SABBI MALLESU AND ORS.versusSTATE OF ANDHRA PRADESH

A                          SABBI MALLESU AND ORS.
                                      v.
                          STATE OF ANDHRA PRADESH

                                   JULY 12. 2006

B                  [S.B. SINHA AND DAL VEER BHANDARI, JJ.]


          Code of Criminal Procedure. 1973:

         Section 246-Alteration of charge-Duty of Trial Court-Held: Trial
C Court ought to draw it to the notice of accused and also explain the same
    to him.

          Section 154-F!R need not contain all the details but in a case where
    large number of persons are involved. complainant alleging injury must
D   disclose the name of accused ll'ho caused injwy and overt act committed by
    accused--Statement of eye-witnesses as to role played by appellams I and
    2 having found corroboration ji-om medical evidence, conviction against
    them is sustained-As no overt acts are alleged against appellants 3 and 4,
    they are entitled to benefit of doubt-Penal Code, 1860-Sections 302, 147,
    149.
E
          Judgment cannot be given in slipshod manner-Court must duly
    consider all contentions raised by parties.

           Prosecution's case was that there was a dispute over a Bund between
    deceased No.2 and appellant No.2. Allegedly, with a view to settle the dispute,
F   many persons came to the place of occurrence. Appellant No. I attacked
    deceased No. I with a stout stick on his head and others also attacked deceased
    no. I and 2 with sticks and stones. Prosecution filed a case against 39 persons
    including 15 who were named in the FIR lodged by PWI. PWI had claimed
    that he was also injured. PW2 and PW3 were other eye witnesses. The
G   Sessions Judge convicted 6 persons including appellants under Sections 302/
    149 IPC though the charge sheet was under Sections 302/147 IPC. On appeal,
    High Court convicted only the appellants and others were acquitted.

          In appeal to this Court, appellants contended that apart from general
    allegation no specific overt act was attributed to any of the appellants; that

H                                        490
                  SABBI MALLESUv. STATE OF ANDHRA PRADESH                         491

    although in the First Information Report, appellant No.2 was alleged to have          A
    caused injury to deceased No.I but he was acquitted of the said charge and
    purportedly was convicted only for causing injury to deceased No.2.

          Partly allowing the appeal of the accused and dismissing the appeal of
    the State, the Court
                                                                                          B
          HELD: I.I. The High Court had dismissed the appeal filed by the
    appellants in a very slipshod manner. As appellants had raised a number of
    contentions before the High Court, it ought to have dealt with each one of
    them. Unfortunately, both the Sessions Judge as also the High Court failed to
    attach due importance to the fact that in the First Information Report, PW-I          C
    did not disclose any overt acts played by the other accused persons apart from
    appellant Nos. l and 2. PW-I was himself injured in the occurrence and,
    therefore, it was expected of him at least to state as to who amongst accused
    caused the said injury. Even injury on his person was not proved. No overt act
    against any person was at all attributed in regard to the death of deceased no.
    2. (495-G-H; 496-A-B(                                                                 D
          1.2. The Sessions Judge as also the High Court failed to notice that in
    a case of this nature where a large number of people allegedly took part in
    commission of an offence, chance of some by-standers being falsely implicated
    therein cannot be ruled out. (496-B-CI
                                                                                          E
          2. The First Information Report need not contain all the details but in
    a case of this nature it is expected that incident would be narrated in some
    details as otherwise it will be difficult for the Trial Judge to find out the truth
    pa11icularly having regard to the fact that both P.W.l and P.W.2 made omnibus
    statements. It is beyond any cavil that in his deposition before the Court, P.W.
    I made improvements. He not only attributed overt acts to those who were              F
    allegedly responsible for causing death of deceased No. l but also who had
    allegedly caused the death of deceased No. 2. If he was an eye-witness and had
    seen the entire occurrence from a close proximity and indeed suffered an
    injury himself, there is no reason as to why the First Information Report would
    lack the details of the offence involving all the accused persons. The appellants     G
    3 and 4 are entitled to be given benefit of doubt as no overt act had been
    attributed as against them. (496-C-E; 497-A(
y

          3. The power of the Court to alter the charges is neither in doubt or in
    dispute but in terms of Sub-section 2 of Section 246 Cr.P.C., it was obligatory
    on the part of the Sessions Judge to bring it to the notice of the accused and        H
    492                     SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A explain the same to the accused. The same having not been done, it cannot be
    said that the requirements of Section 246 stood complied with. It must also
    be borne in mind that all the accused were acquitted for commission of an
    offence under Section 147 of the Penal Code. The High Court did not find
    any common object on the part of all the accused so as to make themselves
    liable to be convicted for commission of an offence under Sections 302/149
B   IPC. It must be borne in mind that in a case of this nature, where a large
    number of persons are made accused, the possibility of some accused persons
    committing murder at the spur of the moment cannot also be ruled out.
                                                                      (497-B-DI

C         4. The names of appellant Nos. 1 and 2 only having been mentioned in
    the First Information Report and the statements of P.W.1 and P.W.2 in relation
    to the role played by them having found corroboration from the medical
    evidence, the judgment of conviction and sentence as against them must be
    sustained. (497-E(

D           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 784 of
    2004.

         From the Judgment and Order dated 18.2.2003 of the High Court of
    Andhra Pradesh at Hyderabad in Criminal Appeal No. 1597/2000.

E                                        WITH

            Crl.A. No. 773/2006. (Arising out of SLP (Cr!.) No. 4438/2004).

            Y. Raja Gopala Rao and Y. Ramesh for the Appellants.

F           P. Vinay Kumar and D. Bharathi Reddy for the Respondent

            The Judgment of the Court was delivered by

            S.B. SINHA, J. Delay in filing Special leave petition is condoned.

            Leave granted in special leave petition.
G
          These two appeals arising out of a common judgment and order dated
    18.2.2003 passed by the High Court of Andhra Pradesh were heard together
    and are being disposed of by this judgment.

            One Kota Prasadarao who examined himself as PW- I before the trial
H
        SABB! MALLESU v. STATE OF ANDHRA PRADESH [SINHA, J.]               493

Court, lodged a First Information Report before the Station House Officer of      A
Hiramandalam Police Station alleging that a dispute had occurred between
Karanam Chandraiah and Vanjarapu Savariah in regard to a bund. Allegedly,
with a view to settle the dispute 15 persons named, therein, including the
appellants is Criminal Appeal No. 784/2004 and respondents in Criminal Appeal
arising out of SLP (Crl). No. 443812004, came to the place of occurrence and      B
accused No. 1-Sabbi Mallesu (Appellant No. I) beat Gade Sreeramlu (deceased
No. I) with stout stick on his hec.d. Accused No.4 (appellant No.2) is alleged
to have poked with spear on his jaw. A general statement was made to the
effect that the other accused persons beat him indiscriminately. Accused No.
16, Karanam Janardhanarao Pilla Ramula allegedly beat Kota Prasadarao, Kaji
Asirinaidu and some others with sticks and stones as a result one Karanam         C
Chandraiah (deceased No.2) as also Gade Sreeramulu.

      Although fifteen persons were named in the First Information Report,
39 persons were put on trial. They were charged under various Sections,
namely, Sections 147, 148,302,324,323,341,120B and 506(2) of the Indian Pennal
Code.                                                                             D
      It is not in dispute that in respect of Charge under Section 147 !PC, all
were acquitted. We would at this juncture like to reproduce charge No.2 and
3 which relate to the charges framed under Section 302 IPC against all the
accused persons.:
                                                                                  E
        Charge No. II:

            That you A. I to 19 and A.22 at about 7.00 a.m. near Dok Kulakhana
        on the road leading from Pindruvada were formed into an unlawful
        assembly armed with deadly weapons like spears, knives, sticks and
        Tentulu, with a common object to kill Gade Sreeramulu and Karanam         F
        Chandrayya (Deceased Nos. I and 2).

            And that you thereby committed an offence punishable under
        Section 148 IPC within the cognizance of the court of sessions.

       Charge No. III.                                                            G
           That you A. I to A.6, A. I 0, A.16 and A.19 at the same time and
        ~t the same date and place mentioned in charge No.II committed
       murder intentionally causing the death of Gade Sreeramulu (deceased
       No. I) that you A.2 and A.5 beat him with sticks that you A.4 spear
       on his jaw and that while the said deceased fell down that you A.3 -H
    494                    SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A          and A.6 inflicted a blow on the head with knife that you A. I0 caused
           injury with tentu on the head and that you A.16 and A.19 beat him
           with stout stick on his back.

               And that you thereby committed an offence punishable under
           Section 302 IPC within the cognizance of the Court of Sessions."
B
          The prosecution in support of its case examined three alleged eye
    witnesses. PW- I, as noticed hereinbefore was the first informant. PW-2,
    Karanam Lakshmanaro and PW-3, Karam Chinnammai were to be the eye
    witnesses.

C         The learned Sessions Judge as also the High Court did not place any
    reliance on the evidence of PW-3 It is not in dispute that no charge was
    framed as against the appellants herein under Section 302/149 IPC. The learned
    Sessions Judge, however, without altering the charge proceeded to convict
    the six accused persons under Sections 302/149 l.P.C.

D         Before proceeding further we may notice that apart from accused before
    us all other accused were acquitted of the charges. On an appeal preferred
    by them before the High Court, the respondents in Civil Appeal arising out
    of SLP (Cr!.) No. 4438/2004, Vanjarapu Boddu (accused No. J).and Duvva
    Simmayya (accused No.6) were directed to be acquitted following the logic
E   of the learned trial Judge stating:

               "It appears from the judgment of the trial Court that while giving
           evidence P. Ws. l and 2 had attributed overt acts to A-4 alleging that
           A-4 had caused injuries to D-1 by spearing him on the jaw. But such
           corresponding injury is absent in the post mortem examination and
F          therefore, A4 was given benefit. Apply the same logic, we are of the
           considered view that A-3 and A-6 were not given any role at the time
           of giving FIR by P. W. I Under these circumstances, we feel that it
           would not be safe to convict A-3 and A-6 and therefore, we are
           inclined to give benefit of doubt to A-3 and A-6."

G         The High Court, however, as was done by the learned Sessions Judge,
    relying on and on the basis of the evidence of the depositions of P. W.-1 and
    P. W. 2 dimissed the appeals referred by the appellants herein stating:           '
                "According to P. W. l and P. W.2., A-4 speared on the left cheek of
            the deceased and the corresponding injury was found at the time of
H           post morterm examination. But it appears that while delivering the
        SABB! MALLESUv. STATE OF ANDHRA PRADESH [SINHA,J.)                   495

        judgment, there was a little confusion in the mind of the trial Court       A
        and therefore, injury No. I was attributed to A-14 by the learned
        Judge. But in fact, A-14 caused injuries 2 and 3 as given in the post
        mortem examination. As far as A-8 is concerned, injury No. I should
        have been attributed to A-8. The injury, which is alleged to have been
        caused by A-8 finds place in the post mortem examination and his            B
        name also finds place in FIR given by P. W. I. The circumstances
        canvassed about the fabrication of F.l.R. are minor discrepancies.
        Therefore, as far as the death of D-2 is concerned, we hold that A-
        4, A-8 and A-14 are responsible for causing the death of D-2 after
        believing the reliable and trustworthy evidence of P. W. I and P. W. 2
        which is corroborated, by medical evidence as well as Ex.P. I."             C
        The learned counsel appearing on behalf of the appellants, inter-alia,
submitted that from a perusal of the First Information Report, lodged by PW-
 1, it would appear that overt acts were alleged also against appellant Nos. I
and 2 (accused Nos. I and 4). Our attention was further drawn to the fact in
regard to the deceased No. 2, apart from general allegation no specific overt       D
act was attributed to any of the appellants. It was further submitted that
although in the First Infonnation Report, the appellant No.2 (accused No. 4)
was alleged to have caused injury to deceased No. I but he was acquitted of
the said charge and purportedly was convicted only for causing injury to
deceased No.2.
                                                                                    E
       Learned counsel appearing for the State, on the other hand, not only
would support the judgment of the High Court but would also contend that
the High Court committed a manifest error in passing the Judgment of acqmttal
in respect of accused Nos. 3 and 6. Learned counsel appearing for the State
submitted that failure to frame charge under Sections, 302/149 l.P.C., is not p
fatal in asmuch as the learned trial Judge was entitled to alter the charge in
exercise of its jurisdiction under Section 46 of the Criminal Procedure Code.

     At the outset, we would like to observe that in a case of this nature,
the High Court should have considered the matter more closely. The High
Court dismissed the appeal filed by the appellants herein in a very slipshod        G
manner. As appellants had raised a number of contentions before the High
Court, it was expected of the High Court to deal with each one of them.

       Unfortunately, both the learned Sessions Judge as also the High Court
failed to attach due importance to the fact that in the First Infonnation Report,
PW-I did not disclose any overt acts played by the other accused persons            H
    496                    SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A apart from appellant Nos. 1 and 2 herein. If the statements of the said
    witnesses are to be believed, he was himself injured in the occurrence and,
    therefore, it was expected of him at least to state as to who amongst caused
    the said injury. Even injury on his person was not proved. We have noticed
    herein before that no overt act against any person was at all attributed in
B   regard to the death of Karanam Chandraiah.

          The learned Sessions Judge as also the High Court unfortunately failed
    to notice that in a case of this nature where a large number of people allegedly
    took part in commission of an offence, some by-standers' may being falsely
    implicated therein cannot be ruled out.
c       Submission of the learned counsel appearing on behalf of the State is
  that the First Information Report need not contain all the details may be
  correct but in a case of this nature it is expected that incident would be
  narrated in some details as otherwise it will be difficult for the trial Judge to
  find out the truth particularly having regard to the fact that both P. W. I and
D P. W. 2 made omnibus statements. It is beyond any cavil that in his deposition
  before the Court, P. W. 1 made improvements. He not only attributed overt acts
  to those who were alleegedly responsible for causing death of deceased No.
  I but also who had allegedly caused the death of deceased No. 2 If he was
  an eye witness and had seen the entire occurrence from a close proximity and
  indeed suffered an injury himself, we fail to understand as to why the First
E Information Report would lack the details of the offence involving all the
  accused persons.

          A part of the testimony of P. W. 2 had not been relied upon by the
    learned Sessions Judge. Even the High Court had noticed that the statements
F   of both P.W. I and P.W.-2 in relation to the overt act in respect of some of
    the accused persons did not find any corroboration from the medical evid~nce.
    On the said basis some of the accused persons have been given the benefit
    of doubt. Following the same logic the accused No.2 and accused No.6 were
    also acquitted by the High Court.

G         Having considered the materials on record and keeping in view the
    submissions made at the Bar, we are of the opinion that not only no case has,
    thus, been made out to interfere with the judgment of acquittal passed as
    against the respondents in Criminal Appeal arising out of SLP (Crl.) No. 4438/
    2004 but d!so the judgment of conviction and sentence passed against the
    appellants Nos. 3 and 4 in Cr!. Appeal No. 784/2004 herein are not sustainable
H
        SABB! MALLESU v. STA TE OF ANDHRA PRADESH [SINHA, J.]               497

as they are entitled to be given benefit of doubt as no overt act had been         A
attributed as against them. We are also not in a position to subscribe to the
submissions made by the learned counsel appearing on behalf of the State
that the trial Court in a case of this nature was entitled to alter the charge
under Section 246 of the Criminal Procedure Code.

      The power of the Court to alter the charges is neither in doubt nor in       B
dispute but in terms of Sub-section 2 of Section 246, Cr.P.C., it was obligatory
on the part of the learned Sessions Judge to bring it to the notice of the
accused and explain the same to the accused. The same having not been
done, it cannot be said that the requirements of Section 246 of the Criminal
Procedure Code stood complied with. It must also be borne in mind that all         C
the accused were acquitted for commission of an offence under Section 147
of the Indian Penal Code.

      The High Court did not find any common object on the part of all the
accused so as to make themselves liable to be convicted for comission of an
offence under Sections 302/149 !PC. It must be borne in mind that in case of       D
this nature, where a large number of persons are made accused, the possibility
of some accused person committing murder at the spur of the moment cannot
also be ruled out.

      We are, however, of the opinion that the names of appellant Nos. I and
2 only having been mentioned in the First Information Report and the               E
statements of P. W. I and P. W. 2 in relation to the role played by them having
been found corroboration from the medical evidence, the judgment of conviction
and sentence as against them must be sustained.

      For the reasons aforementioned Criminal Appeal No. 784/2004 is allowed
in part. The appeal of appellant Nos. I and 2 is dismissed, whereas the            F
appellant Nos. 3 and 4 in Criminal Appeal No. 784/2004 are given benefit of
doubt and are acquitted. Appellant Nos. 3 and 4 are in jail. They are directed
to be set at liberty forthwith unless they are required in any other case.

      Criminal appeal No. 773/2006 (arising out ofSLP (Crl). No. 4438/2004)        G
filed by the State is dismissed.



D.G.                                   Crl A.No. 784/2004 partly allowed and
                                                 Crl A.No. 773/06 dismissed.