rs.5000/-U/s
302 r/w 149 IPC
A16 Ganta i.U/s147 & 148 Rigorous imprisonment for a Crl.A.No.609/2017
Appalakonda, period of one year and to pay a
Bangarammape fine of Rs.1000/-U/s 147
ta
Rigorous imprisonment for a
period of one year and to pay a
fine of Rs.1000/-U/s 148
ii. U/s 149 IPC Rigorous imprisonment for life
and to pay a fine of Rs.5000/-U/s
302 r/w 149 IPC
A17 Siripini i.U/s147 & 148 Rigorous imprisonment for a Crl.A.No.609/2017
Suramma @ period of one year and to pay a
Surimani, fine of Rs.1000/-U/s 147
Bangarammape
Rigorous imprisonment for a
ta
period of one year and to pay a
fine of Rs.1000/-U/s 148
Rigorous imprisonment for life
and to pay a fine of Rs.5000/-U/s
ii. U/s 149 IPC
302 r/w 149 IPC
A18 Chikkala i.U/s147 & 148 Rigorous imprisonment for a
Muralidhara period of one year and to pay a
Rao @ Murali, fine of Rs.1000/-U/s 147
Pentakota
Rigorous imprisonment for a
period of one year and to pay a NO CRIMINAL
fine of Rs.1000/-U/s 148 APPEAL FILED
BY THE
ii. U/s 149 IPC Rigorous imprisonment for life ACCUSED
and to pay a fine of Rs.5000/-U/s
302 r/w 149 IPC
A19 Chikkala i.U/s147 & 148 Rigorous imprisonment for a
Dhathathreya period of one year and to pay a
@ Datha, fine of Rs.1000/-U/s 147
Kothapeta Rigorous imprisonment for a
period of one year and to pay a Crl.A.No.661/2017
fine of Rs.1000/-U/s 148
Rigorous imprisonment for life
ii. U/s 149 IPC and to pay a fine of Rs.5000/-U/s
302 r/w 149 IPC
A20 Koppisetti i.U/s147 & 148 Rigorous imprisonment for a
Venkatesh, period of one year and to pay a
Nakkapalli fine of Rs.1000/-U/s 147
Rigorous imprisonment for a
period of one year and to pay a Crl.A.No.661/2017
fine of Rs.1000/-U/s 148
Rigorous imprisonment for life
ii. U/s 149 IPC and to pay a fine of Rs.5000/-U/s
302 r/w 149 IPC
A21 Adduri DIED PENDING TRIAL
Baburao (Died)
A22 Karri Venkata i.U/s147 & 148 Rigorous imprisonment for a Crl.A.No.662/2017
Satyanarayana period of one year and to pay a
, Nakkapalli fine of Rs.1000/-U/s 147
Rigorous imprisonment for a
period of one year and to pay a
fine of Rs.1000/-U/s 148
Rigorous imprisonment for life
ii. U/s 149 IPC
and to pay a fine of Rs.5000/-U/s
302 r/w 149 IPC
A23 Muddha i.U/s147 & 148 Rigorous imprisonment for a Crl.A.No.662/2017
Venkateswara period of one year and to pay a DIED PENDING
Rao, fine of Rs.1000/-U/s 147 APPEAL AND
Nakkapalli APPEAL ABATED
Rigorous imprisonment for a
period of one year and to pay a
fine of Rs.1000/-U/s 148
Rigorous imprisonment for life
ii. U/s 149 IPC and to pay a fine of Rs.5000/-U/s
302 r/w 149 IPC
A24 Bollam Surya i.U/s147 & 148 Rigorous imprisonment for a Crl.A.No.662/2017
Chalapathirao, period of one year and to pay a
Uddandapura fine of Rs.1000/-U/s 147
m
Rigorous imprisonment for a
period of one year and to pay a
fine of Rs.1000/-U/s 148
Rigorous imprisonment for life
ii. U/s 149 IPC and to pay a fine of Rs.5000/-U/s
302 r/w 149 IPC
II. PROSECUTION CASE:
The Accused No.1 is the sitting member of Legislative
Assembly of Payakaraopeta Constituency, and Accused 2 to 17 are
residents of Bangarammapeta Village, Nakkapalli Mandal, Accused
18 and 19 are residents of Pentakota Village, Payakaraopeta
Mandal, Accused 20 to 24 are residents of Nakkapalli Village. The
offence took place near Beach Minerals Company Limited situated
at Bangarammapeta village, Nakkapalli Mandal.
(b) While so, Beach Minerals Company (BMCL) Ltd., acquired
Ac.400.00 cents of Jirayat land in Bangarammapeta, Pentakota
Villages in various survey numbers to collect dry sand from the
lands for separating the minerals viz., garnet and illuminate raw-
material from the sand. The company started working about four
months prior to the incident which was occurred on 18.10.2007.
Some of the villagers of Bangarammapeta and neighbouring
villages demanded the management of the company to close the
company on the ground that it causes damage to the environment
and also that the company was collecting sand from their lands.
Some of the villagers who were working in the company supported
the company. Accused No.1 supported the group of people who
sought for closure of the company.
(c) While so, one Gosala Konda the deceased and his family
members are the supporters of the company. As some of the
supporters are staging Dharnas, Accused No.1 with a criminal
intention, conducted a meeting near BMCL on 18.10.2007 to hold
negotiations with all the villagers, but intentionally Accused No.1
including Accused No.2 to 24 shifted and mobilized the villagers of
Rajayyapeta, Addu Road, Nakkapalli, Payakaraopeta, Pentakota
and other neighbouring villages in vans though they are no way
concerned with the issue and secured deadly weapons like iron
rods, spears, sticks, knives, stones and chilly powder packets and
gathered at the meeting place, and at about 14-00 hours, A1
addressed the public for a while and asked the supporters of the
company to come on to the stage for their opinion, and when PW.2
Gosala Srikanth came on to the dias, A1 showed PW.2 and his
family members to the mob who were not supporting the
management of the Company and openly proclaimed that if those
family members were done away, then the company will be closed,
and on the instigation of Accused No.1, A2 to A.24 formed
themselves into an unlawful assembly, armed with deadly weapons
and attacked the family members of the deceased and their
supporters and labour working in the company, and that Accused
Nos.2, 3, 4 & 8 attacked the deceased, whereas Accused No.4 beat
the deceased on his head with iron rod and caused bleeding injuries
to him. Accused Nos.2, 3, 4, and 8 attacked PW.1 beat him with
hands and Accused No.4 beat him on his left fore leg with an iron
rod; Accused No.3 beat PW.3 with iron rod on his left hand,
Accused No.2 beat PW.4 on his right hand with iron rod; Accused
Nos.5 and 9 beat LW.5 on his shoulder and waist with stones and
hands; accused 13 and 14 beat PW.5 on his right leg with stones;
Accused Nos.12 and 15 beat L.W.7 on his right hand and with
stones and sticks; Accused Nos.11 and 17 beat P.W.6 on his chest
with stones and hands; A.13 and A16 beat P.W.7 with hands on his
person and caused injuries. After that, the accused badly damaged
the vehicles of LWs.10 to 19 by using iron rods, and stones. Due to
injury to the deceased on his head, the deceased became
unconscious and immediately he was shifted to Tuni Government
Hospital for treatment by PW.1 and PW.4 but on the way, the
deceased succumbed to the injuries and his body was kept in the
mortuary room, and then PW.1-de-facto complainant came to
Nakkapalli Police Station and presented a report to PW.22-Sub-
Inspector of Police, Nakkapalli PS.
(d) Basing on the report of PW.1, PW.22 registered a case in
Crime No.113/2007 U/s 147, 148, 302, 307, 447, 427, 452, 109,
324, 323, 5-6 r/w 149 IPC of Nakkapalli Police Station against
accused on 18.10.2007. Then PW.23-M.V. Ramanarao, Inspector of
Police, Yelamanchili Circle visited scene of offence on 19.10.2007
and prepared rough sketch, drafted observation report in the
presence of mediators, and got examined the dead body, got
photographed the scene and conducted inquest over the dead body
of the deceased on 19.10.2007, and examined witnesses and
recorded their statements, and that during the course of further
investigation, PW.24-P.R. Rajendra Kumar, Inspector of Police,
Yelamanchili Circle arrested the accused and sent them for judicial
custody. On completion of investigation, PW.24 filed charge sheet.
(e) On appearance of the accused, the trial Court framed
charges:
(1)U/s 147 and 148 IPC against A1 to A24
(2)U/s 324 IPC against A2, A3 and A8
(3)U/s 323IPC against A2, A3, A5 and A8
(4)U/s 302 IPC against A2, A3 and A8
(5)U/s 302 r/w 109 IPC against A1
(6)U/s 506 IPC against A1
(7)U/s 149 IPC against A1 to A3, A5 to A9, A11 to A20,
and A22 to A24
The accused denied charges and claimed for trial
(f) During trial PWs.1 to 24 were examined, Ex.P1 to P30
were marked and MOs.1 to 5 were exhibited on behalf of
prosecution.
(g) On perusal of judgment, the trial Court having relied upon
the eye witnesses and others i.e., PWs.1 to 4, PW.7 and PW.15
held that the accused have committed offence and accordingly
convicted and sentenced them as mentioned in the table supra.
Hence the criminal appeals.
III. Heard arguments of following learned counsel for appellants in
Criminal Appeal Nos.544, 609, 660, 661 and 662 of 2017 and Sri Y.
Nagi Reddy, learned State Public Prosecutor representing the State.
Sri T. Pradyumna Kumar Reddy, learned counsel for
appellant/accused No.1 in Crl.A.No.544/2017.
Sri O. Kailashnath Reddy, learned Senior Counsel
representing V.V.N. Narayana Rao and Sri P. Narahari Babu,
learned cousel for appellants/accused Nos.A2, A3, A5, A6, A8 A9,
A11 to A17 in Crl.A.No.609/2017.
Sri P. Narahari Babu, learned counsel for appellant/Accused
Sri P. Veera Reddy, learned Senior Counsel representing Sri
T. Nagarjuna Reddy and P. Vishnuvardhan Reddy, learned counsel
for appellants/accused Nos.19, 20, 22 to 24 in Crl.A.Nos.661 and
662 of 2017 respectively.
IV. It should be noted appellant No.2/accused No.23 died pending
Crl.A.No.662/2017 and hence appeal is abated as per the order
dated 13.07.2023.
ARGUMENTS:
V. While fulminating the judgment the prime and common
arguments of all the learned counsel for appellants are thus:
(1) From the facts projected in charge-sheet and emanated
from the evidence, the people in Bangarammapet and Pentakota
villages wherein the Beach Minerals Company (BMC) was collecting
dry sand for extracting Garnet mineral, divided into two groups as-
protagonists, who were working in BMC claiming for continuation of
its operations and antagonists, for closure of the company on the
allegation that it was illegally collecting sand from their patta lands
and also causing damage to the environment. In that back drop A1
being the sitting MLA of the constituency held a meeting on
18.10.2007 near the company to find out a solution for the problem.
On behalf of the company, LW.11 - Jagadeesh also attended the
said meeting. Both groups also attended. Learned counsel argued
that, during the course of meeting two groups exchanged heated
arguments and in that melee the deceased and some others
received injuries. However, being a responsible MLA of the
constituency, A1 has not instigated any one to attack the deceased
and others. It is vehemently argued by learned counsel that when
the meeting was organized at the instance of A1 that too in the
broad day light, it is quite unnatural, improbable and unconceivable
that A1 would instigate one group of people to attack the other
group. On the other hand, even as per the admission of prosecution
witnesses, A1 made a general invitation to the persons attended the
meeting to come to the dais and speak. This conduct would show
that he intended to gather the opinion of audience on the issue and
find out a solution for the problem. As such, it is highly unbelievable
that having made a general invitation and when the deceased and
some others came to the dais to express their view, the A1 would
instigate the other accused to do away with the deceased and his
family members. On the other hand due to the sudden provocation
between both parties and when both groups picked up quarrel, A1
unable to pacify them left the meeting and went away but he did not
instigate any one group to attack the others. Therefore, the trial
Court's finding that A1 instigated other accused to attack the
deceased and other witnesses is highly misconceived and
conviction of A1 for the offence U/s 302 r/w 109 IPC is
unsustainable.
(2) Learned counsel have further argued that admittedly the
villagers of Bangarammapeta, Nakkapalli and Pentakota villages
including the accused have gathered at the scene of offence only to
attend the meeting. However, due to sudden provocation from either
side, quarrel was occurred which resulted in injuries to deceased
and some others. In that view, there was neither instigation by A1
nor an unlawful assembly among the accused. It was only a free
fight but there was no pre-plan among the accused to attack the
deceased and other witnesses as alleged by the prosecution.
Learned counsel vehemently argued that taking advantage of the
fact that the deceased and some of his family members were
injured, the prosecution created a story as if there was an instigation
on the part of A1 which resulted in unlawful assembly among other
accused to attack the deceased and others. Learned counsel
pointed out that even according to post-mortem report, there was
only one injury on the head of the deceased which resulted in his
death and there were no other injuries on his body, which manifest
that the attack must have been made on him only by one person but
not by a mob in pursuance of unlawful assembly as alleged by the
prosecution. They argued that except the interested evidence of
PWs.1 to 3, no independent witnesses have spoken about the
alleged instigation by A1 and formation of unlawful assembly by the
other accused. Learned counsel while admitting that under law, the
evidence of interested witnesses need not be discarded, however
argued that prudence requires that such evidence must be carefully
scrutinized and corroboration has to be sought for from reliable
independent witnesses on material facts. Learned counsel
lamented that due to political rivalry with A1, the accused, some of
whom are women aged about 50 years, were falsely implicated in
the case and fastened with vicarious criminal liability which is unjust
and illegal. Learned counsel forcibly argued that mere presence of
a person or persons at a gathering for a different reason will not
make them as members of unlawful assembly unless the
prosecution clearly established that they shared a common criminal
object and as a result some of them committed an offence so as to
tag the liability on the other members. On this principle they relied
upon Baladin v. State of U.P1 and Naresh alias Nehru v. State of
Haryana 2 . Thus they argued that the evidence of interested
witnesses may be discarded and all the appellants/accused may be
acquitted. Alternatively, they submitted that those accused against
whom reliable evidence is available with regard to their overt acts
alone may be punished instead of roping the rest U/s 149 IPC.
(3) Nextly, it is argued that there is an abnormal delay in
lodging the FIR. In expatiation it is argued that when the incident
was occurred at about 14:00 hours on 18.10.2007, the report was
given only at 20:30 hours with a delay of 06:30 hours and there is
AIR 1956 SC 181
(2023) 10 SCC 134
no proper explanation for the said delay. Further, PW.1 who gave
the report admitted that at the time of drafting Ex.P.1-report all his
family members were present and after discussions they got drafted
Ex.P.1. Therefore, the FIR is tainted with false stories to implicate
innocents, which is evident from the fact that innocent women were
also arrayed as accused.
(4) In addendum, learned Senior Counsel Sri P.Veera Reddy
representing appellants/accused 19, 20, 22 to 24 argued that as per
original Charge No.4, a charge was framed U/s 302 r/w 149 IPC
against A1 to A3, A5 to A9, A11 to A20 and A22 to A24. However,
subsequently charge Nos.4 and 5 were altered and fresh Charge
Nos.4 to 6 were framed on 11.07.2014. Learned counsel would
point out that in the altered charge Nos.4 to 6, there was no charge
U/s 302 r/w 149 IPC against A1 to A3, A5 to A9, A11 to A20 and
A22 to A24 except a simple charge U/s 149 IPC. However, without
there being a charge U/s 302 r/w 149 IPC for such grave offence,
they were punished U/s 302 r/w 149 IPC and sentenced to undergo
life imprisonment with a fine of Rs.5,000/-. Learned counsel
vehemently argued that without a specific charge U/s 302 r/w 149,
the above accused ought not to have been convicted for the said
offence since the accused were severely prejudiced in choosing
their defence for the absence of substantive offence U/s 302 IPC
except mentioning Section 149 IPC in the charge. He placed
reliance on Anant Prakash Sinha v. State of Haryana3. Thus they
prayed to allow the criminal appeals and set aside the conviction
and sentence recorded in the impugned judgment.
(2016) 6 SCC 105
(5) Per contra, while supporting the judgment of the trial
Court, learned Public Prosecutor (PP) would argue that PWs.1 to 3
though are interested witnesses, however, they are eye witnesses
and received injuries in the incident and therefore their evidence
carry substantial weight. They have clearly deposed that A1
instigated other accused to do away with the family members of the
deceased who were supporting the running of BMC and accordingly
on his instigation, other accused attacked the deceased and PWs.1
to 3 and also damaged some vehicles with sticks and iron rods
brought with them to the meeting. He argued that the evidence of
PWs.1 to 3 is corroborated by PW.7-an independent witness on
material particulars and thereby, the unlawful assembly of accused
and its resulting in using criminal force was cogently established by
the prosecution. It is preposterous to argue that the prosecution
failed to prove the unlawful assembly resulting in attack on the
deceased and PWs.1 to 3.
Nextly, he argued that there is no delay in lodging FIR. In
expatiation he submitted that the incident was occurred at about
02:00 PM and immediately the deceased was taken to the
Government Hospital, Tuni by PW.1 and others in 108 ambulance,
where he was declared as brought dead and thereafter PW.1 went
to Nakkapalli PS and gave Ex.P1-report at about 08:30 PM.
Learned PP would submit that since PW.1 was mainly worried about
the critical condition of the deceased, he could give report to the
police only after his death and hence there was no delay in lodging
FIR. He also submitted that only true facts were mentioned in the
FIR. Learned PP further argued that charge U/s 149 is sufficient to
punish the accused for the offence U/s 302 r/w 149 IPC and there is
no irregularity in it. He thus prayed to dismiss the criminal appeals.
VI. POINTS FOR CONSIDERATION: The points that emerge for
consideration in these appeals are:
i) Whether the prosecution could establish that A1 instigated
other accused to do away with the lives of the deceased and his
family members?
ii) Whether the prosecution could able to establish that all the
accused formed into an unlawful assembly with a common object to
kill the deceased and cause injuries to some of the prosecution
witnesses and if so whether they are liable to be punished for the
offences under sections 147, 148, 323, 324 and 302 R/w 149 IPC?
iii) If point Nos. i & ii are held negatively, whether prosecution
established individual overt acts of the accused to punish them for
the offences they are liable under law?
iv) To what relief?
VII. ANALYSIS:
The above points are all intertwined and interconnected and
hence they can be analysed and decided together.
1. The admitted facts in prosecution case are that the accused,
the deceased and prosecution witnesses are residents of
Bangarammapeta, Pentathota and Nakkapalli Villages in
Payakaraopeta Legislative Assembly Constituency. A1 was MLA
during the relevant period for the said constituency. It is also an
admitted fact that BMCL acquired Ac.400 of land in
Bangarammapeta and Pentakota Villages in different survey
numbers to collect dry sand from those lands for extracting garnet
and illuminate raw material from the sand and started functioning
about four months prior to the incident occurred on 18.10.2007.
Some of the villagers of Bangarammapeta and surrounding places
were working in BMCL. The deceased and some of his family
members were also working in the said company. While so, in due
course, some of the villagers of the aforesaid villages demanded for
closure of the said company on the ground that while extracting
sand the company caused damage to the environment and it also
extracted sand from their patta lands. It appears since four days
prior to the incident, the company was closed. The deceased and
some others who were working in the company suffered loss of
earnings due to the closure and demanded for reopening of the
company and made dharnas in front of the company and in fact on
the date of incident also a dharna was made. In those
circumstances, on 18.10.2007, A1 being MLA of Payakaraopeta
constituency within whose jurisdiction the BMCL was operating,
conducted a meeting to discuss about the functioning of the said
company. The said meeting was organized near the BMCL and
about 200 to 500 people from the surrounding villages attended the
said meeting. The meeting was held between 12:00 - 02:00 pm. In
the said meeting, Gosala Konda father of PW1 received head injury
and succumbed to death while he was being shifted to Government
Hospital, Tuni. PW1 to PW3 and some others also received injuries
and some vehicles were also damaged in the incident. To this
extent, the facts are not in dispute.
2. While so, regarding the incident, the prosecution version
through PWs 1 to 3 is that A1 conducted the meeting and during the
meeting A1 announced to the gathering that if anyone intends to
speak they can speak and at that time when PW2 was going to the
stage to give his speech, PW1 and deceased also followed him to
the stage and at that juncture, A1 objected PW2 and pushed him
aside and instigated his supporters to do away with the lives of
deceased and his family members as they were supporting for the
functioning of the BMCL. On that the accused formed into an
unlawful assembly and attacked the deceased and his family
members i.e., PWs1 to 3 and others with the sticks and iron rods
which they brought with them to the meeting and A4 beat the
deceased on his head with MO1-iron rod and others also beat him
and A4 also beat on the legs of the PW1 and so also A2, A3, A5 to
A9 & A12 also beat PW1 and some other witnesses. While the
deceased was being taken to Government Hospital, Tuni, he died
on the way and later PW1 gave Ex.P1-report to the police.
3. Denying the prosecution case the defence of accused is one
of the total denial of the offence. Their version is that the deceased
and others received injuries in the company in some other manner
in the galata for which the accused are not responsible. It is also
denied that A1 instigated the other accused and they formed into an
unlawful assembly and committed the offence. They staunchly
denied A1 instigated the other accused and as a result they formed
unto unlawful assembly with a common object to do away with the
lives of the deceased and his family members and accordingly
attacked them.
(a) In the light of such denial, the foremost burden which
heavily rests on the prosecution is to establish by cogent evidence
that A1 indeed instigated the other accused to do away with the
lives of deceased and his family members and nextly, to establish
that pursuant thereof, the other accused formed into an unlawful
assembly with a common object to kill the deceased and his family
members and attacked them. The legal aspects as to when an
assembly transforms into an unlawful assembly; what is the
constructive criminal liability of a member of an unlawful assembly
etc., are no more res integra.
4. Generally there is no vicarious liability under criminal law
except in few instances, one of which is, when a member of
unlawful assembly commits an offence in prosecution of common
object of that assembly or if the members of such assembly knew it
to be likely to be committed, every person who was a member of the
said assembly at the time of commission of the offence will be guilty
of that offence though he himself has not perpetrated that offence.
This is precisely one of the instances of fastening criminal liability on
one person vicariously for the offence committed by another person.
Chapter VIII of the IPC under the heading of offences against the
public tranquillity deals with the nuances of unlawful assembly.
(a) Section 141 defines unlawful assembly thus:
"141. An assembly of five or more persons is designated an
"unlawful assembly", if the common object of the persons
composing that assembly is -
First.- To overawe by criminal force, or show of criminal force, the
Central or any State Government or Parliament or the Legislative
of any State, or any public servant in the exercise of the lawful
power of such public servant; or
Second.- To resist the execution of any law, or of any legal
process; or
Third.- To commit any mischief or criminal trespass, or other
offence; or
Fourth.- By means of criminal force, or show of criminal force, to
any person, to take or obtain possession of any property, or to
deprive any person of the enjoyment of a right of way, or of the
use of water or other incorporeal right of which he is in possession
or enjoyment, or to enforce any right or supposed right; or
Fifth.- By means of criminal force, or show of criminal force, to
compel any person to do what he is not legally bound to do, or to
omit to do what he is legally entitled to do.
Explanation.- An assembly, which was not unlawful when it
assembled, may subsequently become an unlawful assembly."
The ingredients of unlawful assembly are
(i) there is an assembly of five persons
(ii) the assembly had a common object and
(iii) the common object is to do one or more of the illegal
acts specified in section.
(iv) the explanation: An assembly which at its beginning
was not an unlawful assembly, may subsequently
become an unlawful assembly.
(a) Thus an assembly of five or more persons having its
common object any of the five objects enumerated under section
141 IPC is deemed to be an unlawful assembly. Membership of an
unlawful assembly is itself an offence punishable under section 143
of IPC for a term which may extent to six months or with fine or with
both. The other species of the said offence are dealt with under
sections 143 to 145.
(b) We have seen that mere membership in unlawful
assembly itself is an independent offence. Then the question is
when the members of unlawful assembly commits an act in
furtherance of the common object, what is the sentence provided
there-for. Section 146 to 148 of IPC deal with the offence of rioting.
Section 146 lays down that whenever force or violence is used by
an unlawful assembly, or by any member thereof, in prosecution of
common object of such assembly, every member of such assembly
is guilty of the offence of rioting and punishable for a term which
may extend to two years or with fine or with both under section 147.
Then the aggravated form of rioting is using arms or deadly
weapons for committing rioting. Section 148 lays down that whoever
is guilty of rioting being armed with deadly weapon or with anything
which, used as a weapon of offence, is likely to cause death, shall
be punished with a term extended upto three years.
5. Then the constructive liability among the members of unlawful
assembly is more vividly pronounced under Section 149 of IPC. This
section reads thus:
"149. If an offence is committed by any member of an unlawful
assembly in prosecution of the common object or that assembly,
or such as the members of that assembly knew to be likely to be
committed in prosecution of that object, every person who, at the
time of the committing of that offence, is a member of the same
assembly, is guilty of that offence."
The section has the following ingredients:
1. There must be an unlawful assembly.
2. Commission of an offence by any member of an
unlawful assembly.
3. Such offence must have been committed in prosecution
of the common object of the assembly; or must be such
as the members of the assembly knew to be likely to be
committed.
(a) Thus section 149 is a specific, distinct and substantive
offence. When a person falls within the groove of unlawful assembly
and any other member of unlawful assembly commits an offence,
then former cannot putforth a defence that he himself, did not
commit the offence with his own hands. The constructive culpability
is thus explained in this section. The principle of vicarious liability in
criminal law has been more vividly extrapolated in different cases by
Hon'ble Apex Court.
(i) In Masalti v. State of U.P.4 the Apex Court observed
that section 149 is in a sense vicarious and does not always
proceed on the basis that the offence has been actually committed
by every member of the unlawful assembly.
(ii) Expressing similar view, in Lalji and Ors v. State of
U.P.5 the Apex Court held that it is not necessary for each member
of an unlawful assembly to do an overt act to fasten him with
criminal liability. It was observed thus:
"9. Section 149 makes every member of an unlawful assembly at
the time of committing of the offence guilty of that offence. Thus
this section created a specific and distinct offence. In other words,
it created a constructive or vicarious liability of the members of the
unlawful assembly for the unlawful acts committed pursuant to the
common object by any other member of that assembly. However,
the vicarious liability of the members of the unlawful assembly
extends only to the acts done in pursuance of the common object
of the unlawful assembly, or to such offences as the members of
the unlawful assembly knew to be likely to be committed in
prosecution of that object. Once the case of a person falls within
the ingredients of the section the question that he did nothing with
his own hands would be immaterial. He cannot put forward the
defence that he did not with his own hands commit the offence
committed in prosecution of the common object of the unlawful
AIR 1965 SC 202
AIR 1989 SC 754
assembly or such as the members of the assembly knew to be
likely to be committed in prosecution of that object. Everyone
must be taken to have intended the probable and natural results
of the combination of the acts in which he joined, It is not
necessary that all the persons forming an unlawful assembly must
do some overt act. When the accused persons assembled
together, armed with lathis, and were parties to the assault on the
complainant party, the prosecution is not obliged to prove which
specific overt act was done by which of the accused. This section
makes a member of the unlawful assembly responsible as a
principal for the acts of each, and all, merely because he is a
member of an unlawful assembly. While overt act and active
participation may indicate common intention of the person
perpetrating the crime, the mere presence in the unlawful
assembly may fasten vicariously criminal liability under Section
149. It must be noted that the basis of the constructive guilt under
Section 149 is mere membership of the unlawful assembly, with
the requisite common object or knowledge."
(iii) In Bhudeo Mandal and Ors v. State of Bihar 6 the
Apex Court observed that common object is the sine qua non to
punish a person with the aid of section 149. It was observed thus:
"1.xxx We should like to point out that whenever the High court
convicts any person or persons of an offence with the aid of
Section 149 a clear finding regarding the common object of the
assembly must be given and the evidence discussed must show
not only the nature of the common object but also that the object
was unlawful. Before recording a conviction under Section 149 of
the Indian Penal Code, the essential ingredient of Section 141 of
the Indian Penal Code must be established. Section 149 creates a
specific offence and deals with the punishment of that offence.
There is an assembly of five or more persons having a common
object and the doing of acts by members is in prosecution of that
object. The emphasis is on common object.xxxx"
(iv) In Musakhan and Ors v. State of Maharashtra7 the
Apex Court held that mere presence in the mob will not make a
person a member of an unlawful assembly. It observed thus:
"5. xxxx It is well settled that a mere innocent presence in an
assembly of persons, as for example a bystander, does not make
the accused a member of an unlawful assembly, unless it is
shown by direct or circumstantial evidence that the accused
AIR 1981 SC 1219
AIR 1976 SC 2566
shared the common object of the assembly. Thus a court is not
entitled to presume that any and every person who is proved to
have been present near riotous mob at any time or to have joined
or left it at any stage during its activities is in law guilty of every
act committed by it from the beginning to the end, or that each
member of such a crowd must from the beginning have
anticipated and contemplated the nature of the illegal activities in
which the assembly would subsequently indulge. In other words, it
must be proved in each case that the person concerned was not
only a member of the unlawful assembly at some stage, but at all
the crucial stages and shared the common object of the assembly
at all these stages. xxxx"
(v) Above similar view is expressed in Bishambher
Bhagat and Ors. v. State of Bihar8. The Supreme Court observed
that mere presence of a person at the place where members of an
unlawful assembly have gathered for carrying out their illegal
common object, does not incriminate him. But the question is one of
the fact in each case as to whether a person happens to be
innocently present at the place of the occurrence or was actually a
member of the unlawful assembly.
(vi) In Bhagwan Singh and Ors v. State of Madhya
Pradesh9 the Apex Court held thus:
"9. Common object, as contemplated by Section 149 of the Indian
Penal Code, does not require prior concert or meeting of minds
before the attack. Generally no direct evidence is available
regarding the existence of common object which, in each case,
has to be ascertained from the attending facts and circumstances.
When a concerted attack is made on the victim by a large number
of persons armed with deadly weapons, it is often difficult to
determine the actual part played by each offender and easy to
hold that such persons attacked the victim had the common object
for an offence which was known to be likely to be committed in
prosecution of such an object. It is true that a mere innocent
person, in an assembly of persons or being a by-stander does not
make such person a member of an unlawful assembly but where
the persons forming the assembly are shown to be having
identical interest in pursuance of which some of them come
armed, others though not armed would, under the normal
AIR 1971 SC 2381
(2002) 4 SCC 85
circumstances, be deemed to be the members of the unlawful
assembly.
In this case the accused persons have been proved to be on
inimical terms with the complainant-party. The enmity between the
parties had been aggravated on account of litigation with respect
to the dispute over the mango trees. Accused persons who came
on the spot are shown to have come armed with deadly weapons.
The facts and circumstances of the case unequivocally prove the
existence of the common object of such persons forming the
unlawful assembly who had come on the spot and attacked the
complainant party in consequence of which three precious lives
were lost. The High Court was, therefore, justified in holding that
the accused persons, involved in the occurrence, had shared the
common object."
6. Thus the jurimetrical jurisprudence on constructive liability
envisaged in section 149 IPC tells us that a person can be
vicariously held liable for the criminal act of an another person
provided the former is proved to be a member of unlawful assembly
sharing the common object to commit an offence. However, mere
presence of a person will not automatically make him a member of
unlawful assembly. Whether a person is member of such unlawful
assembly is a question of fact. With this knowledge the case on
hand has to be scrutinized.
7. Since it is the case of prosecution that on the instigation of A1,
the other accused formed into unlawful assembly and attacked the
deceased and others it has to be seen whether there was indeed
such an instigation made by A1. PWs 1 to 3 in their evidence have
no doubt deposed that A1 asked his supporters to see the end of the
lives of the deceased and his family members to curtail them from
supporting the company. However, the argument of defense side is
that PWs 1 to 3 are interested witnesses, inasmuch as, PW1 is the
son of deceased and PWs 2 & 3 are the sons of the brothers of the
deceased. Besides there are some political differences between A1
and deceased's family members and further, there are
contradictions between PWs 1 to 3 on material particulars and
hence their evidence shall be rejected or carefully scrutinized and
corroboration has to be sought for from the independent witnesses.
8. We heard about the criticism on the evidence of PWs 1 to 3.
True is that generally the evidence of a related witness or interested
witness ipso facto cannot be discarded and if their evidence infuses
confidence same can be accepted also. However, when pre-existing
disputes are there between them and chances of implication of
innocents is also there, then prudence requires corroboration from
authenticated witnesses. In Raju and Ors v. State of Tamil Nadu10
the Apex Court observed thus:
"33. For the time being, we are concerned with four categories of
witnesses - a third party disinterested and unrelated witness (such
as a bystander or passer-by); a third party interested witness
(such as a trap witness); a related and therefore an interested
witness (such as the wife of the victim) having an interest in
seeing that the accused is punished; a related and therefore an
interested witness (such as the wife or brother of the victim)
having an interest in seeing the accused punished and also
having some enmity with the accused. But, more than the
categorization of a witness, the issue really is one of appreciation
of the evidence of a witness. A court should examine the evidence
of a related and interested witness having an interest in seeing
the accused punished and also having some enmity with the
accused with greater care and caution than the evidence of a third
party disinterested and unrelated witness. This is all that is
expected and required.
xxxx
38. The sum and substance is that the evidence of a related or
interested witness should be meticulously and carefully examined.
In a case where the related and interested witness may have
some enmity with the assailant, the bar would need to be raised
and the evidence of the witness would have to be examined by
applying a standard of discerning scrutiny. However, this is only a
(2012) 12 SCC 701
rule of prudence and not one of law, as held in Dalip Singh and
pithily reiterated in Sarwan Singh in the following words:
The evidence of an interested witness does not
suffer from any infirmity as such, but the courts
require as a rule of prudence, not as a rule of law,
that the evidence of such witnesses should be
scrutinized with a little care. Once that approach is
made and the court is satisfied that the evidence of
interested witnesses have a ring of truth such
evidence could be relied upon even without
corroboration."
9. In the light of above jurisprudence on the testimony of
relatives and interested witnesses, it has now to be seen whether
the testimony of PWs 1 to 3 who are admittedly related witnesses is
believable on its face value or corroboration is essential from
independent witnesses.
10. PW1 is the son of deceased. In his evidence PW1 deposed
that on 18.10.2007, A1 arranged a meeting in front of BMCL at
Bagarammapeta Village and while the meeting was going on, A1
asked the gathering to speak if anyone intends to speak in the
meeting. Then PW2 while going to the stage to give speech, this
witness followed along with his father (deceased) and some others.
Then A1 pushed PW2 and A1 asked his supporters to see the end
of the lives of deceased's family members. He further stated that A1
and other accused were armed with knives iron rods and his father
was beaten and he sustained bleeding injuries on his head.
11. Then PW2 who is the cousin of PW1 also deposed in similar
lines. He stated that about 200 persons belonging to
Bangarammapeta and other villages were working in BMCL
company and four days prior to the incident the company was
closed at the instance of A1. Then the employees of the company
conducted a dharna for losing their jobs and demanded to reopen
the company. On 18.10.2007 A1 arranged a meeting near company
he also brought about 500 persons in vans from other villages. A1
announced in the mike requesting the gathering to speak about the
company with anyone intends to speak. Then this witness (PW2)
along with PW1, the deceased and others went to the stage to
speak but aA1 pushed him and the supporters also pushed him.
Then A1 asked his followers to see the end of the lives of his family
members to curtail the support to the company. All the accused
gathered and armed with iron rods, sticks, chilli powder. A2, A3 A4 &
A8 surrounded the deceased. A4 beat the deceased on the head
with MO1-rod. Having observed the same this witness (PW2) ran
away from the spot.
12. Then PW3 who is also cousin of PW1 deposed that there
were about 250 to 300 person working in BMCL company. On
18.10.2007 A1 held a meeting by the side of the said company at
12:00 noon. In the meeting A1 asked the gathering to speak if
anyone intends to speak and when PW2 went to speak, A1 pushed
him aside questioning him as to who invited him to speak. In the
meanwhile, the followers of A1 dragged PW2. Then A1 instigated
his followers to do away with the lives of family members of PW2. All
the accused gathered and collected weapons like iron rods and
sticks and chilli powder. When the accused tried to attack them, out
of fear this witness and other tried to run away into the company
premises, but they followed and A4 beat the deceased with an iron
rod on the back of the head and caused bleeding injury and
deceased fell down. Then this witness and others interfered and
rescued the deceased and shifted him to the hospital in 108
ambulance but on the way the deceased died.
13. Then PW4 who is a distant relation of PWs 1 & 2 (as he
admitted in the cross-examination) deposed that four days prior to
the incident the company people closed BMCL company. On that A1
arranged meeting on 18.10.2007. This witness also attended the
meeting. Then A1 asked the gathering to speak if anyone intends to
speak on behalf of the company. Then PW2 went to dias to speak
and this witness followed him to some extent. Then A1 pushed PW2
and all the accused picked up iron rods and tried to attack them and
due to fear this witness tried to run away from the spot. In the
meanwhile, A4 beat the deceased with an iron rod on his head and
caused bleeding injury. This witness also received bleeding injury on
the fingers of his right hand and he ran away from the spot. In the
cross-examination he stated that about 1000 persons attended the
meeting and again he stated 500 to 600 persons attended the
meeting. He also stated that about 10 to 15 persons including A1
were on the stage.
14. The above is the evidence of PWs 1 to 4 on the incident. So
far as the instigation by A1 to other accused and their forming into
unlawful assembly is concerned, no doubt PWs 1 to 3 have deposed
positively. However, the following attending circumstances cast
doubt on the veracity of their evidence.
15. Admittedly, A1 was the MLA of the constituency during the
relevant time. About four days prior to the incident the company was
closed. All the four witnesses stated that A1 arranged the meeting in
front of the BMCL on 18.10.2007. PW3 specifically admitted in the
cross-examination that the meeting was held to settle the dispute in
between the two groups of Bangarammapeta village - one is
supporting the company and another is against the company. The
above witnesses stated that about 200 to 250 persons belonging to
Bangarammapeta village working in the company and they were
supporting the company and they attended the meeting. Some other
witnesses stated that in all, nearly 500 to 600 persons attended the
meeting. PW2 as well as PW7 stated that LW11-D.Jagadeesh who
is the CEO of BMCL also attended the meeting. The witnesses
stated that the meeting was held between 12:00 - 02:00 noon.
16. On close scrutiny of the above facts, when the meeting was
organized in the broad day light near the BMCL company at the
instance of A1 in order to find out the solution regarding the working
of the BMCL and when about 500 to 600 persons belonging to both
groups attended the said meeting and so also LW11-the CEO of
BMCL also attended the meeting and most importantly, when A1
himself has requested the gathering that anyone who wants to
speak regarding the company can come to dias and speak, it is
highly improbable and unbelievable that, when PW2, the deceased
and PW1 went to the dias, A1 pushed him and instigated the other
accused to do away with the lives of the deceased and his family
members. One cannot be oblivious of the fact that not only the
family members of the deceased who are supporting the company
attended the meeting but hundreds of others who were supporting
the company also attended the meeting to invite a solution. In the
presence of such gathering, it is quite unbelievable and improbable
that A1 being a responsible MLA would instigate the other accused
to kill the deceased and his family members. If he did so, there
would be danger for him as other group would retaliate against him.
This improbability or doubt intensifies when Ex.P1-report given by
PW1 is perused. In Ex.P1 there is no clear mentioning that A1 has
instigated other accused to kill deceased and his family members.
Without naming anybody, it was dubiously mentioned that some
person pointed out PW2 and instigated the other accused to kill
PW2 and his family members and went away. Though a FIR is not
an encyclopedia to mention all the facts but the complainant cannot
be expected to miss certain crucial facts. In the present context,
non-mentioning of A1's name specifically in FIR as instigator creates
a doubt about the veracity of the evidence of PWs 1 to 3 regarding
the role of A1. Therefore, necessarily, corroboration has to be
sought for from other witnesses. In that context when the evidence
of PW4 which is mentioned supra is scrutinized, surprisingly he did
not specifically state that A1 had instigated other accused to kill the
family members of deceased. He only stated that A1 pushed PW2. It
should be noted, PW4 is a distant relation of PW1. Then PW7 an
independent witness who attended the meeting deposed that A1
attended the meeting held on 18.10.2007 and LW11 also attended
the meeting on behalf of the management. He stated that on the
advice of A1 when PW2 went to the dias in support of the company,
A1 refused to give permission to him, then some of the persons
pushed this witness and due to fear, while he was running away
from the spot, then A4 beat the deceased with an iron rod on his
head and all the accused abused him touching his caste and they
damaged the bikes and other vehicles. Without naming anybody, he
stated that he was beaten by hands. He again stated that the
accused tried to kill him and other persons but they were luckily
escaped. Thus, PW7 also did not specifically state that A1 had
instigated the other accused to kill the deceased and his family
members. Be that as it may, the prosecution examined some other
independent witnesses viz., PW5, PW6, PW8, PW9, PW10, PW11,
PW12, PW13, PW14, but they did not support the prosecution case
and they were declared as hostile by learned Additional P.P. Their
evidence is of no avail to prosecution.
17. Then PW15 is another independent witness. He deposed that
on 18.10.2007 A1 held a meeting at BMCL company to close the
company and he asked the gathering to speak if anyone intends to
speak on behalf of the company and when PW2 went to the dias A1
pushed him. This witness who attended the meeting, ran away from
the spot due to fear. Thus, this witness also did not specifically state
that A1 instigated the other accused. Therefore, except the
interested evidence of PWs 1 to 3 which in the circumstances
discussed supra is unbelievable, there is no corroboration from
independent witnesses regarding the alleged instigation of A1.
Above all, the prosecution for the reasons best known to it, has not
examined the crucial witness i.e., LW11-D.Jagadeeshan who is the
CEO of BMCL and who also attended the meeting. He should have
shed light on the real occurrence of the incident. For all these
reasons, we are constrained to hold that prosecution failed to prove
the complicity of A1 in the offence.
18. Then we scrutinized the evidence to find out whether other
accused formed into an unlawful assembly with a common object to
kill the deceased and his family members and attacked them. The
law discussed supra no doubt explicates that an assembly which
was initially a lawful assembly may later turn into an unlawful
assembly and commit an offence. Whether such is the instant case
is the question. From the facts and evidence we are unable to agree
that the accused formed into an unlawful assembly. Since inception
the prosecution case was that the villagers of Bangarammapeta and
other surrounding villages attended the meeting to discuss about the
fate of BMCL company. The gathering consisted of both groups and
even some ladies also attended the meeting. Some of the accused
are also ladies. PW3 admitted in the cross-examination that the
meeting was held to settle the disputes between the two groups. He
also admitted that all the accused came to the meeting place and at
that time they were not armed with weapons such as iron rods,
sticks, etc. Thus, from the facts and evidence it can be stated that
the accused attended the meeting like others and there was no
unlawful assembly at that time. Even during the time of incident also,
since the alleged instigation of A1 is ruled out, there can be no
formation of unlawful assembly with any common object by the other
accused. Therefore, the accused cannot be roped in under Section
149 IPC, for, the sine qua non for employing Section 149 is the
unlawful assembly. That is missing in this case and therefore, the
incident can be described only as a free fight or clash between the
two rival groups. Added to above, as rightly argued by Sri P.Veera
Reddy, learned Senior Counsel, as per the altered charges dated
11.07.2014 there was no charge under Section 302 r/w 149 against
A1 to A3, A5 to A9, A11 to A20 and A22 to A24 except the charge
under section 149. Thus, there is no charge for substantial offence.
When unlawful assembly among the accused is ruled out the
question of punishing them for the offence under section 302 with
the aid of section 149, that too without there being a specific charge
to that effect, does not arise. Therefore, if the accused are to be
punished, they should be punished independently for their individual
acts but not collectively.
19. Then individual acts are concerned, in this case, one Gosala
Konda father of PW1 received injuries in the incident and died.
Similarly PWs 1, 3 to 7 received simple injuries. Therefore, the
question is which of the accused are responsible for the said
injuries.
(a) So far as death blow caused to Gosala Konda is
concerned, PW1 in his evidence except stating that his father
(deceased) was beaten and he sustained bleeding injuries on his
head, did not specifically state which of the accused beat his father.
However, in the cross-examination he stated as if A4 beat the
deceased with an iron rod on the back of his head. He did not state
about other accused causing injuries to his father. The PW2 also
deposed that A4 beat the deceased on his head with MO1-rod. PW3
also deposed similarly stating that A4 beat the deceased with an
iron rod on the back of his head causing bleeding injury and
deceased fell down on the ground. So also PW4 stated that A4 beat
the deceased with an iron rod on his head. Then PW7 also stated
that A4 beat the deceased with an iron rod on the back side of his
head. The evidence of these witnesses could not be shattered in the
cross-examination and hence the said unimpeachable evidence
clearly shows that it was A4 who gave a fatal blow on the head of
the deceased. The ocular evidence is corroborated by the medical
witness, inasmuch as, PW21-the Doctor who conducted post
mortem on the dead body of deceased and issued Ex.P24-
P.M.Certificate deposed that he found fracture of skull at the right
frontal region, fracture line obliquely placed, triangular piece of skull
bone entering into the brain substance and tearing the dura with
extra dural hemorrhage. Except the above injury he did not find any
other injuries on the dead body. Thus, it can be safely concluded
that it was accused No.4 who gave fatal blow on the head of the
deceased with iron rod which resulted in the death of deceased and
therefore, he is liable for the offence under section 302 IPC.
However, the judgment of the trial court shows the said A4-Koviri
Appala Raju died pending trial.
(b) Then PW1 received injuries in the incident. He deposed
that in the melee when he went to rescue his father, A4 beat him
with MO1-iron rod on his legs. He also stated that A2, A3, A5, A6,
A7, A9 & A12 also beat him with MOs 2 to 5. In the cross-
examination he stated that the other accused beat him with hands,
iron rods and also sticks. He admitted that except the injury on his
legs he has not received any other injuries on his body. While so,
PW16-the CAS Rajamundry has examined PW1 on 22.10.2007 and
issued Ex.P12-wound certificate. The evidence of PW16 coupled
with Ex.P12 would show that the PW1 sustained one black brown
flat contusion of 10x2 cm on the left lateral aspect of left upper leg.
The injury was a simple injury. Except that the PW1 did not receive
any other injuries. The above injury on his left leg corresponds to the
injury caused by A4 on his leg. Though PW1 stated that other
accused also caused injuries with hands, iron rods and sticks,
however, there are no perceivable injuries on his body. Therefore,
the evidence of PW1 can be believed to the extent that he received
injury in the hands of A4 alone. However, since A4 is no more he
cannot be punished.
(c) Then according to prosecution PW3-G.Tata Rao also
sustained injuries and PW16-the Doctor examined him and issued
Ex.P13-wound certificate as per which he sustained a simple injury
on his left fore arm. However, PW3 in his evidence did not state that
he sustained any injuries in the hands of accused. The Public
Prosecutor also did not confront Ex.P13 to him to elicit whether he
sustained injuries as noted in Ex.P13. Therefore, without substantial
evidence forthcoming from horse's mouth, the injuries on the
strength of Ex.P13 cannot be accepted.
(d) Then according to prosecution PW4 also sustained
injuries. PW16 examined him and issued Ex.P14-wound certificate
as per which he suffered a lacerated wound on the right middle
finger which is a simple injury. PW4 also in his evidence stated as if
he received a bleeding injury on the fingers of his right hand.
However, he did not state as to who caused him the injuries. In the
cross-examination he only stated that, he sustained injury in the
sand nearby the road. In the absence of specifying the persons who
caused him injuries, it will be difficult to attribute his injuries to any
specific accused. Therefore, with available evidence it is not
possible to hold any accused to be responsible for his injury.
(e) Then according to prosecution, PW5 also sustained injury
in the incident and PW21-the Civil Assistant Surgeon of Area
Hospital, Tuni examined him and issued Ex.P20-wound certificate
as per which he suffered contusion over the right foot and right lower
leg and both the injuries were simple in nature. However, in his
deposition PW5 has not stated anything about his sustaining injuries
in the incident. Therefore, the accused cannot be held responsible
for his injuries.
(f) Then as per prosecution PW6 also received injury and
PW21 examined him and issued Ex.P22-wound certificate as per
which he suffered contusion over anterior abdominal wall which is a
simple injury. PW6 in his evidence though stated that he also
received injury in the galata, however, neither he specified the
persons who caused him injuries nor he stated the nature of injuries
sustained by him. Therefore, his evidence is also not useful to
impute anybody.
(g) Then as per prosecution PW7 also sustained injuries.
PW21 examined him and issued Ex.P23-wound certificate as per
which except complaining body pains, he was not having any
external injuries. Coming to evidence PW7 only stated that he was
also beaten with hands by some persons who were not present in
the court and they were not the accused. Thus, according to him
some persons other than the accused beat him.
(h) Thus, when the entire evidence is carefully scrutinized, the
fatal blow to the deceased and injury to PW1 were caused by A4
who died and hence cannot be convicted and sentenced. So far as
the others witnesses and their injuries are concerned, by virtue of
the nature of the evidence available none of the accused can be
punished.
20. Thus on a conspectus of facts, evidence and law, it must be
said, the prosecution could establish its case only against A4 but he
died and hence cannot be convicted and sentenced. Other accused
are concerned, the prosecution failed to establish their guilt to the
hilt beyond reasonable doubt. The trial court, in our considered view
failed to appreciate the evidence and law in proper perspective. The
points are accordingly answered.
21. It should be noted that the appellants advanced an argument
as if there was a delay in lodging FIR. We find no venom in this
argument. As rightly argued by learned Public Prosecutor, the
incident was occurred at 14 hours on 18.10.2007 and wherein the
deceased was severely injured and taken to Government Hospital,
Tuni by PW1 and others in 108 Ambulance. At that time, since the
deceased was critically injured, PW.1 and others were mainly
concerned with his health. In the Hospital he was declared dead
and thereafter PW.1 returned and lodged FIR at 08:30 PM. In view
of these facts, one cannot say there is a delay, much less inordinate
delay in lodging the FIR.
22. In the result, Crl.A.Nos.544, 609, 660, 661 & 662 of 2017 filed
by appellants/A1 to A3, A5 to A9, A11 to A17, A19, A20, A22 & A24
are allowed and conviction and sentence passed against them in
S.C.No.41/2010 by the learned X Additional District & Sessions
Judge, Visakhapatnam at Anakapalli are set aside and fine amount
if deposited by them shall be refunded and their bail bonds shall be
cancelled and they shall be set at liberty.
As a sequel, interlocutory applications pending if any in these
appeals shall stand closed.
_______________________
U.DURGA PRASAD RAO, J
__________________________
KIRANMAYEE MANDAVA, J
27.06.2024
KRK/NNN
