Judgment:
B. Seshasayana Reddy, J.
1. This Criminal Appeal is directed against the judgment dated 6th April, 2006 passed in S.C. No. 175 of 2003 on the file of II Additional Sessions Judge, Mahaboobnagar, whereby and where under the learned Additional Sessions Judge found A1-Singapogu Anjaiah, A2-Singapogu Chandra Mouli, A3-Singapogu Shankaraiah, A4-Singapogu Sreenu, A5-Singapogu Venkataiah, A6-Singapogu Narsimha, A7-Singapogu Sailu and A8-Singapogu Bal Ram guilty for the offences under Sections 148, 324, 302 r/w 149 IPC and convicted them accordingly and sentenced each of them to suffer imprisonment for LIFE for the offence under Section 302 IPC and Rigorous Imprisonment for 9 months for each of the offences under Sections 148 and 324 IPC. All the sentences were directed to run concurrently.
2. The appellants/ accused were put on trial before the Additional Sessions Judge, Mahaboobnagar for the following charges:
i) Against A1 to A8 for the offence of rioting, armed with deadly weapons punishable under Section 148 IPC;
ii) Against A1 and A2 for attempting to commit murder of P.W. 1-S.Ramulu punishable under Section 307 IPC;
iii) Against A3 to A8 under constructive liability for attempting to commit murder of P.W. 1 S. Ramulu punishable under Section 307 r/w 149 IPC;
iv) Against A1 and A8 for committing murder of S. Ramalingam punishable under Section 302 IPC;
v) Against A2 to A7 under constructive liability for committing the murder of S. Ramalingam punishable under Section 302 r/w 149 IPC;
vi) Against A4 and A7 for voluntarily causing hurt to P.W. 2-S.Narasimha with centry rod punishable under Section 324 IPC;
vii) Against A2 and A3 for voluntarily causing hurt to P.W. 3 S. Nagaiah with sticks punishable under Section 324 IPC;
viii) Against A5 and A6 for voluntarily causing hurt to P.W.4 S. Anjaiah with stones punishable under Section 324 IPC;
ix) Against A1 for voluntarily causing hurt to P.W.5 S. Ramachandraiah with centring sticks punishable under Section 324 IPC.
To bring home the guilt of the accused for the offences with which they stood charged, prosecution examined 12 witnesses and proved 16 documents and exhibited 7 material objects.
3. The prosecution version as unfolded during trial is as follows:
Accused are close relatives of PWs.1 to 5 and they are residents of Tirumulgherry village. There were disputes between them over a pathway. An altercation took place in respect of a dispute regarding pathway and a case in Crime No. 15 of 1997 under Section 324 IPC came to be registered by the Station House Officer, Balanagar. P.W. 1 and his brothers came to be prosecuted and the case ended in conviction. P.W. 1 and his brothers were sentenced to pay a fine of Rs. 100/- in the said case. The accused persons were waiting for an opportunity to take revenge against P.W. 1 and his brothers. On 9.7.2002 at about 7.00 A.M. P.W. 1 was on the way to his newly constructed house situated at the end of the village. He noticed A3 and one Chander, a Vidya Volunteer, and Bachya Naik conversing at the house of P.W.6. Bichya Naik was the Chairman of Watershed Committee. When A3 and Bichya Naik requested P.W.6 to provide chairs of watershed to school purpose, P.W. 1 told them that the chairs purchased by the Sarpanch could be spared for the school purpose. Interference of P.W. 1 was not liked by A3. Therefore, A3 abused P.W. 1 for which P.W. 1 admonished him. It is alleged that A3 beat P.W. 1 by holding his color. In the meanwhile, A1 Singapogu Anjaiah came from behind, held his head and threw him down. While PW.1 was being beaten by A1, P.Ws.2 to 5 and Ramalingam came in the rescue of him. A2 to A8 also joined and resorted to give blows on P.Ws.1 to 5 and Ramalingam. A1 and A3 beat P.W. 1 and caused injuries to him. A8 caught hold of Ramalingam which facilitated A1 and A2 to beat him. A7 caught hold of P.Ws.2 which facilitated A4 to beat him with a centring rod. A2, A3, A4, A7 and A8 beat P.W. 3 with sticks on his head and hand. A5 and A6 pelted stones on P.W.4 and thereby PW.4 received injuries on his thighs and hands. A1 dealt a blow on P.W.5 with a stick on his head which he warded off and the blow fell on his hand. Ramalingam fell unconscious. P.W. 1 and others moved him to Government Hospital, Balanagar on a tractor. On the way to hospital, P.W. 1 presented a report before the Station House Officer, Balanagar P.S. P.W. 11 Rajendra Kulkarni, SI of Police, Balanagar P.S. received Ex.P.1 report presented by P.W. 1 and registered a case in Crime No. 147 of 2002 and issued Ex.P.9 FIR. He sent all the injured to Government Hospital, Shadnagar. Ramalingam (hereinafter referred to as the deceased) succumbed to the injuries on the way to the hospital. P.W. 11 received death intimation at 10.15 a.m. on the same day. Thereupon, the section of law came to be altered and P.W. 11 filed Ex.P.10 memo of alteration of section of law in Court. P.W.9 Govind Waghmare, Civil Assistant Surgeon, Government Hospital, Shadnagar, examined P.Ws.1 to 5 and issued wound certificates. He noticed the following injuries on their persons:
P.W. 1 had the following injuries:
i) Abrasions two in number 3 x 0.5 cms over medial aspect of the scapula;
ii) Abrasion 6 x 4 cms over superior angle of right scalpula;
iii) Contusion 11 x 2 cms over the left scapular region;
iv) Contusion 6 x 2 cms below injury No. 3;
v) Two contusions 2 x 2 cms over the left shoulder;
vi) Contusion 3 x 4 cms over the skull posterior aspect rightside.
vii) Abrasion 3 x 0.2 cms over the right knee.
viii) Abrasion 0.5 x 0.5 cmsover the right shin.
ix) Contusion 3 x .5 cms over the left iliac fossa.
P.W. 2 had the following injuries:
i) Laceratin 8 x 0.5 x 0.5 cms over the left parietal region; P.W. 3 had the following injuries:
1) Laceration 2.5 x 0.5 x 0.5 cms over the left parietal region;
2) Contusion 6 x 2 cms over the right arm vertical.
3) Abrasions, two in number 0.5 x 0.5 cms over the abdomen left side of the umbilical area;
4) Contusion 6 x 4 cms over right thigh across;
5) Abrasion 0.5 x 0.5 cms over left cubical fossa, posterior aspect. P.W.4 had the following injuries:
i) Abrasion 0.5 x 0.5 cms over the right palm, ventral aspect;
ii) Abrasion 0.5 x 0.5 cms over right buttock.
P.W.5 had the following injury:
i) Abrasion 6 x 4 cms over posterior aspect of right forearm.Exs.P.3 to 7 are the wound certificates. He classified the injuries found on P.Ws.1 to 5 as simple in nature. P.W. 11 inspected the scene and effected seizure of MO.7 stones numbering 5 under the cover of a panchanama. He also prepared Ex.P.11 rough sketch of the scene. P.W. 12 P.P. Ravi Kishore, CI of Police, Shadnagar took up investigation, held inquest over the dead body in the presence of P.W.8 and L.W.15 Hanumanth Naidu. Ex.P.12 is the inquest report. After the inquest the dead body was sent for post mortem examination. P.W.9 Dr.Govind Wagmare held autopsy on the dead body of the deceased on 9.7.2002 at 1630 hours and found the following injuries:
i) Bleeding from left ear present.
ii) Laceration 3 x 0.5 cms x bone deep over the vertex in the scalp.
He opined that the death of the deceased was due to haematoma of the brain with multiple skull fractures. Ex.P.8 is the post mortem report issued by him. He effected arrest of the accused on being produced before him by the Sub-Inspector of Police, Balanagar on 20.7.2002. He arrested the accused and recovered MOs.3 and 4 sticks in pursuance of the disclosure statements of A2 and A3 under the cover of Ex.P.13 and P.14 panchanamas, MO.5 centering rod in pursuance of the disclosure statement of A4 under the cover of Ex.P.15 panchanama and MO.1 crow bar in pursuance of the disclosure statement of A1 under the cover of Ex.P.16 panchanama. After completing investigation, he laid charge sheet in the court of the Judicial Magistrate of First Class, Jadcherla. The learned Magistrate took the charge sheet on file as P.R.C. No. 67 of 2002 and committed the case to the Sessions Division, Mahaboobnagar, as the offences under Sections 302 and 307 IPC are exclusively triable by a Court of Session. The learned Sessions Judge took the case on file as S.C. No. 175 of 2003 and, on hearing the prosecution and the accused, framed charges as detailed supra, read over and explained the same to the accused on 8.7.2004. The accused pleaded not guilty and claimed to be tried. Subsequently, the case came to be made over to II Additional Sessions Judge, Mahaboobnagar for disposal according to law. To bring home the guilt of the accused for the offences with which they stood charged, prosecution examined 12 witnesses and proved 16 documents and exhibited 7 material objects. The accused took the plea that they were not in the village as on the date of the occurrence and that the deceased and P.Ws.1 to 5 received injuries in a road accident while traveling on a tractor. They further pleaded that taking advantage of their absence in the village after the incident, the prosecution party set fire to the house of one of them i.e. of A6 besides causing damage to the houses of others. The accused marked contradictions in the police statements of P.Ws.1, 3 and 6 as Exs.D1 to D7 and photographs of the houses of A1, A7 and agricultural borewell of A1 as Exs.D1 to D14 and a certificate issued by the Village Secretary as Ex.D15. As per Ex.D15 certificate, the shed in front of the house of Tirumalaiah gutted in fire. To probablise their defence, one of them i.e. A1 got himself examined as DW.1. The learned Additional Sessions Judge, on considering the evidence brought on record and on hearing the prosecution and the accused, found the accused guilty for the offences under Sections 148, 302, 324 r/w 149 IPC and convicted them accordingly and sentenced them as stated supra by a judgment dated 6.4.2006. Hence, this Criminal Appeal by the accused.
4. Heard Sri. C. Padmanabha Reddy, learned Senior Counsel appearing on behalf of the appellants/accused and learned Additional Public Prosecutor appearing for the respondent/State.
5. Learned Senior Counsel submits that in the FIR specific overt acts have not been attributed to any of the accused except making a bald statement that all the accused beat P.Ws.1 to 5 and the deceased and thus the evidence of P.Ws.1 to 5 attributing specific overt acts to the accused cannot be relied on. A further submission has been made that the incident allegedly occurred in a sudden quarrel and in which case neither constructive liability as provided under Section 149 IPC or common intention as provided under Section 34 IPC can be pressed into service with regard to the attack on the deceased. He would also submit that by reading the evidence of the prosecution witnesses it cannot be said that the common object of the assembly was to do away the life of the deceased. It is also contended by him that the participation of A2 with regard to assault on the deceased has not been spoken out by any of the witnesses in their police statements and for the first time the witnesses attributed specific overt acts to A2 and therefore, the role of A2 in respect of the attack on the deceased is liable to be excluded from consideration. He would also contend that there is no consistency in the evidence of prosecution witnesses with regard to the role attributed to A8 in respect of the attack on the deceased and therefore A8 is entitled to the benefit of doubt. In elaborating his arguments, learned Senior Counsel refers to the evidence of P.Ws.4 and 6 who did not speak of participation of A8 in the attack on the deceased. In support of his submissions reliance has been placed on the decisions of Supreme Court in Ramashish Yadav v. State of Bihar : 2000CriLJ12 and Bunnilal Chaudhary v. State of Bihar : 2006CriLJ3297 .
6. In Ramashish Yadav v. State of Bihar (1 supra), the Supreme Court observed that Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a pre-arranged plan, which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be a pre-arrangement or premeditated concert.
7. In Bunnilal Chaudhary V. State of Bihar (2 supra), the Supreme Court held that under Section 149 IPC, the liability of other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other persons knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behaviour on or before the scene of occurrence. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during occurrence does not arise.
8. Learned Additional Public Prosecutor submits that P.Ws.1 to 5 are the injured and the fact that they sustained injuries at the time and place of occurrence lends support to their testimony that they were present during occurrence. He would also submit that the evidence of P.Ws.1 to 5 is cogent and consistent that all the accused attacked them and caused injuries to them. He would further urge that mere non mention of the details of overt acts of the accused on the victims in the first information report is not a ground to doubt the testimony of the prosecution witnesses. A further submission has been made that in case of the accused being charged for the offence under constructive liability, specific overt act on the part of the accused is not required to be established by the prosecution. He alternatively submits that common intention of A1 and A8 to kill the deceased can be gathered by their conduct in the course of the incident i.e. A8 caught hold of the deceased to facilitate A1 to give a blow, and thus A1 and A8 shared the common intention to kill the deceased. In support of his submissions, reliance has been placed on the decision of the Supreme Court in Ch. Pulla Reddy v. State of Andhra Pradesh : 1993CriLJ2246 and Bishna v. State of W.B (2006) 1 SCC (CRL) 696.
9. In Ch. Pulla Reddy's case (3 supra), A2 therein was present on the night of occurrence with a knife along with A1 who was also armed with a knife and they took strong exception to the reprimand by the deceased on the earlier episode which provided immediate motive for the commission of the crime. A1 and A2 therein had come armed with knives to the house of the deceased therein and both were present at the middle of the night near the head of the cot on which the deceased was lying where A1 stabbed him twice in the chest and thereafter left the place. Basing on these set of facts, the Supreme Court held that A1 and A2 therein had thus shared the common intention of causing the death of the deceased.
10. In Bishna's case (4 supra), the Supreme Court observed that FIR need not be an encyclopedia of the events. A further observation has been made by the Supreme Court in the cited case that for the purpose of attracting Section 149 or 34 IPC of specific overt act on the part of the accused is not necessary.
11. We have given our thoughtful consideration to the rival contention of the learned Counsel. P.Ws.1 to 5 are the injured witnesses. The fact that they sustained injuries in the occurrence has been well established through their medical certificates which have been exhibited as Exs.P.3 to P.7. The incident occurred at 7 a.m. on 9.7.2002. P.W. 1 is one of the injured who presented the report before the Station House Officer, Balanagar at 9.15 A.M. P.W. 11 received the report and registered a case in Crime No. 147 of 2002 and sent the injured (P.Ws.1 to 5) and the deceased to hospital for treatment. At 10.15 am he received information that the deceased succumbed to injuries and thereupon he altered the section of law and issued Ex.P.10 memo of alteration of section of law. P.W.9 medically examined the injured between 10 a.m. to 11.30 a.m. More precisely he examined P.W. 3 at 10 a.m., P.W. 2 at 10.25 a.m., P.W. 1 at 11.05 a.m., P.W.5 at 11.20 a.m. and P.W. 4 at 11.30 a.m. The time gap is so narrow to put in any distorted version of the incident in Ex.P.1 report.
12. It is contended by learned Senior Counsel that details of overt acts of the accused have not been mentioned in Ex.P.1 report and thus the overt acts attributed by the witnesses in their police statements and before the Court pales into insignificance.
13. It is apposite to note the circumstances under which Ex.P.1 report came to be presented before the Station House Officer, Balanagar P.S. P.Ws.1 to 5 and the deceased received injuries and the condition of the deceased was found to be critical. Such is the situation, P.W. 1 is not expected to allow further time to be lapsed in giving graphic description of the occurrence without rushing to hospital for medical assistance as quickly as possible. It is well settled that FIR is not an encyclopedia and it is not be all and end all of a case. Such a report sets the law into motion and at the stage of investigation details can be gathered and filled up. Mere omission of details in FIR would not put the prosecution case out of court, if evidence on record establishes the prosecution case, matter of details need not be mentioned in FIR vide the decision of the Supreme Court in State of U.P. v. Sahai 1982 SCC (CRL) 223. FIR merely meant to narrate the brief facts, which led to the incident viz. names of the assailants and the place of occurrence. It is not supposed to contain the minute details. Hence, omission to mention details in it cannot affect the testimony of the witnesses concerned when his testimony is found to be trustworthy vide decision of the Supreme Court in State of U.P. v. Hariram : 1983CriLJ1638 . The same is the view reiterated by the Supreme Court in Bishna's case referred to above.
14. The circumstances under which Ex.P.1 report came to be presented have been detailed supra. Therefore, mere omission of details of overt acts of the accused in Ex.P.1 report does not in any way effect the testimony of P.Ws.1 to 5.
15. P.Ws.1 to 5 have consistently stated that A1 beat the deceased with a crow bar on his head and caused serious injury for which he succumbed on the way to hospital. P.Ws.1,2,3 and 5 stated that A8 caught hold of the deceased. Though PWs.1 to 3, 4 and 6 stated before the Court that A2 dealt a stick blow on the deceased, their police statements do not attribute any specific overt act to A2 with regard to attack on the deceased. On the other hand, the investigating officers, who have been examined as PWs.11 and 12, admit of the omission of specific overt act of A2 in the statements of witnesses recorded under Section 161 Cr.P.C. For better appreciation, we may refer the evidence of PW.12 in his own words. He stated in cross-examination as follows:
PW.3 has not stated that A2 beat on the chest of the deceased with a stick. As per my investigation there is no mention of villagers who gathered at the place of the incident. PW.4 has not stated that A1 and A2 beat PW.1. PW.4 has not stated that PW.1 and PW.3 fell on the ground after receiving injuries. The witnesses have not stated that the deceased was beaten with a stick on the chest by A2.
Since the overt acts attributed to A2 in respect of the attack on the deceased is a major improvement by the witnesses before the Court over their police statements, the same is liable to be excluded from consideration. Hence, A2 cannot be held responsible for the assault on the deceased.
16. The question is whether the evidence brought on record is sufficient to invoke constructive liability as provided under Section 149 IPC. The genesis of the incident commenced with a quarrel between P.W. 1 and A3 at the house of P.W. 6 over a petty issue. P.W. 6 testifies that on the date of incident A3 came to his house and requested him to provide chairs and thereupon P.W. 1, who happened to pass through on the road in front of his house, intervened and advised him to provide the chairs of Gram Panchayat, for which A3 objected and abused him which ultimately resulted in verbal altercation between P.W1 and A3. Thereupon, P.Ws.2 to 5 and other accused arrived at the scene. On thorough consideration of the evidence brought on record, we are in no doubt to conclude that the incident occurred on a sudden quarrel over a petty issue. The question whether the members shared the common object to cause murder of the deceased has to be decided on the basis of nature of weapons used by such members, the manner and sequence of attack made by them on the deceased and the settings and the surroundings under which occurrence took place. No witness has proved that the accused persons had come on the scene of offence with a common object to commit murder of the deceased. None of them except A1 had given any blows to the deceased with the weapons they allegedly carrying with them. The manner and sequence of attack on the deceased as spoken out by the prosecution witnesses is insufficient to draw an inference that the object of the unlawful assembly was to kill the deceased or the member of the unlawful assembly knows that there was likelihood of the deceased being killed in prosecution of the common object. Therefore, Section 149 IPC cannot be pressed into service to make A2 to A8 as responsible for the death of the deceased.
17. The next question is whether A8 can be said to have shared the common intention with A1 to kill the deceased so as to make him liable with aid of Section 34 IPC. Section 34 of the Indian Penal Code provides for a vicarious liability. It reads as under:
Section 34: Act done by several persons in furtherance of common intention - when a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone.
Section 34 IPC lays down a principle of joint liability in doing a criminal act. The essence of liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is element of participation in action. The common intention implies acting in concert, existence of pre- arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be pre-arranged or premeditated concert. Common intention is to be inferred from the circumstances particularly the part played by the accused and surrounding circumstances namely nature of the weapon used and injury inflicted as well as the meeting of the minds among the accused who are being held constructively liable. There is no uniform inflexible rule for applying the principle of common intention. The inference there for must be drawn from the totality of the facts and circumstances of each case vide the decision of the Supreme Court in Rotash v. State of Rajasthan 2007 AIR SCW 44. Each case, however, has to be decided on its own merit. Facts of each case may have to be dealt with differently. Totality of circumstances could hardly be ever similar in all cases.
18. A1 appeared on the scene while the altercation between A3 and PW.1 was on. Initially A1 came on the scene armed with a stick. Later he went to the school and brought a crowbar and dealt a blow on the deceased which proved to be fatal. A8 also appeared on the scene armed with a stick. The accusation made against A8 is that he caught hold of the deceased when A1 came on the scene armed with a crowbar. Had A8 shared the common intention with A1, he would have not simply caught hold the deceased since he was already armed with a stick. He must have definitely dealt a blow with the stick on the deceased had he shared the common intention with A1. Therefore, we are unable to hold that the only inference possible is that A8 shared the common intention with A1 to kill the deceased. No doubt, A8 caught the deceased and this facilitated A1 stabbing the deceased. But, there is nothing whatsoever on record to indicate that A8 knew that A1 would cause fatal injury to the deceased, though he very much anticipated that A1 would cause grievous injury to the deceased. It is one of those borderline cases where one may with equal justification infer that the common intention was to commit murder or to cause grievous injury. But the benefit of any such doubt must go to A8. In the circumstances, we conclude, that the common intention of the accused has not been established, beyond reasonable doubt to cause the death of the deceased, but certainly was to cause grievous injuries to the deceased. Therefore, A8 is to be held liable for the offence under Section 326 r/w. 34 IPC and whereas, A1 is to be held liable for the offence under Section 302 IPC. The evidence of PWs.1 to 5 that they sustained injuries in the hands of the accused is fully corroborated by the medical evidence as well as the evidence of PW.6. Therefore, we are not inclined to interfere with the conviction and sentence of the appellants/ accused for the offences under Sections 148 and 324 IPC.
19. In the result, the appeal is partly allowed setting aside the conviction and sentence of the appellant Nos. 2 to 8 (A2-Singapogu Chandra Mouli, A3- Singapogu Shankaraiah, A4-Singapogu Sreenu, A5-Singapogu Venkataiah, A6- Singapogu Narsimha, A7-Singapogu Sailu and A8-Singapogu Bal Ram) for the offence under Section 302 IPC and they are acquitted of the same. The conviction and sentence of the appellant No. 1/A1-Singapogu Anjaiah, for the offence under Section 302 IPC and the conviction and sentence of the appellant Nos. 1 to 8 (A1- Singapogu Anjaiah, A2-Singapogu Chandra Mouli, A3-Singapogu Shankaraiah, A4- Singapogu Sreenu, A5-Singapogu Venkataiah, A6-Singapogu Narsimha, A7-Singapogu Sailu and A8-Singapogu Bal Ram) for the offences under Sections 148, 324 IPC are confirmed. Appellant No. 8/A8-Singapogu Bal Ram is found guilty for the offence under Section 326 r/w. 34 IPC and he is convicted accordingly, and sentenced to suffer rigorous imprisonment for a period of three years. The sentence imposed on him for the offence under Section 326 r/w 34 IPC shall run concurrently with the sentence imposed on other offences. Since the appellant Nos. 2 to 7 (A2 to A7) have already served out the sentence of imprisonment for the offences under Sections 148 and 324 IPC, they shall be set at liberty forthwith, if they are not required in any other crime.