BUSI KOTESWARA RAO & ORS.versusSTATE OF A.P.

                       [2012] 9 S.C.R. 1046


A               BUSI KOTESWARA RAO & ORS.
                                 v.
                          STATE OF A.P.
                (Criminal Appeal No. 454 of 2009)

                      NOVEMBER 22, 2012
B
          [P. SATHASIVAM AND RANJAN GOGOi, JJ.]

       Penal Code, 1860 - s. 148 and s. 436 rlw s. 149- Arson and
  violence between two rival groups of the same village -
C Conviction of accused-appellants - Justification - Held:
  Justified - At least two PWs spoke about the involvement and
  the role played by the appellants - It is clear from the
  statements made by the PWs that the appellants came in a
  mob and set ablaze around 50 dwelling houses and reduced
o them into ashes and the same were identified and the
  involvement of the appellants was established beyond
  reasonable doubt.

       Sentence I Sentencing - Reduction of sentence -
E Conviction u/s.436 and sentence of 7 years by trial court -
  High Court reducing sentence of 3 years - Correctness of -
  Held: s. 436 enables the court to award punishment with
  imprisonment for life or with imprisonment of either
  description for a term which may extend to 10 years in
  addition to fine - In view of the sentence prescribed u/s. 436
F of /PC, the reduction of sentence by the High Court was not
  warranted, however, in absence of appeal by the State, such
  reduction in sentence not disturbed.

       Evidence - Clash between rival groups - Large number
G C?f offenders and large number of victims - Testimony of
  witness - Appreciation of - Duty of criminal courts - Held:
  When a criminal court has to deal with evidence pertaining
  to the commission of an offence involving a large number of
  offenders and a large number of victims, the normal test is
H                            1046
 BUSI KOTESWARA RAO & ORS. v. STATE OF A.P. 1047


that the conviction can be sustained only if it is supported by   A
two or more witnesses who give a consistent account of the
incident in question - Administration of Criminal Justice.

    There was arson and violence between two rival
groups of the same village. It was alleged that the
                                                                  B
accused-appellants formed an unlawful assembly, and
armed with deadly weapons raided a Harijan colony and
set ablaze around 50 dwelling houses of the prosecution
party and abused them in the name of their caste. Charge
sheet was filed against the accused persons for offences          C
punishable under Sections 147, 148, 435, 436 read with
Section 149 IPC and Sections 3(1)(v), 3(1)(x), 3(2)(v) and
3(2)(iv) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989.

     The trial court found the appellants and the other           D
accused guilty and convicted and sentenced each of
them to suffer RI for one year and to pay a fine of Rs.2000/
- each, in default, to further undergo simple imprisonment
(SI) for one month for the offence punishable under
Section 148 IPC and further sentenced each of them to             E
suffer RI for 7 years and to pay a fine of Rs.10,000/-, in
default, to further undergo SI for two months for the
offence punishable under Section 436 IPC read with
Section 149 IPC.

     In appeal, the High Court set aside the conviction           F
and sentence of other accused, but upheld the conviction
of the appellants under Sections 148 and 436 IPC though
it reduced their sentence under Section 436 IPC from 7
years to 3 years while maintaining the amount of fine.
Hence the instant appeals.                                        G

    Dismissing the appeals, the Court

    HELD: 1. In the case on hand, total 79 persons were
charge-sheeted for various offences under IPC including
                                                                  H
   1048    SUPREME COURT REPORTS              [2012] 9 S.C.R.

A Sections 147, 148 and Section 436. Though the
  prosecution examined 52 witnesses, among those
  witnesses, PWs 1-42 alone were cited as the eye-
  witnesses to the occurrence. PWs 2, 4-15, 18, 20, 22, 23
  and 26-41 did not support the case of the prosecution
B and were declared hostile witnesses. On the other hand,
  PWs 1, 3, 16, 17, 19, 21, 24, 25 and 42 supported the
  version of the prosecution. [Para 4] [1052-G-H; 1053-A]

       2.1. The incident in question was a group clash
  between two rivalries. In such type of incidents, an
C onerous duty is cast upon the criminal courts to ensure
  that no innocent is convicted and deprived of his
  liberties. At the same time, in the case of group clashes
  and organized crimes, persons behind the scene
  executing the crime should not be allowed to go scot-free.
D In other words, in cases involving a number of accused
  persons, a balanced approach by the court is required
  to be insisted upon. In cases of arson and murder where
  large number of people are accused of committing crime,
  the courts should be cautious to rely upon the testimony
E of witnesses speaking generally without specific
  reference to the accused or the specific role played by
  them. [Para 5] [1053-C-E]

       2.2. It is clear that when a criminal court has to deal
F with evidence pertaining to the commission of an offence
  involving a large number of offenders and a large number
  of victims, the normal test is that the conviction could be
  sustained only if it is supported by two or more witnesses
  who give a consistent account of the incident in question.
G [Para 7] [1054-E-F]
       2.3. In the instant case, as discussed by the High
  Court, PWs 1-21 spoke about the participation of A-1 and
  A-38 whereas PWs 3 and 42 narrated with regard to the
  participation of A-4 and PWs 16 and 17 described about
H the participation of A-30. In the same way, the participation
 BUSI KOTESWARA RAO & ORS. v. STATE OF A.P. 1049

of the 12 accused persons has been spoken to by two           A
or more witnesses. Inasmuch as at least two prosecution
witnesses have spoken about the involvement and the
role played by the above accused persons, there is no
reason to differ with the· decision arrived by the High
Court. It is clear from the statements made by the            B
witnesses on the side of the prosecution that the
appellants/accused came in a mob and set ablaze around
50 dwelling houses and reduced them into ashes and the
same were identified and their involvement is established
by the reliable prosecution witnesses beyond reasonable       c
doubt which cannot be disturbed. On the other hand, the
view and the ultimate decision arrived by the High Court
is fully endorsed. [Paras 11, 12) [1055-C-G]

    Masalti & Ors. v. The State of Uttar Pradesh AIR 1965
SC 202: 1964 SCR 133 and State of UP. v. Dan Singh and        D
Others (1997) 3 sec 747: 1997 (1) SCR 764 - relied on.

      3. Coming to the sentence, the prosecution has
established the offence under Sections 148 and 436 of
IPC. Insofar as the appellants are concerned, though the      E
trial Court has awarded 7 years of imprisonment, the High
Court reduced the same to 3 years while maintaining the
fine amount. In fact, Section 436 IPC enables the court to
award punishment with imprisonment for life or with
imprisonment of either description for a term which may       F
extend to 10 years in addition to the fine. Keeping in view
the sentence prescribed under Section 436 IPC, the
reduction of sentence by the High Court is not warranted,
however, in the absence of appeal by the State, this Court
is not inclined to disturb the same. [Para 13) [1055-H;       G
1056-A-B-C]
                    Case Law Reference:
    1964 SCR 133            relied on        Para 6
    1997 (1) SCR 764        relied on         Paras 8,9, 12   H
    1050     SUPREME COURT REPORTS                [2012] 9 S.C.R.


A       CRIMINAL APPELLLATE JURISDICTION : Criminal
    Appeal No. 454 of 2009 etc.

        From the Judgment & Order dated 20.06.2007 of the High
    Court of Judicature of Andhra Pradesh at Hyderabad in
    Criminal Appeal No. 368 of 2003.
8
                                  WITH
    Crl. A. No. 455 of 2009.

        V. Sridhar Reddy, V.N. Raghupathy for the Appellants.
c       Mayur R. Shah, Suchitra, Amit Nain, Savita M.B. Shivudu,
    D. Mahesh Babu for the Respondent.

        The Judgment of the Court was delivered by

D      P. SATHASIVAM, J. 1. These appeals are directed
  against the final judgments and orders dated 20.06.2007 and
  13.06.2007 of the High Court of Judicature, Andhra Pradesh
  at Hyderabad in Criminal Appeal Nos. 368 and 367 of 2003
  respectively whereby the High Court while setting aside the
E conviction and sentence of other accused, partly allowed the
  criminal appeals upholding the conviction of the appellants
  herein for the offences punishable under Sections 148 and 436
  of the Indian Penal Code, 1860 (in short 'the IPC') and reduced
  the sentence for the offence punishable under Section 436 of
F the IPC from 7 years to 3 years while maintaining the amount
  of fine and directed the appellants herein to surrender
  themselves before the trial Court in order to serve the remaining
  period of sentence.

        2. Brief facts:
G
       a) There were land disputes between two groups at
  Pedagarlapadu Village, Guntur District, Andhra Pradesh in
  respect of the lands belonging to the Temples which were
  leased out by the Endowments Department to the upper class
H people of the village and there was resentment in local dalits
 BUSI KOTESWARA RAO & ORS. v. STATE OF A.P. 1051
            [P. SATHASIVAM, J.]

for the same. One day, the agitators trespassed into the said         A
lands, in respect of which, Pinnam Peda Subbaiah-the
leaseholder filed a complaint which resulted into a deep seated
rivalry between the two groups.

     b) In order to take revenge, the other party attacked the        8
leaseholder to commit his murder. In retaliation;, on 14.04_ 1997,
the accused/appellants, formed an unlawful assembly, armed
with deadly weapons, raided the Harijan colony and set ablaze
around 50 dwelling houses of the prosecution party and abused
them in the name of their caste.
                                                                      c
    c) The Inspector of Police, Dachepalli took up the
investigation which culminated into registration of Crime Nos.
29 and 28 of 1997 and later, the case was transferred to the
Crime Investigation Department (CID). The Deputy
Superintendent of Police, CID, Vijayawada filed the charge            D
sheet against the accused persons for the offence punishable
under Sections 147, 148, 435, 436 read with Section 149 IPC
and Sections 3(1 )(v), 3(1 )(x), 3(2)(v) and 3(2)(iv) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (in short 'the SC & ST Act').                   E

      d) The cases were committed to the Court of Special
Sessions Judge, Guntur under the SC & ST Act and numbered
as S.C. Nos. 63/S/2000 and 62/S/2000. In both the cases, by
separate orders dated 24.03.2003, the Special Sessions
Judge found the appellants herein and others guilty for the           F
offence punishable under Sections 148 and 436 of the IPC
and convicted and sentenced each of them to suffer RI for one
year and to pay a fine of Rs.2000/- each, in default, to further
undergo simple imprisonment (SI) for one month for the offence
punishable under Section 148 IPC and further sentenced each           G
of them to suffer RI for 7 years and to pay a fine of Rs.10,000/
-, in default, to further undergo SI for two months for the offence
punishable under Section 436 IPC read with Section 149 IPC.

     e) Aggrieved by the said order of conviction and sentence,       H
    1052    SUPREME COURT REPORTS                [2012] 9 S.C.R.


A the two appeals being Criminal Appeal Nos. 368 and 367 of
  2003 were filed before the High Court.

        f) By impugned order dated 20.06.2007 in Criminal appeal
  No. 368 of 2003 and order dated 13.06.2007 in Criminal
B Appeal No. 367 of 2003, the High Court, partly allowed the
  appeals and while setting aside the conviction and sentence
  of other accused, upheld the conviction of the appellants herein
  for the offences punishable under Sections 148 and 436 IPC
  but reduced the sentence for the offence punishable under
C Section 436 IPC from 7 years to 3 years while maintaining the
  amount of fine.

       g) Aggrieved by the said order, Busi Koteswara Rao (A-
  1), Pinnam Nageswara Rao (A-4) and Busa Mattayya (A-30)
  have filed Criminal Appeal No. 454 of 2009 and Busi
D Koteswara Rao (A-1), Katakam Pedda Biksham (A-11),
  Katakam China Biksham (A-12), Busa Mattayya (A-13), Busa
  Kotaiah (A-14), Pinnam Rangaiah (A-15), Pinnam Sankar (A-
  17), Pinnam Nageswara Rao (A-19), Boosa Srinu (A-21),
  Marasu Venkata Swamy (A-22), Pinnam Ramana (A-24) and
E Pinnam China Subbayya A-25 have filed Criminal Appeal No.
  455 of 2009 before this Court by way of special leave.

        3. Heard Mr. V. Sridhar Reddy, learned counsel for the
  appellants/accused and Mr. Mayur R. Shah, learned counsel
F for the respondent-State.

       4. In the case on hand, total 79 persons were
  chargesheeted for various offences under IPC including
  Sections 147, 148 and Section 436. Though the prosecution
  has examined 52 witnesses and exhibited 12 documents in
G support of their case, among those witnesses, PWs 1-42 alone
  were cited as the eye-witnesses to the occurrence. Due to the
  arson and violence that had happened on 14.04.1997 between
  two groups of the same village, about 50 dwelling houses
  reduced into ashes. PWs 2, 4-15, 18, 20, 22, 23 and 26-41
H did not support the case of the prosecution and were declared
 BUSI KOTESWARA RAO & ORS. v. STATE OF A.P. 1053
            [P. SATHASIVAM, J.]

hostile witnesses. On the other hand, PWs 1, 3, 16, 17, 19,           A
21, 24, 25 and 42 supported the version of the prosecution.

     5. According to the prosecution, there was a friction
amongst the two groups of the same village. The prosecution
party belongs to Telugu Desam Party and the accused Party             B
belongs to Congress (1). It is also projected by the prosecution
that apart from the political rivalry, there is also serious enmity
between the parties in respect of lease of temple lands. There
is no dispute that the incident occurred on 14.04.1997 was a
group clash between two rivalries. In such type of incidents, an      C
onerous duty is cast upon the criminal courts to ensure that no
innocent is convicted and deprived of his liberties. At the same
time, in the case of group clashes and organized crimes,
persons behind the scene executing the crime, should not be
allowed to go scot-free. In other words, in cases involving a
number of accused persons, a balanced approach by the court           D
is required to be insisted upon. In a series of decisions, this
Court has held that in cases of arson and murder where large
number of people are accused of committing crime, the courts
should be cautious to rely upon the testimony of witnesses
speaking generally without specific reference to the accused          E
or the specific role played by them.

     6. Even, as early as in 1965, a larger Bench of this Court
in Masalti & Ors. vs. The State of Uttar Pradesh, AIR 1965
SC 202 considered about how the prosecution case is to be             F
believed. The principles laid down in para 16 of the decision
are relevant which is as under:-

    "16. Mr Sawhney also urged that the test applied by the
    High Court in convicting the appellants is mechanical. He
    argues that under the Indian Evidence Act, trustworthy            G
    evidence given by a single witness would be enough to
    convict an accused person, whereas evidence given by
    half a dozen witnesses which is not trustworthy would not
    be enough to sustain the conviction. That, no doubt is true;
    but where a criminal court has to deal with evidence              H
    1054     SUPREME COURT REPORTS                  [2012] 9 S.C.R.

A       pertaining to the commission of an offence involving a
        large number of offenders and a large number of victims,
        it is usual to adopt the test that the conviction could be
        sustained only if it is supported by two or three or more
        witnesses who give a consistent account of the incident.
B       In a sense, the test may be described as mechanical; but
        it is difficult to see how it can be treated as irrational or
        unreasonable. Therefore, we do not think any grievance
        can be made by the appellants against the adoption of this
        test. If at all the prosecution may be entitled to say that the
c       seven accused persons were acquitted because their
        cases did not satisfy the mechanical test of four witnesses,
        and if the said test had not been applied, they might as
        well have been convicted. It is, no doubt, the quality of the
        evidence that matters and not the number of witnesses who
        give such evidence. But sometimes it is usefu: to adopt a
D
        test like the one which the High Court has adopted in
        dealing with the present case."

       7. It is clear that when a criminal court has to deal with
  evidence pertaining to the commission of an offence involving
E a large number of offenders and a large number of victims, the
  normal test is that the conviction could be sustained only if it
  is supported by two or more witnesses who give a consistent
  account of the incident in question.

F      8. No doubt, in State of U.P. vs. Dan Singh and Others
  (1997) 3 SCC 747, a Bench of two-Judges, in para 48 has
  held that "...... it would be safe if only those of the respondents
  should be held to be the members of the unlawful assembly
  who have been specifically identified by at least 4 eye-
G witnesses .... "
        9. We have already quoted the requirements for convicting
  an accused in a clash between two groups as per Masalti
  (supra) which is a larger Bench decision of this Court. In the
  light of the same, we reiterate and hold that when an unlawful
H assembly or a large number of persons take part in arson or
 BUSI KOTESWARA RAO & ORS. v. STATE OF A.P. 1055
            [P. SATHASIVAM, J.]

in a clash between two groups, in order to convict a person,       A
at least two prosecution witnesses have to support and identify
the role and involvement of the persons concerned.

     10. With the above background, let us consider whether
the impugned order of the High Court convicting A-1, A-4 and
                                                                   8
A-30 in Criminal Appeal No. 454 of 2009 and A-1, A-11, A-
12, A-13 to A-15, A-17, A-19, A-21, A-22, A-24 and A-25 in
Criminal Appeal No. 455 of 2009 is sustainable.

      11. We were taken through the statements of witnesses
who supported the case of the prosecution. We also perused         C
all the relevant documents and connected papers. As discussed
by the High Court, PWs 1-21 spoke about the participation of
A-1 and A-38 whereas PWs 3 and 42 narrated with regard to
the participation of A-4 and PWs 16 and 17 described about
the participation of A-30. In the same way, the participation of   D
the above mentioned 12 accused persons in Criminal Appeal
No. 455 of 2009 has been spoken to by two or more witnesses.

     12. By applying the principles laid down in Masalti (supra)
and as reiterated by us in the above paragraphs, inasmuch as       E
at least two prosecution witnesses have spoken to about the
involvement and the role played by the above accused persons,
we have no reason to differ with the decision arrived by the
High Court. It is clear from the statements made by the
witnesses on the side of the prosecution that th·e appellants/
accused came in a mob and set ablaze around 50 dwelling            F
houses and reduced them into ashes and the same were
identified and their involvement is established by the reliable
prosecution witnesses beyond reasonable doubt which cannot
be disturbed. On the other hand, we fully endorse the view and
the ultimate decision arrived by the High Court.                   G

     13. Coming to the sentence, the prosecution has
established the offence under Sections 148 and 436 of IPC.
Insofar as the appellants are concerned, though the trial Court
has awarded 7 years of imprisonment, the High Court reduced        H
    1056    SUPREME COURT REPORTS                  [2012] 9 S.C.R.

A the same to 3 years while maintaining the fine amount. In fact,
  Section 436 IPC enables the court to award punishment with
  imprisonment for life or with imprisonment of either description
  for a term which may extend to 10 years in addition to the fine.
  We have already noted that the dwelling houses of PWs 1-42
B were set on fire and reduced into ashes by the above
  appellants/accused and the same have been duly established
  by the prosecution beyond reasonable doubt. Taking note of
  the sentence prescribed under Section 436 of IPC, we are of
  the view that even the reduction of sentence by the High Court
c is not warranted, however, in the absence of appeal by the
  State, we are not inclined to disturb the same.

        14. In the light of the above discussion, both the appeals
  are dismissed. In view of the fact that this Court on 06.03.2009
  enlarged all the appellants on bail, if any portion of the sentence
D is left out, they are directed to surrender within a period of 2
  weeks from today to undergo the remaining sentence.
   B.B.B.                                      Appeals dismissed.