Holding

A conviction under Section 302 IPC (simpliciter) is permissible if the accused's overt act alone is sufficient to cause death and is supported by medical evidence, and the acquittal of co‑accused does not affect such conviction.

Summary

The appellant, Nallabothu Venkaiah, was one of sixteen accused who allegedly formed an unlawful assembly, hurled bombs and used axes, knives and spears to kill R. Venkateswarlu on 13 October 1992. The trial court convicted him under Section 302 IPC (simpliciter) and sentenced him to life imprisonment, relying on the testimony of three eye‑witnesses and corroborating medical evidence. The High Court later acquitted six of the co‑accused, holding that the eye‑witnesses were inimically disposed, and upheld only the appellant's conviction. On appeal, the Supreme Court examined whether a conviction under Section 302 without a specific charge or the aid of Section 149 is permissible, and whether the appellant can be convicted on the same evidence that led to the acquittal of others. The Court held that conviction under Section 302 simpliciter is valid if the accused's overt act alone is sufficient to cause death and is supported by medical evidence, and that the acquittal of co‑accused does not invalidate the appellant's conviction. It also affirmed the trial court's careful appraisal of interested witnesses, rejecting the High Court's dismissal of their testimony. Consequently, the appeal was dismissed and the conviction upheld.

Issues considered

Whether the appellant can be convicted under Section 302 IPC (simpliciter) without a separate substantive charge and without the aid of Section 149 IPC.
Whether the appellant's conviction can stand when the same evidence was used to acquit other accused.
Whether the testimony of interested (inimically disposed) witnesses can be relied upon.

Legislation cited

Explosive Substances Acts. 3, s. 5
Indian Evidence Act, 1872
Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 34

Subjects

murderSection 302 IPCSection 149 IPCunlawful assemblyeye‑witness testimonyinterested witnessesmedical evidencecommon intentionconviction despite acquittal of co‑accused

Judgment

A NALLABOTHU VENKAIAH
v.
STATE OF A.P.

AUGUST 20, 2002

B [Y.K. SABHARWAL AND H.K. SEMA, JJ.]

Penal Code, 1860.'. Section 3021149:

Murder~harges under SeCtion 3021149-Acquittal of s~me of ihe
C accused-Number ofconvicted accused less than five-Conviction under Section
302 simplicitor-Permissibility of-Held, permissible, if overt act attributed
to accused resulting in injury is sufficient in the ordinary course of nature to
cause death and supported by medical evidence-Charges could also be
converted into one under Section 302134 if criminal act done by accused in
D furtherance of common intention is proved

Criminal Trial:

Testimony of interested witnesses-Reliance thereon-Held, evidence of
such witnesses must be scrutinized with due care and caution in the light of
E medical evidence and surrounding circumstances-Witnesses are inimically
disposed to accused is no ground to throw away their otherwise reliable,
natural and credit worthy statement. Evidence Act, 1872-lnterested witnesses.

According to the prosecution, accused Nos. 1-16 formed an unlawful
assembly and committed inurder of one 'R'. Trial Court convicted accused
F Nos. I, 3, 4, S, 7, 8 and 10 under Seetion 302 read with Section 149 and
Section 148 IPC but acquitted the remaining accused since they were not
found guilty of the offences charged. On appeal, High Court re-appreciated
the evidence and reversed the order of conviction against all the accused
except accused No.I. Hence this appeal by accused No.I.

G It was contended for the appellant that since no separate substantive
charge has been framed against the appellant under Section 302 IPC, his
conviction is bad; and that since other accused have been acquitted,
appellant could not have iJeen convicted relying upon the same evidence.

Dismissing the appeal, the Court
H 606
NALLABOTHU VENKAIAH v. STATE OF A.P. 607
HELD: 1.1. Trial Court has accepted the evidence of PWs. I to 3 as A
natural, reliable and truthful. After scanning their deposition with care
and caution, the trial judge has held that admittedly all the accused and
the prosecution witnesses are from the same village and there is a faction
in the village between the parties. PWs I, 2 and 3 also admitted that there
were criminal cases involving both the parties. In such a situation, it will B
be difficult to get unbiased and independent witnesses and, therefore, the
eye-witness account of PWs I to 3 cannot be thrown out on account of
they being interested witnesses, if otherwise there is no infirmity in the
depositions of PWs I to 3 and their statements are reliable and
creditworthy. (615-B-El
c
1.2. The consistent evidence of PWs.I to 3 is that after the bomb was
hurled at the deceased, the deceased was driving his motor-cycle slowly.
PWJ, who was a pillion rider, jumped out of the motor-cycle, rushed to
the bush and watched the whole incident. He specifically stated that after
the deceased fell down accused No.I hacked axe blows on the neck of the
deceased. The same is the statement of PWs. I and 2. There cannot be D
any scope of mistaken identity of the accused. [620-C, DI

1.3. The factum of PWI driving a scooter on the day of incident has
been proved by PWs. 2 and J. It is immaterial which registration number
the scooter bears. In his cross-examination, PWI stated that he did not E
get the scooter registered in his name. He also denied the suggestion that
he h.ad no scooter. The witness was examined after a gap of almost five
years of the happening of the incident. It must be remembered that human
memories are apt to blur with the passage of time, more so, when PW2
stated that the scooter was not registered in his name at that time.
(615-G, H; 616-Al F
1.4. The witnesses are inimically disposed to the accused alone would
be no ground to throw away their otherwise reliable, natural and
creditworthy statement. The test, in such circumstances, as correctly
adopted by the Trial Court, is that if the witnesses are interested, the same
must be scrutinized with due care and caution in the light of the medical G
evidence and other surrounding circumstances. Animosity is double edged
sword and it can cut both sides. It can be a ground for false implication.
It can also be a ground for assault. However, High Court threw away the
eye-witness account of PWs.I to 3 on ground of animosity albeit without
any discussion. (616-B, CJ H
608 SUPREME COURT REPORTS (2002) SUPP. I S.C.R.

A 2.1. It is settled law that conviction under Section 302 simpliciter
without the aid of Section 149 is permissible if overt act is attributed to
the accused resulting in the fatal injury which is independently sufficient
in the ordinary course of nature to cause the death of the deceased and is
supported by medical evidence; wrongful acquittal recorded by the High
B Court, even if it stood, that circumstance would not impede the conviction
of the appellant under Section 302 r/w Section 149 I.P.C.; Charge under
Section 302 with the aid of Section 149 could be converted into one under
Section 302 r/w Section 34 IPC if the criminal act done by several persons
less than five in number in iurtherance of common intention is proved.
(619-F-HJ
c 2.2. In the instant case, Accused Nos. 3, 4, 5, 7, 8 and 10 have been
wrongly acquitted by the High Court discarding the natural and reliable
evidenc&! tendered by three eye-witnesses PWs. 1 to 3. Therefore their
acquittal would not affect the conviction of the appellant under Section
302 with the aid of Section 149 IPC though their acquittal stood because
D specific overt acts have been attributed to the appellant by eye-witnesses,
corroborated by medical evidence, which are independently sufficient in
the ordinary course of nature to cause the death of the deceased.
(620-A, B; 620-G, HJ

Subran and Ors. v. State of Kera/a, (1993) 3 SCC 722; Atmaram
E Zingaraji v. State of Maharashtra, (19971 7 SCC 41; Krishna Govind Patil
v. State of Maharashtra, (1964) 1 SCR 678; Netha/a Pothuraju and Ors. v.
State of Andhra Pradesh, (1992) 1 SCC 49 and Maracha/i/ Pak/cu and Anr.
v. State of Madras, AIR (1954) SC 648, relied on.

CIRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
F 517 of 2000.

From the Judgment and Order dated 3 l. l.2000 of the Andhra Pradesh
High Court in Crl. A. No. 555 of 1998.

A. Sobba Rao, for the Appellants.
G Ms. T. Anamika and G. Prabhakar for the Respondent.

The Judgment of the Court was delivered by
SEMA, J. The appellant along with 15 other accused was put to trial
before III Additional Sessions Judge, Guntur in Sessions Case No. 18 of
H 1994 to answer the following charges:
NALLABOTHU VENKAIAH v. STATE OF A.P. [H.K. SEMA, J.) 609
"Charge No. 1: -That you Al to Al6 at about 5.30 p.m. on 13th day A
of October, 1992 on the highway between S~ttenapalli and Macherla
in between 38/2 and 38/4 K.M. Stone after crossing Pakalapadu major
canal, formed into one group and were members of unlawful assembly
and did in prosecution of the common object ~f such assembly viz.,
of killing the deceased person R. Venkateswarlu son of China Bapaiah,
35 years, V.A.O. of Tondapi v'illage, and rioting and at that time you B
were armed with deadly weapons like country made bombs, axes,
spears and knives which are dangerous in nature and thereby
committed an offence punishable under section 148 of the Indian

• •
Penal Code and within my cognizance;

Charge No. 2: - That you A- I to A-16 at about the same time, date
and place and in the course of same transaction as mentioned above;
c

... charged the deceased R.Venkateswarlu son of China Bapaiah, 35
years, V.A.O. of Tondapi village while he was coming on the motor
cycle and when he reached the spot, all of you emerged from the
bushes on either side of the road and that AIO, Al2, A8 and Al6 D
hurled bombs and when the deceased fell down all of you surrounded
him and that A-1, A-9 and A-10 of you axed on his head and that A-
I and A-2 of you cut the throat of the deceased with axe and long
knife and that A-4, A-6 and A-7 of you stabbed him with spears on
abdomen and lower portion and that A-5 stabbed him with spear on
abdomen and that A-3 axed him near right ear, A-8 stabbed with E
spear on his neck; A-10 axed on the fore-head of him, A-11, A-12
and A-13 with spears and A-14 and A-16 with axes attacked the
deceased indiscriminately and A-15 with knife stabbed on his neck
resulting in his death instantaneously and thereby committed an offence
punishable under section 302 read with 149 of the Indian Penal Code F
and within my cognizance;

Charge No. 3: -That you A-8, A-10, A-12 and A-16 of you at about
the same time, date and place and in the course of same transaction
as mentioned above; hurled country made bombs at the deceased R.
_, Venkateswarlu in order tp kill him while in possession of the Explosive G
Substances which are dangerous in nature which bombs exploded
and thereby committed an offence punishable under sections 3 and 5
of Explosive Substances Act and within my cognizance."

The substance of the above charges is that on 13th October, 1992 at
it 5.30 p.m. accused 1-16 formed themselves into an unlawful assembly H
610 SUPREME COURT REPORTS [2002) SUPP. I ,S.C.R.

A and caused the death of one R. Venkateswarlu by hurling bomb~ and causing
bodily injuries by axes, knives and spears.

During the trial accused No. 2 expired and the trial against him stood
abated. After concluding of the trial, the trial judge found that accused Nos.
1, 3, 4, 5, 7, 8 and IO were guilty of the offence punishable under Section
B 302 read with Section 149 I.P.C. They were convicted and sentenced to
suffer imprisonment for life and also to pay a fine of Rs. 500 and in default
to suffer simple imprisonment for 3 months. They were flirther sentenced to
undergo Rigorous Imprisonment for one year each for the offence under

C
Section 148 I.P.C. Both the sentences were ordered to run concurrently. The
trial judge, however, found that accused Nos. 8, IO, 12 and 16 were not
guilty of the offence under Sections 3 and 5 of the Explosive Substances Act
•
I

and they were, accordingly, acquitted under the said charge. Rest of the
accused, i.e. accused Nos. 6, 9 and. 11 to 16 were not found guilty of the
offences, for which they were charged.

D Being aggrieved, accused Nos. I, 3 and 4 preferred Criminal Appeal
No. 555 of 1998 and accused Nos. 5, 7, 8 and I 0 preferred Criminal Appeal
No. 556 of 1998 in the High Court.
I
...
The High Court, by the impugned order dated 3 lst January, 2000,
E reappreciated the evidence and acquitted accused Nos. 3 and 4 in Crl. A. No.
555 of 1998 and their appeal was allowed to that extent. The High Court also .
allowed Criminal Appeal No. 556 of 1998 and acquitted accused Nos. 5, 7,
8 and I 0 and their conviction and sentence under the aforesaid sections of
law was set aside. The High Court, however, confirmed the conviction and
sentence of accused No. I, ( in Crl. Appeal No.555 of 1998) under Section
F 302 l.P.C. (simpliciter). The present appeal has been preferred by accused
No. I (Nallabothu Venkaiah); the appellant before us. No acquittal appeals r
have been preferred by the State.

Before we advert to the points urged we may, at this stage, point out
G that the High Court has acquitted accused Nos. 3, 4, 5, 7, 8 and IO on the
ground that P.Ws. 1-3, who were the eye-witnesses to the occurrence were
inimically disposed to the accused perso!ls and their evidence was unreliable.
The High Court also disbelieved the evidence of P.W.1 as he falsely deposed
that his scooter bear--the registration No.APG 2253. While acquitting the
aforesaid accused, the High Court discarded the evidence of P.Ws. I, 2 and
H 3 eye-witnesses by rendering the following reasons:

\·
NALLABOTHU VENKA-IAH v. STATE OF A.P. (H.K. SEMA, J.) 611

"The investigatioil further discloses that the vehicle bearing registration A
·number APG 2253 is a tractor, which was owned by the Commissioner
of Gunlllr Municipality and under these circumstances, we hold that
whatever evidence is given by P.W.I is not in fairness. He went to
make involvement as many accused as. he can do. The evidence of
P.W.I discloses that there has been party faction in the village. He B
has been accused in number of cases, which were filed by the deceased
and his party. To this effect a clear admission is given by him in the
cross-examination. Therefore, we are not prepared to believe the
evidence of P.W.I as a whole.

P.W.2 is a pillion seat driver. He has stated in his evidence, what all C
stated by P.W.I but while making individual involvement P.W.2 has
stated accused Nos. I, 10 and 9 hacked the deceased on his head with
an axe. It means P. W.2 did not involve accused Nos. 2 and 3 in the
incident. They came for the first time and hacked the deceased but
A I appears to be common when the deceased was attacked.
D
P. W.3 also claimed to be an eye-witness to the incident. He has come
with a different story altogether. P.W.3 was a pillion seat driver of
the motor cycle of the deceased. He stated in his evidence when he
had seen the accused hurling bombs at him he requested the deceased
to slow down the scooter. Then he jumped from the motor cycle and E
went towards bushes. He further stated that the deceased went to
some distance and fell down. Then A I hacked the deceased on his
neck with an axe and thereafter, he made involvement of A2, AIO,
A5, A7, A6, A3, AS and Al5.

This witness is also an accused in a number of cases along with F
P.Ws. I and 2. Therefore, it is very much clear from the evidence of
P.Ws. I, 2 and 3 that there has been a party faction and cases after
cases were filed against each other.

Considering the evidence of important eye witnesses, we are convinced
that A I was definitely present at the scene of offence and the presence G
of the other accused is doubtful because of inconsistency in the
evidence of P. Ws. I to 3. Therefore, we are of the considered view
that the other accused may be entitled for the benefit of doubt."

The contention that the eye-witnesses P. Ws. I, 2 and 3 were inimically
disposed to the accused has been rejected by the Trial Court by assigning H
612 SUPREME COURT REPORTS (2002] SUPP. 1 S.C.R.

A cogent reasons and considering the medical and other corroborative evidence.
The trial judge critically discussed the evidence of eye-witnesses, namely,
P. Ws. 1, 2 and 3 and also analytical description of the part played by each
of the accused in causing murderous assault on the deceased and accepted the
eye-witnesses account as natural and reliable. P. W. I stated in his evidence
B that on the fateful day, he went to Sattenapalli to purchase pesticides. After
purchasing pesticides, he came to the centre, where P.W.2 was also standing
and both of them started on his scooter to go to the village. When both of
them were going on the scooter, they saw the deceased and P. W.3 Muppalla
Ramaiah at a medical shop. When they were proceeding, P.W.3 and the
deceased also followed them. He stated that after passing Pakalapadu Major
C canal, they suddenly heard the sounds of explosion of bombs. Then P. W.2,
pillion rider on the scooter of P.W.l, infonned him that the bombs had been
hurled against the deceased and asked him to stop the scooter. Then he
stopped the scooter and saw P.W.3 Muppalla Ramaiah jumping from the
motor cycle of the deceased and running towards northern side fields. P. W.3
D was the pillion rider on the motor cycle of the deceased. He further stated
that at that time, the deceased - Rayidi Venkateswarlu was driving the motor
cycle slowly. Then accused Nos. 8, IO, 12 and 16 hurled bombs. Accused
Nos. I to 3 came opposite from southern side armed with axes and hacked
on the head of the deceased. Then the deceased fell down. Accused No. I
hacked the deceased on his neck. A. I 0 hacked on the head of the deceased
E with an axe. A.2 hacked on the neck of the deceased with a knife. A.4 to A.7
stabbed the deceased on his stomach with spears. P.W. I further stated that
A. l and A. l 0 chased them and then they ran towards the scooter and the
accused ran away towards south. P. W.1 also stated categorically that at that
time, he had a scooter bearing No. A.P.G. 2253, which he took from one
·F Narasimharao, but he did not get it registered in his name. He admitted that
himself, deceased and P.Ws. 2 and 4 were figuring as accused for assault of
a woman and A. I is one of the witnesses in that case. He also admitted that
himself and PWs. 2 to 4 are shown as accused in the murder case of
Rachakonda Chandraiah. It, therefore, clearly indicates party factions in the
village.
G
P.W.2 stated in his evidence that on the day of the incident, he went
to Sattenapalli to purchase a washer of his motor and in his return, he met
P.W.l and both of them started on the scooter of P.W.l to go to the village.
He further stated that when they reached Five Lamps Centre, they found
deceased 'and P.W.3 p~rchasing medicines and when they crossed Major
H canal, they heard explosion of bombs and saw P.W.3 jumping from the motor
NALLABOTHU VENKAIAH v. STATE OF A.P. [H.K. SEMA, J.) 613

cycle of the deceased. He also stated that accused Nos. 8, 10, 12 and 16 A
hurled bombs. He further stated that the deceased was proceeding on his
motor cycle by escaping the bombs. He categorically stated that accused Nos.
1, 9 and 10 hacked on the head of the deceased with axes. A.2 hacked on the
neck of the deceased with an axe. A. I0 hacked on th~ fore-head of the
deceased with an axe. A.2 stabbed on the neck of the deceased with a knife.
A.4, A.5 and A.7 stabbed the deceased with spears on his stomach. P.W.2 B
also stated that A. I and A. I 0 chased them for a distance. P.W.2 also admitted
about the cases pending against him along with other witnesses.

P. W.3, who accompanied the deceased on a motor cycle also deposed
about the specific overt acts played by each and every accused. He repeated C
the stories narrated by P.Ws. I and 2, as we have referred, earlier. He gave
a graphic description of each and every overt act of the accused in causing
·murderous assault on the deceased. He was a pillion rider of the deceased
motor-cycle. Immediately after the bomb was hurled, he ran towards the bush
and watched the entire incident from there. The witnesses and the accused·
are all from the same village. D
Dr. G. Vijaya Saradhi, Civil Assistant Surgeon, Governm.ent Hospital,
Sattenapalli, P.W.9, conducted Post Mortem Examination of the deceased
and found the following injuries:

"1. An incised wound with clean cut edges and tapering both ends E
of 6 x 0.5 ems. x bone deep over the back of the right side of
the occiput.
2. An incised wound of 5 x 0.5 ems. x bone deep over right occipital
region. Anterior to injury No. I. Edges are well defined and
contused. F
3. An incised wound 7 x 0.5 ems. x bone deep over right parietal
area extending to right temporal with tapered edges well defined
and clean cut.
4. A cut laceration 3 x 0.5 ems. of right ear pinna rediating to neck.
G
5. An incised wound 4 x 1.5 ems. x bone deep over the middle of
fore-head edges inverted and contused.
6. A cut incised 5 x 1.5 ems. x bone deep above the left-eye-brow,
the edges dragged and contused.

7. A cut incised wound (chopped) of 3 x 1.5 ems. irregular and H
614 SUPREME COURT REPORTS (2002) SUPP. I S.C.R.

A bone deep fractured the mandible over right side crushing the
structures underneath the root ·of the tongue with distortion of
the face.
8. A cut laceration 2.5 x 0.5 ems. below the left ear with left side
of the mouth. ~

B 9. A cut incision 5 x 2 ems. x muscle deep, the irregular and inverted
edges transversely present over the front of the neck below the
thyroid cartilage cutting the underneath neck structures, fractured
the Hyoid cut the trachea, larynx and oesophagus.
10. A cut incised wound 5 x 2 ems. x muscle deep with ragged
c edges just below the injury No. 9 cutting all the neck structures I'
underneath the injury.
I I. A punctured wound, vertical, clean edges inverted of 2 x I ems.
x cavity deep over the left side of the neck.
I2. A cut 'laceration transversely present of 2 112 x I cm x cavity
D
deep over the medial end of left collar bone.
I3. A stab injury 2.5 x I cm. x cavity deep over shaped over the left
laoin area anteriorely.
I4. A laceration I 5 x 5 ems. with charred edges and nail over the
E lateral aspect of left side of the thorax.
15. A stab injury 3 x 0.5 ems. with inverted and ragged edges of
cavity deep over the left side of the spigastrium with stomach
area.
16. A stab wound 4 x 0.5 ems x cavity deep with intestines. Seen out
F side above the umblicus transversely present.
17. A stab wound 3 x 0.5 ems. x cavity deep with clean and inverted
edges over the right side of the umbilcus. Obliquely present.
18. Multiple abrasion with charred edges over the lateral aspect of
G left upper arm. Fore arm of about 0.25 to 1.5 ems. x 0.25 x I
ems.
19. Multiple abrasions red with charred edges over the lateral aspecty
of left thigh of 0.2 to I 0 ems.
20. Multiple abrasions 0.5 x I cm x 0.2 to l cm. Over the lateral
H aspect of left side of the abdomen.
NALLABOTHU VENKAIAH v. STATE OF A.P. [H.K. SEMA, J.] 615

21. A cut laceration 2 x 0.5 ems x I cm. over the right hand at the A
root of the thumb."

The contention of the counsel for the accused that evidence of P. Ws.
I to 3 (eye-witnesses) cannot be accepted as they are chance witnesses and
highly interested and P.Ws. I and 2 are also related to the deceased and that
they are inimically disposed to the accused has been rejected by the Trial B
..Court by assigning cogent reasons. The Trial Court has accepted the evidence
of P. Ws. I to 3 as natural, reliable and truthful. After scanning their deposition
with care and caution, the trial judge has held that admittedly all the accused
and the prosecution witnesses are from the same village and there is a faction
in the village between the parties for the reasons that the deceased Rayidi C
Venkateswarlu, who was President of the village, was selected as Sarpanch
and later on 26.2.1992, he resigned from the Presidentship. Then, A. I, who
was the Vice-President, assumed charge as President of the Village and since
the deceased was popular in the village and became the Village Administrative
Officer, the appellant was facing difficulties in getting quorum in the village.
P. Ws. I, 2 and 3 also admitted that there were criminal cases involving both D
the parties. In such a situation, the trial judge held that it will be difficult to
get unbiased and independent witnesses and, therefore, the eye-witness account
of P.Ws. I to 3 cannot be thrown out on account of they being interested
witnesses, if otherwise there is no infirmity in the depositions of P.Ws. I to
3 and their statements are reliable and creditworthy. We accept the view E
taken by the Trial Court as correct appreciation of the evidence of PWs I to
3, in the facts and circumstances of the case.

The contention of the counsel for the accused that the evidence of
P.W. I cannot be accepted as he gave false evidence with regard to the
registration number of his scooter has also been rejected by the Trial Court. F
In his statement, P. W.-1 stated that he had a scooter and it bears the registration
No. A.P.G. 2253. It is the contention of the counsel that the registration No.
cited by the P.W.l belongs to a tractor and not to a scooter and therefore, the
statement of P.W.l that he is owning a scooter bearing registration No. A.P.G.
2253 is false and his evidence is not reliable. The High Court has erroneously G
accepted this submission. The factum of P.W.l driving a scooter on that day
has been proved by P.Ws. 2 and 3. It is immaterial which registration number
the scooter bears. In his cross-examination, P.W.-1 stated that he took the
scooter from Narasimharao and he did not get it registered in his name. He
also denied the suggestion that he had no scooter. The incident had happened
on 13.10.92 and the witness was examined on 17.11.97 - after a gap of H
616 SUPREME COURT REPORTS r2002] SUPP. I S.C.R.

A almost five years. It must be remembered that human memories are apt to
blur with the passage of time, more so, when P.W.2 stated that the scooter
was not registered in his name at that time.

We have already quoted the reasoning rendered by the High Court
acquitting accused Nos. 3, 4, 5, 7, 8 and 10. The aforesaid finding has been
B rendered by the High Court without discussing the depositions of P.Ws. l to
3 and by a cryptic order. The witnesses are inimically disposed to the accused
alone would be no ground to throw away their otherwise reliable, natural and
credit worthy statement. The test, in such circumstances, as correctly adopted
by the Trial Court, is that if the witnesses are interested, the same must be
C scrutinized with due care and caution in the light of the medical evidence and
other surrounding circumstances. Animosity is double edged sword and it
can cut both sides. It can be a ground for false implication. It can also be a
ground for assault. We are constrained to deprecate the manner in which the
High Court threw away the eye-witness accounts of P.Ws. 1 to 3 on ground
of animosity albeit without any discussion.
D
The Trial Court found from the deposition of PWs that the village
Tondapi is·a faction ridden village where criminal cases are instituted involving
both the prosecution and accused parties and it is difficult to secure unbiased
and independent witnesses and after thorough scrutiny accepted the evidence
of P. Ws 1-3 as truthful and reliable.
E
It must be borne in mind that criminal justice system must be alive to
the expectation of the people. The principle that no innocent man should be
punished is equally applicable that no guilty man should be allowed to go
unpunished. Wrong acquittal of the accused will send a wrong signal to the
society. Wrong acquittal has its chain reactions, the law breakers would
F continue to break the law with impunity, people then would lose confidence
in criminal justice system and would tend to settle their score on the street
by exercising muscle power and if such situation is allowed to happen, woe
would be the Rule of Law. What is apparent from the aforesaid discussion
is that the acquittal of the accused recorded by the High Court was clearly
G contrary to the evidence on record and on the basis of mis-appreciation of
eye witnesses account. It is unfortunate that acquittal appeals are not before
us.

Two questions of law are raised before us. Firstly, whether the appellant
could be convicted under Section 302 LP.C. (simpliciter) without aid of
H Section 149 l.P.C. in the absence of substantive charge under Section 302
NALLABOTHU VENKAIAH v. STATE OF A.P. [H.K. SEMA, J.] 617

J.P.C.? Secondly, whether the appellant could be convicted under self same A
evidence on the basis of which other accused are acquitted?

Mr. A. Subba Rao, learned counsel appearing for the appellant submits
that since no separate substantive charge has been framed against the appellant
under Section 302 l.P.C., the conviction of the appellant is bad. This question
has been decided in a catena of decisions of this Court. In Subran and Ors. B
v. State of Kera/a, (1993] 3 SCC 722 (deciding review petition No. 1394 of
I 993) six accused were arraigned for offences punishable under Sections
302, 324, 323, 341, 148 read with Section 149 l.P.C. Accused No. I Subran
alone was convicted under section 302 IPC (simpliciter) by the Trial Court
and confirmed by the High Court on appeal. The three-Judge Bench of this C
Court reviewing its earlier judgment substituted paragraphs I 0 and 11 of the
previous judgment as under:

"Appellant I, Subran, had rightly not been charged for the substantive
offence of murder under Section 302 !PC. Subran, appellant I, was
not attributed the fatal injury or identified as the person who caused D
the fatal blow. According to the medical evidence, none of the injuries
allegedly caused by appellant-Subran either individually or taken
collectively with the other injuries caused by him, were sufficient in
the ordinary course of nature to cause death of Suku. There is no
material on the record to show that the injuries inflic_ted by Subran,
with the chopper, were inflicted with the intention to cause death of E
Suku. Under these circumstances, the conviction of the first appellant,
Subran, for an offence under Section 302 !PC simpliciter was neither
desirable nor appropriate. The High Court, it appears, failed to consider
the scope of clause (3) of Section 300 !PC in its proper perspective.
In the facts of the present case, the intention to cause murder of Suku, F
deceased could not be attributed to the said appellant as the medical
evidence also unmistakably shows that the injuries attributed to him
were not sufficient in the ordinary course of nature to cause death of
the deceased. Appellant I Subran, therefore, could not have been
convicted for the substantive offence under Section 302 !PC and his
conviction for the said offence cannot be sustained. That Suku died G
as a result of cumulative effect of all the injuries inflicted on him by
all the four appellants stands established on the record. The question,
therefore, arises what offence did the four appellants commit?"

In Atmaram Zingaraji v. State of Maharashtra, (1997] 7 SCC 41 nine
persons were arraigned as accused before the trial court under Section 149 H
A
618 SUPREME COURT REPORTS [2002] SUPP. 1 S.C.R.

302/326 IPC. No other person, named or unnamed, alleged to have participated
-
in the crime. All the other 8 accused were acquitted by the High Court.
·,,;...
However, the appellant was convicted.under Section 302 IPC with the aid of ..
Section 149. On appeal, this Court held:

"In either of the above situations therefore the sole convict can be
B convicted under section 302 IPC (simpliciter) only on proof of the
fact that his individual act caused the death of the victim. To put it
differently, he would be liable for his own act only. In the instant ·/

~ase, the evidence on record does not prove that the injuries inflicted
by the appellant alone caused the death; on the contrary the evidence
of the eyewitnesses and the evidence of the doctor who held the post-
c mortem examination indicate that the deceased sustained injuries by
other weapons also and his death was the outcome of all the injuries.
The appellant, therefore, would be guilty of the offence under Section
.~ 326 IPC as he caused a grievous injury to the deceased with the aid
of a jambia (a sharp-cutting instrument)."
D
In Krishna Govind Patil v. State of Maharashtra, (1964] l SCR 678 a
four-Judge Bench of this Court has laid down that when four persons are
tried on a specific accusation that only they committed a murder in furtherance
of their common intention and three of them are acquitted, the fourth accused
cannot be convicted with the aid of Section 34 IPC for the effect of law
E would be that those who were with him did not conjointly act with the fourth
accused in committing the murder.

In Netha/a Pothuraju and Ors. v. State of Andhra Pradesh, [1992] l
sec 49 the appellant was called upon to face the trial along with other six
accused for offences under Sections 149, 141, 34 and 302 IPC. The trial
F court convicted more than five persons under Section 302 r/w ·Section 149
IPC. The High Court acquitted some of the accused resulting in reducing the
number of the accused to less than five and thus rendered section 149
inapplicable. On appeal this Court, having regard to the murderous attack by
the appellant, as disclosed by the eye-witnesses and the number and nature
G of injuries sustained, converted the conviction as one under Section 302
Section r/w Section 34 IPC.

In Maracha/i/ Pakku and Anr. v. State of Madras, AIR (l 954) SC 648
seven accused were charged under Section 302 r/w Section 149 IPC. The
trial court convicted two appellants along with five others of having constituted
H an unlawful assembly and committed murder and they were convicted under
NALLABOTHU VENKAIAH v. STATE OF A.P. [H.K. SEMA, J.] 619

Section 302 r/w Section 149 !PC. The High Court, on appeal, gave benefit A
of doubt to five accused and acquitted them. In the appeal before this Court,
it was argued that the said five accused having been acquitted and h1 the
absence of a charge that five other unknown persons constituted an unlawful
assembly, the two appellants could not be held members of the unlawful
assembly which had the common object, the three Judge Bench of this Court B
said:•

"We have not been able to understand how the High Court could
acquit these persons having held that the evidence of P.Ws. 5 and 6
as to how Kannan was murdered by accused I and 2 stabbing him
and the others holding him by his hands and legs, was true. It also C
said that with regard to participation of accused 3 to 7 they could not
say that the prosecution evidence was unreliable. On these findings,
in our opinion, no scope was left for introducing into the case the
theory of the benefit of doubt.We think that accused 3 to 7 were
wrongfully acquitted. Though their acquittal stands, that circumstance
cannot affect the conviction of the appellants under section 302 read D
with section 149, I.P.C."

In Achhey Lal v. State of U.P., AIR (1978) SC 1233 as many as 15
named persons had taken part in the assault on the deceased. 14 accused had
been acquitted by the High Court but the conviction and sentences awarded E
to the appellant by the Sessions Judge were upheld. This Court held that there
is no finding by the High Court that after acquittal of the accused the unlawful
assembly consisted of five persons or more, known or unknown, identified
or unidentified, the provisions of Sections 149 and 147 cannot be invoked for
convicting the sole accused as no individual act was assigned to him.
F
Analytical reading of catena of decisions of this Court, the following
broad proposition of law clearly emerges: (a) the conviction under Section
302 simpliciter without aid of Sectiou 149 is permissible if overt act is
attributed to the accused resulting in the fatal injury which is independently
sufficient in the ordinary course of nature to cause the death of the deceased
and is supported by medical evidence; (b) wrongful acquittal recorded by the G
High Court, even if it stood, that circumstance would not impede the conviction
of the appellant under Section 302 r/w Section 149 I.P.C. (c) charge under
Section 302 with the aid of Section 149 could be converted into one under
Section 302 r/w Section 34 if the criminal act done by several persons less
than five in number in furtherance pf common intention is proved. H
620 SUPREME COURT REPORTS (2002] SUPP. 1 S.C.R.

A We have already held that accused Nos. 3, 4, 5, 7, 8 and 10 have been
wrongly acquitted by the High Court discarding the natural and reliable
evidence tendered by three eye-witnesses P.Ws. l to 3. If that is so, the
acquittal of accused Nos. 3, 4, 5, 7, 8 and 10 would not affect the conviction
of the appellant under Section 302 with the aid of Section 149 though their
acquittal stood because specific overt acts have been attributed to the appellant
B by eye-witnesses, corroborated by medical evidence, which are independently
sufficient in the ordinary course of nature to cause the death of the deceased.

The consistent evidence of P.Ws. 1 to 3 is that after the bomb was
hurled at the deceased, the deceased was driving his motor-cycle slowly.
C P.W.3, who was a pillion rider of the motor-cycle of the deceased, jumped
out of the motor-cycle, rushed to the bush and watched the whole incident
under the bush. He specifically stated that after the deceased fell down accused
No. 1 hacked axe blows on the neck of the deceased. The same is the statement
of P.W.-1, who was riding a scooter on the same road at that particular time.
The same is the statement of P.W.2. P.W.2 was a pillion rider on the scooter
D of P. W. l. The witnesses and the accused are from the same village and the
incident had happened on 13th October, 1992 at about 5 .30 p.m. There cannot
be any scope of mistaken identity of the accused.

P.W. 4 stated that he knew all the accused and the deceased. On the day
of the incident, while proceeding on his tractor on the Pakalapadu major
E canal he saw all the accused armed with axes, spears and knives were going
on the road.

Dr. G. Vijaya Saradhi was examined as P.W.9. He conducted post
mortem examination of the deceased and found as many as 21 injuries, as
referred to in the earlier part of the judgment. Injury Nos. 7, 9 and 10 are
F
incise wounds. On internal examination, the doctor found, "neck shows upper
air passes were cut. Left castrotid vessels were cut, muscles were cut.
Haematoma present on left side of the neck. This corresponds to injuries 9
and 10." The doctor opined that "the patient would appear to have died of
hemorrhage and shock, and injuries to upper air passages, manor vessels, and
G vital organs liver, kidney, resulting from multiple injuries."

From the overt acts attributed to the accused appellant by P.Ws. 1 to
3, corroborated by medical evidence, it is apparent that the appellant has
caused murderous assault resulting in the death of the deceased.

H The next contention of Mr. Subba Rao, learned counsel for the appellant
NALLABOTHU VENKAIAH v. STATE OF A.P. [H.K. SEMA, J.) 621
that on the self same evidence, the other accused had been acquitted and, A
therefore, the appellant could not have been convicted relying upon the same
4 evidence. This contention deserves to be rejected. Firstly, because we have
already held that the acquittal of the other accused, rendered by the High
Court, was wrong and based on misappreciation of evidence. Secondly, as
pointed out, eye-witness version is supported by the medical evidence
attributing specific overt acts to the appellant. The ocular and medical evidence B
on record clearly establish the guilt of the appellant beyond reasonable doubt
for causing the death of the deceased.

Fo~ the reasons aforestated, there is no merit in this appeal and it is
accordingly dismissed. C
S.K.S. Appeal dismissed.