1994 PLP 204 (SCMR)

(c) Penal Code (XLV of 1860)‑‑‑ ‑‑‑‑Ss. 302 & 149‑‑‑Appreciation of evidence‑‑‑Long‑standing rivalry in two groups was established‑‑‑Deceased had been given merciless beating and done to death‑‑‑'One of the accused was proved to have inflicted injuries to deceased by axe, other by spear and third one with stick‑‑‑Absconded accused persons were found and arrested in the house of one of the accused who was leader of rival faction against deceased‑‑‑No infirmity in recording conviction against three accused by High Court was found‑‑‑Supreme Court declined interference in circumstances. N.M. KASLIWAL, J‑‑‑Twelve persons were challaned for the murder of Nethala Veeraswamy, a resident and Sarpanch of Village Ramaraoducm in Eluru Taluq, West Godavari District (A.P.) in the night of 31‑12‑1977. Learned Sessions Judge, West Godavari Division, Eluru, tried the case and relying on the evidence of P.Ws.1, 2 and 7 in toto and the evidence of P.W.3 to some extent convicted all the accused persons for the offences charged under section 302 read with section 149, I.P.C. and awarded each one of them sentence of imprisonment for life and other minor terms of imprisonment for other offences. On appeal the High Court set aside the conviction and sentence of seven accused persons, namely, Dasari Bhaskara Rao (A‑4), Kali China Krishna (A‑5), Namburi Lakshmana (A‑8), Namburi Ramulu (A‑9), Namburi Prasada Rao (A‑10), Mada Govardhana Rao (A‑11) and Kali Kamaka Rao (A‑12). The High Corut confirmed the conviction of the remaining rive accused persons Mullagiri Vajram (A‑1), Mullagiri Yasupadam (A‑2), Dasari Bhima Rao (A‑3), Mada Lakshmandas (A‑6) and Gadi Abraham (A‑7) under section 302 read with section 149, I.P.C. and sentenced them to imprisonment for life. The High Court further held that as these accused had been sentenced for the main offence under section 302 read with section 149, I.P.C. and there was no need of separate sentence under sections 148 and 147, I.P.C.

2. The five accused A‑1, A‑2, A‑3, A‑6 and A‑7 have come before this Court in appeal against the order of the High Court by grant of Special leave. Mada Lakshma (A‑6) expired during the pendency of appeal before this Court as such the appeal filed by him was dismissed as having abated by order dated 8‑4‑1992. We are now concerned in this appeal with the four accused appellants A‑1, A‑2, A‑3 and A‑7. .

3. We have gone through the Judgment of the lower Courts and have perused the record and have considered the arguments advanced by learned counsel for the parties. The High Court has considered the prosecution evidence in detail and has placed reliance on the statements of P.Ws. 1, 2,, 3, and 4 as .eye‑witnesses of the incident. The High Court has placed implicit reliance on the testimony of P.W. 2 and who was a clerk working in the Panchayat office of Ramaraogudem and‑had accompanied the deceased in an auto‑rickshaw and had seen the incident. We find no infirmity in the statement of P.W.2 and the High Court has rightly placed reliance on his evidence.

4. Learned counsel for the accused persons, submitted that even if the statement of P.W.2 is taken to be correct, no offence, is made out so far as accused (A‑3) is concerned. Learned counsel in this regard submitted that P.W.2 in the cross‑examination has admitted that he did not state the name of A‑3 in his statement recorded under section 164, Cr.P.C. It was also submitted that though P.W.2 stated that he had given the name of A‑3 in his statement recorded at the inquest but the name of A‑3 does not rind mention in Exh. D‑7, the statement of P.W.2 recorded at the inquest. We see force in the aforesaid contention. A perusal of the statement of P.W. 2 shows that he did not make a mention of the name of A‑3 in his statement recorded under section 164, Cr.P.C. and also in his statement Exh. D‑7 recorded at the inquest. In view of these circumstances the accused A‑3 is also entitled to the benefit of doubt.

5. It was next contended by learned counsel on behalf of the accused A‑2 and A‑7 that P.W. 2'in the cross‑examination admitted that after the incident he had gone to police station seven or eight times. He had gone to the police station as he was asked by the police. He also admitted that at that time accused persons were in police lock‑up. On the basis of the aforesaid statement of P.W. 2 it was contended that when P.W.2 had gone to police station seven or eight times after the incident the possibility of his seeing the accused (A‑2) and (A‑7) in the police station cannot be ruled out. It was thus contended that any identification parade held on 25‑1‑1978 and 26‑1‑1978 has no value as P.W.2 had already seen the accused persons in the police station. We find no force in this contention Exhs. P‑16 and P‑17 are the proceedings of identification Parade held on 25‑1‑1978.and 26‑1‑1978 respectively. A perusal of these documents shows that P.W.2‑ Garapati Krishnavatharam had himself stated that he had prior acquaintance with Mullagiri Yesupadam (A‑2) and Gandi Abraham (A‑7). The High Court has examined this aspect of the matter and has rightly arrived to the conclusion that P.W. 2 in his evidence has stated that he came to know the names of the accused from the children of the deceased and it was not unnatural for a person who resides in a village for a period of two months and especially when they reside opposite to the residence of the president (deceased) in whose office he was working as a clerk to know the names of the persons residing nearby. P.W. 2 himself admitted at the time of holding the identification parade that he had prior acquaintance with A‑2 and A‑

7. P.W. 2 is a witness of sterling worth and both the trial Court and the High Court have placed reliance on his testimony. He had identified A‑1, A‑2 and A‑7 in the Court. Their conviction is not based on the identification 8 parade but on the statement of P.W. 1 and P.W.2 made during the trial as eye‑witness.

6. It is established beyond any manner .of doubt that there were two factions and long‑'standing rivarly in between the tw6 groups in the village. The accused persons belonged to the group headed by A‑6, A‑7 and the deceased was the leader of the other group Nethalaveeraswamy the deceased was given merciless beatings and was done to death in the mid‑night of 31‑12‑1977. He was found to have 26 external injuries as recorded in the autopsy of his dead body conducted by the Doctor. It has also been found established by the learned trial Court as well as by the High Court that A‑1 inflicted injuries by an axe and A‑2 by a spear and A‑T was among the other persons who inflicted injuries by a stick. It has also. come in the evidence of P.W.19, Inspector of Police that accused persons had absconded and on 9-1-1978 on information by 5-00 A.M. he along with mediators visited Ramaraogudem and the absconded accused were hiding in the house of A-7. He surrounded the house with gis staff guarded the house and in that house he found the twelve persons against whom the case was challaned. It has also been proved by the prosecution that there is no infirmity at all in the reasoning and conclusion arrived at by the High Court so far as accused A-1 A-2 and A-7 are concerned.

7. In the result we allow the appeal so far as Dasari Bhima Rao (A-3) is concerned and he is acquitted of all charges leveled against him his bail bonds shall stand discharged. The appeal filed by Mullagiri Vajram (A-1), Mullagiri Yesupadum (A-2) and Gandi Abraham (A-7) is dismissed. They shall surrender to their bail bonds and serve out the sentence awarded to them by the High Court. M.B.A. /419/F.C. Order accordingly