Judgment

Pattanaik, J.-The appellants and two others, in all ten in number stood charged and were tried for having committed the offence under Sections 302/149, 307/149 and 148 Indian Penal Code in the Court of Sessions Judge, Cuddahep for forming an unlawful assembly and causing the death of Racham Reddy Rama Subba Reddy and Racham Reddy Obula Konda Reddy and for attempting to kill Chinna Reddy. The learned Sessions Judge acquitted accused numbers 7 and 8 but convicted rest of the eight accused persons under Section 302 read with Section 149 and under Section 148 IPC. They were, however, acquitted of the charge under Section 307/149 IPC. On appeal the High Court affirmed the conviction and sentence passed by the learned Sessions Judge and hence the present appeal. During the pendency of appeal in this Court two of the appellants died, namely, accused Nos. 4 and 5 and as such the appeal stood abated as against them.

2. The prosecution case in nutshell is that there was some dispute six months prior to the date of occurrence between the prosecution party and the accused party on account of the fact that P.W. 1 who is the brother of the two deceased persons obstructed the passage to the house of accused Nos. 1 to 3. The two deceased persons who were broth­ers of P.W. 1 naturally supported P.W. 1. The further prosecution case is that a week prior to the date of occurrence there had been an altercation between the two factions on account of some theft having taken place. On the date of occurrence on 10.12.1985 P.W. 1 went to the house of his brother who is one of the deceased in the case and both of them went together to their field. By 12.00 noon while they were returning P.W. 1 was following his deceased brother, in front of the Flour Mill in the village the accused persons came armed with lethal weapons and accused No. 1 hacked the deceased with a sickle right on the road. Nine other accused persons then surrounded the deceased and attacked him with their respective weapons in their hands. P.W. 1 started running from the place to save his life and the accused persons also tried to chase him but could not catch hold of him. The accused per­sons then came back and proceeded to the second place of occurrence where P.W. 3 and the second deceased were returning. The accused persons then suddenly emerged from a place with the weapons in their hands and then brutally assaulted the second deceased. P.W. 3 went and informed P.W. 1 who was by that time near the dead body of the first deceased. P.W. 1 in the company of P.W. 3 came to the second place of occurrence which was nearby and then a complaint was drafted by P.W. 5 on the basis of information given by P.W. 1. In the meantime, the village servant P.W. 9 went to Rajupalem Police Station and informed the Sub-Inspector of Police P.W. 14 that two persons have been killed. This information was entered in the General Diary Exhibit P8 and the Sub-Inspector of Police P.W. 14 rushed to the place of occurrence. At the place of occurrence P.W. 1 gave him the written report Exhibit P1 which was treated as First Information Report and then the police started investigation. On completion of investigation charge-sheet was filed and after the accused persons being committed they stood their trial and were convicted, as already stated.

3. The prosecution case essentially hinges upon the oral testimony of P.W. 1 so far as the murder of deceased No. 1 is concerned, and on the evidence of P.Ws. 3 and 4 so far as the murder of deceased No. 2 is concerned. An essential feature in this case is that the occurrence took place between 1.00 p.m. to 1.15 p.m. and the Station Diary entry Exhibit P8 was made shortly thereafter and the First Information Report was given to P.W. 14 at the place of occurrence at 3.45 p.m. which not only gives a vivid account of the entire occurrence but also implicates all the accused persons ascribing positive role and, there­fore, the question of any deliberation amongst the members of the prosecution party to falsely rope in the accused persons does not arise. The learned Sessions Judge and the High Court scrutinised the evidence of 3 main eye witnesses of the occurrence P.Ws. 1, 3 and 4 and held them to be fully reliable and accordingly convicted the accused persons.

4. Mr. Sundaravardan, learned senior counsel appearing for the appel­lants mainly raised the contention that the evidence of P.Ws. 1, 3 and 4 are not of such unimpeachable character relying upon which the Courts could have convicted these appellants of the charge under Section 302/149. In support of this contention he relied on the deci­sion of this Court in Anil Phukan v. State of Assam1.

5. He also contended that in any view of the matter the prosecution has failed to establish the ingredients of Section 149 and the convic­tion of the appellants by taking recourse to Section 149 cannot be sustained. In support of this contention he relied upon the decisions of this Court in the case of Bolineedi Venkataramaiah & Ors. v. State of A.P.2, Thakore Dolji Vanvirji & Ors. v. State of Gujarat3.

In order to appreciate the contentions raised by the learned counsel for the appellants we have scrutinised the evidence of P.Ws. 1, 3 and 4, though normally this Court does not reappreciate the evidence when two Courts of fact have already held them to be wholly reliable wit­nesses. We re-examined the evidence because 8 appellants have been convicted of the charge under Section 302/149. On re-examining the evidence of the aforesaid witnesses we do not find anything elicited in their cross-examination to impeach their testimony. The sole ground of attack made by the learned counsel for the appellants is that the witnesses are the relations of the deceased. In our considered opinion that can hardly be a ground to discard their version. On the other hand the relation of the deceased will not try to implicate any inno­cent person in the murder of the deceased. That apart no personal enmity has been alleged towards the accused persons. We do not find anything in the cross examination of these witnesses of P.Ws. 1, 3 and 4 as so not to rely upon them. In our considered opinion the learned Sessions Judge and the High Court rightly held the witnesses to be wholly reliable and based the conviction upon their testimony. In this connection learned counsel for the appellants relied upon the decision of this Court in Anil Fukkan (supra), which in our view goes against the contention of the learned counsel. It has been held in the aforesaid case that conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided that the witness passes the test of reliability. The Court has also further held that mere relationship of the witness with the deceased is no ground to discard his testimony if it is otherwise found to be reliable.

6. Coming to the second submission of the learned counsel for the appellants we also do not find any substance in the matter particular­ly when the sequence of events narrated by the three eye witnesses are taken into account. The question whether the group of persons can be made liable for having caused murder of one or two persons by virtue of Section 149 IPC depends upon the facts and circumstances under which the murder took place. Whether the members of an unlawful assem­bly really had the common object to cause the murder of the deceased has to be decided on the basis of the nature of weapons used by such members, the manner and sequence of attack made by those members on the deceased and the settings and surroundings under which the occur­rence took place.

7. Mr. Sundaravaradan, the learned senior counsel relying upon the decision of this Court in Thakore Dolji’s case (supra) vehmently argued that the allegation of prosecution witnesses as against the accused persons is of an omnibus nature and as such it would not be safe to convict the appellants under Section 302/149. There is no dispute with the proposition but the question for consideration is whether in the facts and circumstances as narrated by P.Ws. 1, 3 and 4 the Courts are justified in convicting the accused persons under Section 302/149 IPC?

8. In Bolineedi’s case (supra) this Court held that for arriving at a conclusion of constructive liability what the Courts have to see is whether they had the common object and members of the assembly knew it likely to be committed in prosecution of that object. In the aforesaid case from the fact that all the accused persons chased and surrounded the deceased and inflicted injuries with their respective weapons were held to be sufficient to conclude that they had the common object to kill the deceased.

9. The post mortem report of deceased Rama Subba Reddy Racham Reddy indicates that there are as many as 14 external injuries on his person of which 10 were incised wounds of different dimensions at different parts of the body. The cause of death was shock and haemorrhage. Internal examination indicated fracture of left frontal, parietal and temporal boxes infiltrated with blood. The brain matter of left fron­tal, parietal and temporal bones cut to a depth of 1". The post mortem report of deceased Rachmareddy Obula Konda Reddy also indicates he had as many as 13 injuries on his person and most of these injuries are incised in nature of different dimension. The evidence of P.W. 1 relating to the death of the first deceased indicates that all the accused persons were armed with sickle, battle axes, daggers and sticks and emerged from the western side of the mill and after A-1 hacked the deceased No. 1 on the head the other 8 accused persons surrounded him, cut him and stabbed him. The number of injuries on the deceased as per the post mortem report corroborates the oral testimo­ny. The manner in which the accused persons appeared at the scene of occurrence with lethal weapons in their hands and mercilessly assaulted the deceased after surrounding him clearly exhibits their common object was nothing but to kill the deceased, and therefore, we see no infirmity with the judgment of the learned Sessions Judge as affirmed by the High Court in appeal.

10. The evidence of P.W. 3 also indicate almost identical situation and circumstances so far as deceased No. 2 is concerned, and the same is corroborated by P.W. 4. The sequence of events narrated by these two witnesses clearly depict the common object of these appellants in killing the deceased No. 2 and, therefore, their conviction under Section 302/149 is fully justified. We, therefore, do not find any substance in the argument of the learned counsel for the appellant that the Courts below committed error by taking recourse to the provi­sions of Section 149 IPC.

11. In the net result we do not find any merits in this appeal, it is accordingly dismissed. The bail bonds furnished by the appellants stand cancelled. They should now surrender to serve the remaining part of the sentence.

(C.R.) Appeal dismissed.

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