RAMESH SINGH Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The appellants in these appeals were accused 2 and 3 before the 2nd Additional metropolitan Sessions Judge, Hyderabad in s. C. No. 178/99. The said Sessions Judge found the appellants and A-l guilty of an offence punishable under Sec. 302 read with Sec. 34 Penal Code and sentenced them to undergo imprisonment for life. Against the said conviction and sentence, all the accused preferred an appeal before the High Court of judicature, Andhra Pradesh at Hyderabad which having been dismissed, the two appellants who were accused 2 and 3 have challenged the said judgment of the High court, while accused No. 1 has not challenged the said judgment and conviction.

(2.) Brief facts necessary for the disposal of these appeals are follows: the deceased S. Mahendara Singh was residing with his mother PW-2 and elder brother PW-1 at Bapunagar within the limits of Sanjeevareddy Nagar Police Station. The appellants and A-l were also residents of said Bapunagar. The residents of Bapunagar were managing an Association called Basthi youth Association which in turn was running a Bhajana Mandali. PW-4 was the President of the said Bhajana Mandali and the deceased was the Vice President of said Bhajana mandali. It is the case of the prosecution that there was a death in the family of A-2, hence, he wanted certain "samagri" for the funeral which was available in the said Bhajana mandali. With a view to get the "samagri", on 30th of April, 1998 at about 11 p. m. , the accused persons came to the house of the deceased and asked him to give the said "samagri" for taking them to Maheswaram for doing Bhajan at the house of the relative where the death had taken place. It is stated that the deceased refused to give Bhajan samagri for being used outside the locality. Being annoyed by the said refusal by the deceased, it is stated that the accused persons went away but came back again at about 11. 45 p. m. when the members of the deceased family were sleeping and called the deceased tocomeout. The prosecution alleges on being so called the deceased went outside the house. Immediately thereafter PWs. l and 2 heard the cries of the deceased, hence, they came out of the house when they saw A-2 and a-3 were holding the hands of the deceased and A-l was stabbing the deceased on the chest. The prosecution alleges that when these witnesses went near the victim the accused persons went away threatening these witnesses. The further case of the prosecution is that at that time PWs. 3 and 4 who were clearing certain construction materials in front of their house had also witnessed the occurrence. The prosecution alleges after the accused went away the deceased was removed to Gandhi hospital but he died on the way. PW-1 thereafter went to sanjeevareddy Nagar Police Station and gave a written complaint Ex. Pl to PW-8 who was in-charge of the Police Station at that time and a crime was registered on the basis of the said complaint under Sec. 302 IPC. PW-10, the Circle Inspector of Police of the said Police Station then took up the investigation. He visited the scene of offence and examined PWs. l to 4 and recorded the statements in the morning of 1st May, 1998 and after investigation he filed the charge sheet against the accused persons. It is relevant to mention herein that during the course of investigation PW-10 also got the statements of PWs. l, 3 and 4 recorded under section 164 of the Code of Criminal procedure. During the course of the trial, pw-4 did not support the prosecution case fully, hence, he was treated as hostile and cross-examined. The trial court accepting the evidence of the eye- witnesses PWs. l to 4 came to the conclusion that the deceased met with a homicidal death at the hands of the accused persons during which act A-l caused 4 stab injuries which led to his death and during the said attack by A-l, the other accused A2 and A3 were holding the hands of the deceased facilitating him to inflict the wound. Therefore, while A-l was convicted for an offence punishable under Sec. 302 ipc simplicitor, two appellants before us were convicted for an offence punishable under Sec. 302 with the aid of Sec. 34 ipc.

(3.) As stated above, the High Court concurred with the findings of the trial court and affirmed the said conviction and sentence. Shri K. V. Viswanathan, learned advocate and Ms. K. Amreshwari, learned senior Advocate appearing for the appellants contended that the courts below committed serious error in accepting the interested testimony of PWs. l to 3 and basing a conviction on the said evidence. It is pointed out to us that the investigating agency itself was not sure that the evidence of these witnesses was truthful or not therefore, it took the precaution of recording their statements before a Magistrate under section 164 of Cr. P. C. Therefore, apart from the fact that these witnesses were interested witnesses, the fact that their statements were recorded under Sec. 164 of Cr. P. C. also ought to have been taken as a ground to reject their evidence as unreliable. The learned counsel placed strong reliance on a judgment of this Court in the case of Ram charan and others Vs. State of U. P. ' to point out that it is not safe to rely on such evidence. The learned counsel also contended from the evidence of these witnesses that is clear that none of these witnesses had actually witnessed the incident and because of existing rivalry and out of suspicion these witnesses have falsely deposed that they had witnessed the incident. The further argument of the learned counsel was that the motive suggested by the prosecution even according to itself was non existent. It was pointed out to us from the evidence of PW-4 who was the President of the Mandali that after the accused persons returned back from the first visit to the house of the deceased and having come to know the need of the 2nd accused, he sent the keys of the Bhajana mandali to A-2 with instructions to take such "samagri" as is necessary for him. Therefore, having received the keys of the mandali, it is highly improbable that the accused persons would then come back and attack the deceased. The learned counsel then contended that atleast so far as these appellants are concerned, the prosecution has failed to establish any case and reliance placed on Sec. 34 Penal Code to convict these appellants on the basis of common intention was wholly erroneous. It was argued that there was no material on record to show that these appellants had any knowledge as to the carrying of the knife by A-l. It is further argued that assuming for argument sake that the prosecution has established that these appellants did hold the hands of the deceased, there was no material to indicate that these appellants had the knowledge that A-l would stab the deceased or he entertained an intention to kill the deceased. It was pointed out that even according to the prosecution case these appellants were unarmed and they did not exhort A-l to stab. Therefore, a conviction for offence of murder under section 302 with the aid of Sec. 34 Penal Code as against the appellant was unsustainable.