CHAKALI MADDILETY & ORS.versusSTATE OF ANDHRA PRADESH

                   [2010] 10 S.C.R. 77


              CHAKALI MADDILETY & ORS.                       A
                            v.
             STATE OF ANDHRA PRADESH
             (Criminal Appeal No. 25 of 2007)
                    AUGUST 16, 2010
                                                             B
    [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.)

     Penal Code 1860 - ss. 302 and 148 - Murder and rioting
armed with deadly weapons - Conviction and sentence under,
by courts below - Interference with - Held: Not called for - C
FIR was lodged most promptly and all accused persons were
named - Consistent evidence of eye witnesses that accused
were armed with daggers and knives and they encircled the
deceased and caused ·him injuries - Said version
corroborated .by medical evidence -Depositions of close D
relative relevant - It cannot be discarded merely because
they are relatives - Also prosecution case cannot be
discarded on the ground of non-examination of independent
witnesses of the locality -Acquittal of two persons since there
was no evidence of deceased being hit by stone or stick - E
Evidence - Witnesses - Constitution of India, 1950 - Article
13a                         '

     According to the prosecution case, 'HN' and the
accused were on inimical terms. On the fateful day, A1,
A3, AS, AS and A7 armed with daggers and A2 armed with F
stick surrounded 'HN' and his son 'HR'. A1 stabbed 'HN'
with the dagger causing injuries. Thereafter, they took the
deceased in the injured condition near the mosque and
caused him serious injuries. PW-3, PW-4 and PW-S
reached the place of occurrence after hearing the cries G
of PW-1, the son, and PW-2, the wife, of the victim. The
accused then fled away. 'HN' later succumbed to his
injuries. The trial court convicted A1, A3, AS, AS and A7

                            77                               H
    78       SUPREME COURT REPORTS          [2010) 10 S.C.R.


A  of offence punishable u/s 302 IPC and sentenced them
   to life imprisonment and a fine of Rs.1,000/- each. They
   were also convicted u/s. 148 IPC and sentenced to one
   year RI and fine of Rs.SOO/- each. Both the sentences were
   directed to run concurrently. A2 and A4 were acquitted
B of all the charges. The High Court upheld the order .
 . Hence, the appellant filed the instant appeal.

         Dismissing the appeal, the Court

      HELD: 1.1 The FIR was lodged promptly within a
C period of 2 % hours, though, the distance between the
  place of occurrence and the police station was about 1S
  kms. All the appellants had been named in the FIR. As per
  the post mortem report, 13 ante-mortem injuries were
  founcl on the body of the dece;~sed. As per the medical
D evidence, the cause of death was shock and hemorrhage
  due to multiple injuries. [Para _8] [83-C; 84-E]

       1.2 An earlier incident had occurred on 4.11.1998
  between the deceased and A1 and AS, thus the deceased
E was inimical to them. PW-3, PW-4 and PWS came to the
  spot after hearing the hue and cry made by PW-1 and
  PW-2 thus, they could not be eye-witnesses of the actual
  incident. Therefore, the trial court brushed aside their
  depositions. PW-6 and PW-7 who were the witnesses of
  inquest on the dead body, were deCtared hostile and,
F therefore, they did not support the case of the
  prosecution. The trial court came to the conclusion that
  in spite of the fact that PW-1 and PW-2 were family
  members of the deceased and a dispute had arisen on
  4.11.1998, few days before the incident, between the
G deceased and A1 and AS though there may be a
  possibility to enrope some persons falsely, the question
  of leaving the real culprits for causing the death of the
  deceased out of the FIR could not arise. All the persons
  involved in the case were from the same village. There
H was no contradiction in the version in the FIR and the
CHAKALI MADDILETY & ORS. v. STATE OF ANDHRA 79
                 PRADESH
statement u/s. 161 Cr.P.C. 1973, of PW-1 and PW-2 and A
the case also stood corroborated by the medical
evidence. However, the trial court rightly acquitted A2 and
A4 in view of the fact that there was no evidence of the
deceased being hit by stone and stick. [Para 9] [84-F-H;
 85-A-C]                                                    B

    1.3 The depositions of close relatives cannot be
discarded merely because they are relatives, but their
evidence has to be considered with due care and caution.
In a case like this, independent witnesses may not come C
forward to depose, as out of fear, people prefer to run
away from the place of occurrence and avoid witnessing
the crime, but that does not mean that the case can be
discarded only on the ground of non-examination of
independent witnesses of the locality. [Para 9] [85-0-E]
                                                               D
      1.4 The evidence of PW-1 and PW-2 had been
 consistent that the accused were armed with daggers
 and knives. They encircled the deceased and PW-1 and
 caused injuries to the deceased. Their version stands
 fully corroborated by the medical evidence. Thus, the case    E
 to the extent that the appellants stabbed the deceased
 with dagger and knife stood proved. There is no cogent
 reason to interfere with the concurrent findings of fact on
  this issue. The case does not warrant any review of the
  judgments and orders of the courts below. [Paras 12 and      F
  13] [87 -D-G]

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
 No. 25 of 2007.

     From the Judgment & Order dated 09.03.2004 of the High G
 Court of Judicature Andhra Pradesh at Hyderabad in Criminal
 Appeal No. 289 of 2002.

     R. Sundaravaradan, S.J. Aristottle, Prabhu
  Ramasubrmanian, V. G. Pragasam for the Appellants.
                                                               H
    80       SUPREME COURT REPORTS            [2010] 10 S.C.R.


A       Anoop G. Choudhari, Narada Das (for C.K. Sucharita) for
    the Respondent.

         The Judgment of the Court was delivered by
         DR. B.S. CHAUHAN, J. 1. This appeal has been
B   preferred against the judgment and order of the High Court of
    Andhra Pradesh at Hyderabad, dated 9.3.2004, by which it has
    dismissed Criminal Appeal No. 289 of 2002, affirming the
    judgment and order dated 12.2.2002 passed by the Sessions
    Court, Kurnool in Sessions Case No. 830/1999, convicting the
C   appellants under Sections 302 and 148 of the Indian Penal
    Code, 1860 (hereinafter called as "IPC") and sentencing them
    to undergo life imprisonment and one year R.I. respectively.
        2. Facts and circumstances giving rise to this appeal are
  that accused (A 1 to A7) and Harijana Ayyanna (hereinafter
D called as "deceased") were residents of village G. Singavaram.
  On 8.2.1999 at about 7.30 PM, the deceased along with his
  wife Harijana Ayyamma (PW.2) and son, Harijana Ramakrishna
  (PW.1) went to the clinic of Dr. Ramana for treatment of Harijana
  Ayyamma (PW.2) and while they were coming back and
E reached near the house of Anjaneya Goud at about 8.00 p.m.,
  accused (A 1 to A 7) suddenly appeared on the spot. A 1, A3,
  AS, A6 and A7 were armed with daggers and A2 was armed
  with a stick. They surrounded the deceased and his son
  Harijana Ramakrishna (PW.1 ). A 1 abused the deceased and
F stabbed on his back with a dagger causing injuries and then
  A2 to A7 carried the deceased towards the mosque and threw
  him on the road near it. A 1, A3, AS, A6 and A7 stabbed the
  deceased on his chest, stomach and back with daggers. A2
  beat the deceased with a stick and A4 caused injury on his
G head with a stone. Harijana Ramakrishna (PW.1) and Harijana
  Ayyamma (PW.2) made hue and cry as a result of which
   Harijana Sekhar (PW.3), P. Muniswamy (PW.4) and A. Samuel
   (PW.S) reached the place of occurrence and all the accused
  fled away from there. PWs. 1 to S took the deceased in a
H vehicle to the Government Hospital, Kurnool, however, he .
 CHAKALI MADDILETY & ORS. v. STATE OF ANDHRA 81
        PRADESH [DR. B.S. CHAUHAN, J.]
  succumbed to the injuries at about 9.30 p.m. Harijana A
  Ramakrishna (PW.1 ), son of the deceased filed the F.l.R. (Ext.
  P-1) in Kurnool Taluk Police station and Crime No.16 of 1999
  was registered. T.Naganna (PW.9}, the Investigating Officer
  drew up the panchanama of the scene of offence and held an
  inquest on the dead body at the hospital in presen<;:e of B
  witnesses Molakapogu Daveedu (PW.6) and Molakapogu
  Harijana Pakkiranl"\a (PW.7) and the dead body was sent for
  post mortem. In the post mortem report, Dr. LC. Obulesu
  (PW.10) found 13 ante-mortem injuries on the body of the .
  deceased. After completing the investigation, T. Naganna c
· (PW.9) filed the charge sheet against the accused persons and
  they were put to trial.
      3. The learned Sessions Judge, Kumool, after conclusion
 of the trial, found A 1, A3, AS, A6 and A7 guilty of offences
 punishable under Sections 148 and 302 IPC. They were              D
 sentenced to life imprisonment and a fine of Rs.1,000/- each
 for an· offence punishable under Section 302 IPC and one year
 RI and fine of Rs.500/- each for an offence punishable under
 Section 148 IPC. However, both the sentences were directed
 to run concurrently. The Court acquitted A2 and A4 of all the     E
 charges.
     4. Being aggrieved, the appellants preferred Criminal
 Appeal No.289 of 2002 before the High Court, which has been
 dismissed vide impugned judgment and order dated 9.3.2004.
                                                                   F
 Hence, this appeal.
     5. Shri R. Sundaravaradan, learned senior counsel
 appearing for the appellants, has submitted that in view of the
 evidence of alleged eye-witnesses, namely, Harijana
 Ramakrishna (PW.1) and Harijana Ayyamma (PW.2), two               G
 accused namely, Chakali Krishna (A2) and Chakali
 Sreenivasulu (A4) had been acquitted by the Trial Court.
 Harijana Sekhar (PW.3) and Muniswamy (PW.4) and A.
 Samuel (PW.5) had been disbelieved by the Trial Court.
 Molakapogu Daveedu (PW.6) and Molakapogu Harijana                 H
    82       SUPREME COURT REPORTS               [2010] 10 S.C.R.


A Pakkiranna (PW.7) turned hostile and did not support the
  prosecution. In fact, A2 and A4 had caused fatal injury No.1 on
  the head. In such a fact-situation there was no occasion for the
  courts below to convict the appellants. More so, it is nobody's
  case that all the accused persons came with deadly weapons.
B Therefore, the question of application of the provisions of
  Section 148 IPC could not arise. The entire incident occurred
  in two parts. First, the deceased was hit near the house of
  Anjaneya Goud and a second time, when as alleged, the
  appellants caused serious injuries after taking the deceased
c in injured condition near the mosque. In case there is no
  evidence that all the appellants were armed with weapons at
  the time of the first part of the incident, in absence of any
  evidence that they had been supplied the arms by somebody
  else in between, question of causing serious injuries in the
0 second part stands falsified. Had the incident been as alleged
  by the prosecution, at least, Harijana Ramakrishna (PW.1 ), son
  of t.he deceased, as he was 24 years of (lge, could have
  intervened and made attempt to protect his father. The incident
  occurred in a residential area, no independent witness was
  examined. All these factors have not been considered by the
E courts below in correct perspective. Therefore, the appeal
  deserves to be allowed.
       6. On the contrary, Shri Anoop G. Choudhari, learned
  senior counsel appearing for the State, has submitted that two
F courts have recorded concurrent findings of fact. The Trial Court
  had an opportunity to examine the demeanour of the witnesses
  and assess their credibility. The Trial Court, after assessing the 1
  evidence on record, reached the conclusion that A2 and A4
  had falsely been enroped in the crime. Therefore, they had been
G acquitted. However, on the basis of the depositions of Harijana
  Ramakrishna (PW.1) and Harijana Ayyamma (PW.2) the
  appellants have been convicted and the High Court has affirmed
  their conviction. The findings offact as recorded by the courts
  below cannot be held to be so perverse .as lo warrant
H interference by this Court. Had Harijana Ramakrishna (PW.1 ),
CHAKALI MADDILETY & ORS. v. STATE OF ANDHRA                   83
       PRADESH [DR. B.S. CHAUHAN, J.]
the son of the deceased tried to intervene and protect the          A
deceased, there was a possibility of receiving grievous injuries
or he could have also faced death at the hands of the
appellants. The FIR has been lodged promptly. Appellants were
known to the complainant. They had been named in the FIR. In
such a fact-situation, appeal lacks merit and is liable to be       B
dismissed.
     7. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
    8. Admittedly, FIR was lodged promptly within a period of       c
2 Y2 hours, though, the distance between the place of
occurrence and the police station was about 15 kms. All the
appellants had been named therein. As per the post mortem
report, following 13 ante-mortem injuries were found on the
dead body of the deceased:-                                         D
     "1. Lacerated wound on right side head, back part of
     parietal area. Obliquely placed 7 x 1 Y2 ems x scalp layer
     deep with a fracture of left parietal bone 13 ems in width,
     contusion of brain with fracture of base of skull in mid
     cranial fossa 12 ems in length.                                E
     2. Incised wound on right eye-brow 4 x 1 ems x bone deep.
     3. Stab wound on front of right side chest right nipple.
     Oblique, 4 Y2 x 1 Y2 ems x chest cavity deep cutting the
     4th rib.                                                       F
     4. Stab wound on left side chest below left nipple obliquely
     4 Y2 x 1 Y2 ems x chest cavity depth cutting ribs 4th and
     5th.
     5. Stab wound on front of right upper abdomen outer part       G
     4 x 1 Y2 ems x abdomen deep, cutting the intestines.
     6. Stab wound on front of left side abdomen, near the
     midline, oblique, 4 Y2 x 1 Y2 ems x abdomen cavity deep,
     cutting the liver.
                                                                    H
    84       SUPREME COURT REPORTS               [2010] 10 S.C.R.


A        7.   Incised wound on back of left upper are near the
         shoulder 4 x 1 % ems x 3 ems muscle deep.
         8.    Abrasion with contusion on the back of left elbow and
         fore-arm 6 x 4 ems red in colour.

B        9.    Incised would on outer part of left leg near the knee
         4 x 1 % ems x bone deep.

         10. A stab wound on upper part of right buttock 4 % x 1
         % x 5 ems muscle deep.

c        11. A stab wound on the back of chest upper part, near
         the spine upper thoracic 4 % x 1 % ems x vertebra deep.

         12. Stab injuries 4 in number on the back of middle of
         chest 2 on right side of thoracic spine, 2 on left side
         measuring 4 x 1% ems, 4 % x 1 ems, 4 % x 1 % ems, 4 %
D        x 1 ems chest, cavity deep.\
         13. Stab wound on back left side chest lower and outer
         part obliquely 4 % x .1 % ems x chest cavity the ribs and
         injured the left side lung tissues.
E       As per the medical evidence the cause of death was
    shock and hemorrhage due to multiple injuries.

       9. The Trial Court, after appreciating the evidence on
  record, came to the conclusion that the FIR had been lodged
F most promptly and all the appellants were named therein. An
  earlier incident had occurred on 4.11.1998 between the
  deceased and A1 & AS, thus the deceased was inimical to
  them. Harijana Sekhar (PW.3}, Muniswamy (PW.4) and
  A.Samuel (PW.5) came to the spot after hearing the. hue and
G cry made by Harijana Ramakrishna (PW.1) and Harijana
  Ayyamma (PW.2), thus they could not be eye-witnesses of the
  actual incident. Therefore, the Trial Court brushed aside their
  depositions. Molakapogu Daveedu (PW.6) and Molakapogu
  Harijana Pakkiranna (PW.7), who were the witnesses of inquest
H on the dead body, were declared hostile and, therefore, they
CHAKALI MADDILETY & ORS. v. STATE OF ANDHRA 85
       PRADESH [DR. B.S. CHAUHAN, J.]
did not support the case of the prosecution. The Trial Court A
came to the conclusion that in spite of the fact that Harijana .
Ramakrishna (PW.1) and Harijana Ayyamma (PW.2) were
family members of the deceased and a dispute had arisen on
4.11.1998, few days before the incident, between the deceased
and Chakali Maddilety (A 1) and Chakali Lakshmanna (A5), 8
though there may be a possibility to enrope some persons
falsely, the question of leaving the real culprits for causing the
death of the deceased out of the FIR could not arise. All the
persons involved in the case were from the same village. There
was no contradiction in the version in the FIR and the statement C
under Section 161 of Code of Criminal Procedure, 1973, of
PW.1 and PW.2 and the case also stood corroborated by the
medical evidence. Therefore, the Trial Court acquitted Chakali
Krishna (A2) and Chakali Sreenivasulu (A4) in view of the fact
that there was no evidence of the deceased being hit by stone
and stick. The depositions of close relatives cannot be D
discarded merely because they are r~latives, but their evidence
has to be considered with due care and caution. In a case like
this, independent witnesses may not come forward to depose,
as out of fear, people prefer to run away from the place of
occurrence and avoid witnessing the crime, but that does not E
mean that the case can be discarded only on the ground of non-
examination of independent witnesses of the locality.

    10. The Trial Court considered the application of Section
148 IPC elaborately and held:                                    F
    "With regard to participation of A1, A3, A5 to A7, PW1,
    PW2 who are the eye witness who actually witnessed the
    incident specifically stated that A1 and A3, A5 to A7,
    formed into an unlawful assembly to commit rioting and A 1
    stabbed Ayyanna on his back with a dagger at first place     G
    of occurrence itself. The medical evidence of PW10 who
    conducted P.M. examination over the dead body of
    deceased also shows that he found an incised wound on
    the back of left upper arm near the shoulder 4 x 1 Yi ems
    muscle deep in size under injury No. 1. So, the injury No.   H
    86        SUPREME COURT REPORTS                  [2010] 10 S.C.R.


A          7 mentioned in Ex. P14 P.M.report is the injury said to
           have caused on the back of deceased by A 1 with dagger.
           Therefore, the medical evidence is totally corroborating the
           ocular testimony PW1, PW2 with regard to stab injury
           caused on the back of deceased by A 1 in front of the house
B          of Ediga Anjhaneyulu Goud. In Ex.P1 complaint also, PW1/
           complainant specifically mentioned, that A 1 stabbed the
           deceased on back with a dagger pushing him aside and
           his mother (PW2) aside. Therefore, basing on the
           consistent evidence of PW1, PW2 coupled with medical
           evidence of PW10 and Ex. P14 it can safely be held that
c          A1, A3, A5 to A7 formed into an unlawful assembly to
           commit rioting against Ayyanna, in prosecution ofcommon
           object, A 1 stabbed Ayyanna (deceased) thereby A 1, A3,
           A5 to A7 committed the offence punishable under Sec .
         . 148 of IPC. Accordingly, they are liable to be convicted.
D
         Regarding 2nd incident of murderous assault against
         Ayyanna (deceased) PW1, PW2 specifically deposed that
         all the accused stabbed Ayyanna (deceased)
         indiscriminately. In such case, it is very difficult to attribute
E        any specific overt acts against any of the accused. The
         overt acts theory cannot be applied, when more number
         of persons stabbed a single individual indiscriminately. The
         medical evidence under Ex.P14 and oral evidence of
         PW10 also lending support to the ocular testimony of
         PW1, PW2. The P.M. Doctor PW10 found as many as 13
F
         injuries, out of the said injuries, injury No. 2 to 7 and 9 to
         13 are stab and incised wound with similar measurements.
         Therefore, all the above injuries 2 to 7 and 9 to 13 could
         have been caused with same type of weapon and said fact
         was spoken by PW10 in his evidence."
G
    Thus, the case to the extent that the appellants stabbed the
    deceased with dagger and knife stood proved.
         11. The High Court considered the issue of application of
    Section 148 IPC and observed:
H
        CHAKALI MADDILETY & ORS. v. STATE OF                   87
       ANDHRA PRADESH [DR. B.S. CHAUHAN, J.]
       "The first.issue that arises for consideration is whether the A
       offence under Section 148 IPC is made out against the
       accused. The evidence of PWs. 1 and 2 clearly establishes
       that the accused, who were in inimical terms with the
       deceased and PW.1, were all at the scene on the night of
       the incident and they have virtually encircled them duly B
       armed with daggers and stick. It is also the evidence of
       PWs 1 and 2 in categorical terms that the accused even
       gave blow with the daggers on the back of the deceased
       and thereafter they lifted the deceased bodily and took him
       near the mosque by which time on account of the cries of     c
       PWs. 1 and 2, PWs. 3 to 5 came at the scene. Under those
       circumstances the finding of the learned 1st Additional
       District and Sessions Judge, Kurnool that the offence under
       Section 148 IPC established, cannot be found fault with."
      12. We have been taken through the evidence of Harijana D
Ramakrishna (PW.1) and Harijana Ayyamma (PW.2) and they
had been consistent that the accused were armed with daggers
and knives. They encircled the deceased and Harijana
Ramakrishna (PW.1) and caused injuries to the deceased. Their
version stands fully corroborated by the medical .evidence. Thus, E
we do not find any cogent reason to interfere with the concurrent
findings of fact on this issue. The Submission made by Shri
Sundaravaradan, learned senior counsel, has no merit and thus
not worth acceptance.
      On other issues both the courts below have considered the     F
submissions made by the defence and rejected them. We are
in full agreement with the said findings of fact.
     13. In view of the above, we are of the considered opinion
that the present case does not warrant any review of the G
judgments and orders of the courts below. The appeal lacks
merit and is accordingly dismissed.

N.J.                                          Appeal dismissed.
                                                                    H