STATE OF ANDHRA PRADESHversusK. SRINIVASULU REDDY AND ANR.

A                      STA TE OF ANDHRA PRADESH
                                        V.

                    K. SRINIVASULU REDDY AND ANR.

                             DECEMBER 18, 2003

B           [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

         Penal Code, I 860 :

         Sections 34, 302 and 326-Disputes and civil litigation between
C accused and deceased_;Accused attacking and hacking deceased with
  sha1p edged-weapons in presence.ofeye witnesses and threatening them-
  Fifty injuries on body of deceased-Medical report stating death caused
  by shock and haemorrhage-High Court altering conviction from Section
  302 to 326 on doubts regarding which injury caused death and attributable
  to which accused-Held, Section 302 rightly applied by Trial Court and
D High Court not justified in altering conviction-:-Common intention clearly
  perceived and proved beyond reasonable doubt from conduct of accused
  and manner of indiscriminate assaults.
                                                                .....
       ·Criminal trial-Appreciation ofevidence-Eye witnesses-Independ-
E ent witnesses attacked as "chance witnesses" by defence-Held, evidence
  of such witnesses cannot be implied as suspicious and their presence
  doubtful at place ofoccurrence by such description-Murders not commit-
  ted with previous notice to witnesses soliciting their presence-In the facts,
  held, said witnesses have clearly explained their presence at spot of
p occurrence-Sections 34, 302 and 326. ·
         Prosecution case was that V ~nd his wife B had no issues and were
    not on good terms and were living separately and V was paying
    maintenance to B. V wanted to give his properties to his sister's.sons,
    D & PW-1 whereas B wanted V to give property to accused-respondents
G   A-1 and A-2 who were her sister's sons. However, V bequeathed all
    his properties in favour of D and PW-1 and they were looking after
    the properties after his death and paying ~aintenance to B till her
    death. Accused bore grudge against D and PW-1 and disputes arose
    leading to various civil litigations between them. D and PW-1 obtained
H   decree and took possession of properties of V. Due to prolonged
                                       1050
                  .STATE OF A.I>. v. K.S. REDDY                 1051

litigation accused almost became penniless and vexed with the civil A
litigation, accused alongwith A-3 and A-4 entered into criminal
conspiracy to murder D and PW-1. On the date of occurrence, accused
attacked D with Panakatti and axe, chased and hacked him
indiscriminately. PWs. 1, 2, 3 & 5 requested accused not to kill D but
they did not pay heed to their words and also brushed aside PWs. 4 B
and 9 who tried to prevect accused from hacking D and threatened
them and other persons gathered there. Accused inflicted fifty injuries
on the body of D who was taken to hospital where he was declared
dead. Medical report stated that D appeared to have died of shock and
hemorrhage due to multiple injuries. Trial Court convicted accused C
under Section 302 of the Indian Penal Code, 1860 but acquitted A-3
and A-4. Trial Court also held that no offence under Section 120-B IPC
was made out. In appeal preferred by accused, High Court altered
conviction from Section 302 to Section 326 IPC on the 'ground that
there was doubt as to which injury was caused by which .accused and
which injury ultimately resulted in death of deceased. Hence this D
appeal by the State.

       Appellant contended that approach of High Court is erroneous
and in view.the facts and circumstances2 High Court was not justified
in altering conviction to Section 326 IPC; and that Section 34 IPC had E
fu.11 application.

     Respondents contended that there was no evidence to show any
common intention in making the assaults and therefore Section 302
IPChad no application;·that PWs 4 and 9 were chance witnesses who
did not explain hoW., they happened to be at the alleged place of F
occurrence; that conviction has been rightly altered to Section 326 IPC
since no partitular injury could be attributed to any particular
accpsed; and that Section 34 IPC had no application.

     Allowing the appeal, the Court
                                                                       G
     HELD : 1. From the conduct of the accused before and after the
occurrence and the manner of indiscriminate assaults a common
intention is clearly perceived and proved beyond doubt. Even other-
wise, looking at the weapons used by the accused, the injuries being
large in number and on vital parts,, Section 302 IPC had been rightly H
    1052               SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A   applied by the Trial Court and the High Court was not justified in
    altering the conviction. (1057-B-C)

          Willie (William) Slaney v. State of Madhya Pradesh, AIR (1956) SC
    116 and Dhanna Etc. v. State of Madhya Pradesh, AIR (1996) SC 2478,
B   relied on.

         2.1. In a murder trial by describing the independent witnesses as
    "chance witnesses" it cannot be i.nplied thereby that their evidence is
    suspicious and their presen~e at the scene doubtful. Murders are not
    committed with previous notice to witnesses; soliciting their presence.
C   If murder is committed in a dwelling house, the inmates of the house
    are natural witnesses. If murder is committed in a street, only
    passersby will be witnesses. Their evidence cannot be brushed aside or
    viewed with suspicion on the ground that they are mere "chance
    witnesses". (1058-B-CJ
D
         2.2. The criticism about PWs 4 and 9 being chance witnesses is
    without any foundation. They have clearly explained as to how they
    happened to be at the spot of occurrence and the trial Court and the
    High Court have accepted the same. It has to be noted that the said
    witnesses were independent witnesses. There was not even a suggestion
E   fa the witnesses that they had any animosity towards any of the
    accused. (1057-H; 1058-A-B)

          3. The judgment of the trial Court is restored. The respondents are
    ccnvicted under Section 302 IPC to undergo imprisonment for life. They
F   shall surrender to custody to serve remainder of sentence. (1058-F}

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    897 of 1997.

           From the Judgment and Order dated 28.11.96 of the Andhra Pradesh
G High Court in Crl. A. No. 626 of 1995.
           Mrs. K. Amareswari, B. Ramana Murthy and Guntur Prabhakar for
    the Appella~t.

H          G. Ramakrishna Prasad, Mohd. Wasay Khan and D. Mahesh Babu           r
           STATE OF A.P. v. K.S. REDDY [PASAYAT, J.]                1053

for the Respondents.                                                       A
     The Judgment of the Court was delivered by

      ARIJIT PASAYAT, J. : By the impugned judgment a Division
Bench of the Andhra Pradesh High Court altered the conviction of the
respondents (hereinafter referred to as the 'accused') from Section 302 of B
the Indian Penal Code, 1860 (in short the 'IPC') to Section 326 IPC. The
State of Andhra Pradesh has questioned legality of the judgment.

     Background facts as culled out from the judgment of the trial Court
and the High Cou1t are essentially as follows:                           C
      The accused are residents of Pamarru village and they are close
associates. A-1 and A-2 are brothers. A-4 is wife of A-2 and A-3 is
Sarpanch of Pamarru village. One Dandipati Gangi Reddy (hereinafter
referred to as 'the deceased') was also a resident of Pamarru. PW-1
Lakshmi Reddy is his brother, PW-2 Chandra Sekhara Reddy, is his son. D
One Bornmareddy Venkata Reddy is maternal uncle of PW- I Lakshmi
Reddy and the deceased. A- I and A-2 are sons of one Suramma, who is
sister of wife ofBommareddy Venkata Reddy, namely Bullemma, who was
not in good terms with her husband and they had .no issue. Bommareddy
Venkata Reddy was having 18 acres of land and house sites. Bullemma E
insisted that her husband should give their property to her sister's sons i.e.
A-1 and A-2; but Venkata Reddy was in a mood to give the prope1ty to
PW-I and the deceased, who were his sister's sons, since he was having
more affection and love towards them. Due to these differences, Bullemma
and Vtr.kata Reddy were separated and Venkata Reddy was paying F
maintenance to his wife as per Court orders. Subsequently Venkata Reddy
executed a 'Will' bequeathing his properties to PW-1 Lakshmi Reddy and
the deceased. After the death of Venkata Reddy, the deceased and PW-1
were looking after the properties and paying maintenance to Bullemma till
she died. A-1 and A-2 bore grudge against the deceased and PW-1, since G
Venkata Reddy did not bequeath any property to them. Therefore, disputes
arose and civil suit was filed and the same was decreed in favour of PW-
1 and the deceased about three years prior to the date of occurrence and
they took possession of the properties of Venkata Reddy. Against the said
decree, A-2 preferred appeal to the High Cou1t and the matter at the
                                                                           H
    I054               SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R..

A relevant point of time was pending before the High Court. The deceased
    and PW-I filed another suit in Subordinate Judge's Court ofGudivada in
    O.S. I38/86 and three months prior to the incident in this case, the Court
    passed a decree in favour of PW- I and the deceased. Thus, the grudge of
    A-1 and A-2 Became more acute. A-3 who was Sarpanch of Pamarru
B   ~llegedly had illicit intimacy with the younger sister of Bullemma.
    Therefore, he supported the wife ofVenkata Reddy and A-I and A-2. Due
    to these prolonged litigations, A-I and A-2 almost became penniless.

          Being vexed with the Civil Court litigations and due to Court orders
    in favour of deceased and PW-I, the accused persons hatched a plan to
C   kill the deceased. About one week prior to the date of occurrence, all the
    accused assembled in the house of A-2 several times and entered into
    criminal conspiracy to murder the deceased and A-3 also stated that he will
    go to Hyderabad and stay there and instructed A- I and A-2 to murder the
    deceased befo.re he returned. A-4 also instructed A-1 and A-2 to murder
D   the deceased as they have lost all their properties and became penniless.

          On 3 .9 .1992, the fateful day, A-1 and A-2 in pursuance of their
    criminal conspiracy, lay in wait near the New Bridge at Pamarru. While
    A-1 concealed a Penakatti near umbilicus and covered the weapon with
E   his shirt and towel, A-2 concealed an axe by concealing it near umbilicus
    and with his shirt and towel. A-1 was waiting near a shop at the slope and
    A-2 was waiting at the road near New Bridge, they found the deceased
    coming on a cycle from the village to the centre at about 8.45 a.m. and
    both the accused attacked him with Penakatti and axe. A-1 struck him with
    penakatti on his head, and A-2 also gave blows on his head with·the axe
F   and the deceased fell on the edge of bridge wall from his cycle. Then the ·
    deceased tried to run away towards the centre. A-1 and A-2 chased him,
    hacked him with Penakatti and axe. Then the deceased fell down into the
    slope. A-1 and A-2 hacked the deceased indiscriminately. PWs I, 2, 3 and
    5 i.e. Lakshmi Reddy, (::handrasekhara Reddy, Ramachandra Reddy and
G   Venkatarama Reddy requested the accused not to kill the deceased, but they
    did not heed to their words. Then PW-9 Siva Reddy and PW~4 Nancharayya
    tried to prevent the accused from further hacking the deceased. The
    accused brushed them aside, and threw the cycle in the canal and threatened
    the above two persons and also other persons who had_ gathered there. The
H   accused having caused nearly fifty injuries on the body of the deceased,
            STATE OF A.P. v. K.S. REDDY [PASAYAT, J.]                 1055

left the place of occurrence with the weapons. The deceased was taken to A
the hospital, PW-7 the Medical Officer, after examining Gangi Reddy
declared him dead. Late~ the Medical Officer, conducted autopsy over the
body of the deceased, opined that the deceased appeared to have died of
shock and haemorrhage, due to multiple injuries. At about 9.45 a.m.
PW-I gave a report to the Sub-Inspector of Police, Pamarru who registered B
the same as Criminal case No. 89/92 of Pamarru Police Station under
Section 302 IPC and investigated into. The Sub-Inspector of Police visited
the scene of offence in the presence of mediators (PWs 9 and 11) and
another, seized the blood stained Palmyrah leaves and blood stained earth
and conducted inquest over the dead body in the presence.of Panchayatdar C
PW-11 and one K. Rama Rao. Investigation was undertaken on the basis
of info:mation lodged. Out of four accused persons A-1 and A-2 were
charged for commission of offence punishable under Section 302 IPC,
while all of the four accused were charged for commission of offence
punishable under Section 302 read with Section 120-B IPC.
                                                                             D
      The trial Court placed reliance on the evidence of eyewitnesses and
held. that the accusations were clearly established so far as A-1 and A-2
are concerned. But acting on the statement made by the public prosecutor
that there was no definite material against A-3 and A-4, directed their
acquittal. All the four were also held not guilty of offence punishable under E
Section 120-B IPC.

      The convicted accused persons filed appeal before the \nd:1ra
Pradesh High Coutt. The primary stand of the accused persons before the
High Court was that after Laving discarded a part of the evidence, the trial
Court committed mistake in believing the evidence of PWs 2, 4, 6 and 9. F
Though the police station was situated nearby, there was delay in lodging
the complaint and same was not properly explained. As large number of
injuries were found on the body of the deceased on post mortem, it is highly
improbable that two accused persons accused of having hacked the
deceased with penakatti and axe, could cause such large number of injuries. G
One of the injuries was stated to be caused by blunt weapon and use of
blunt weapon was not spoken by any of the witnesses. The ocular evidence
and medical evidence did not tally with each other. Stand of the State
before the High Court was that the trial Court had properly analysed the
evidence to conclude about the guilt of A-1 and A-2. Since the evidence H
    1056               SUPREME COURT REPORTS [2003) SUPP. 6 S.C.R.

A was acceptable and trustworthy, the trial Cow1 rightly acted on it. There
    was in fact no delay in lodging the FIR. Observations made by the doctor
    recording injury No. I 0 were hypothetical. It did not say that the injury
    could not have been caused by weapon used by the accused. The High
    Cou11 accepted that there was corroboration as to the alleged number of
B   injuries and weapons used. The cause of death which was homicidal was
    due: to the assaults. The High Court, therefore, found that reasonings and
    findings of the trial Court were just and correct. Further, the High Court
    observed that since large number of injuries were found and they were on
    vital parts, it is difficult to say which injury was caused by which accused
    and which injury ultimately resulted on the death of the deceased. On this
C   premises, it was held that Section 302 IPC was not applicable. It was further
    observed that the pa11icipation of A- I and A-2 in committing the offence
    was established but since there was doubt as to which injury resulted in
    death, the proper provision to be applied is Section 326 IPC for which five
    years rigorous imprisonment was imposed accordingly.
D
          In support of the appeal, Ms. K. Amares•.vari, learned senior counsel
    submitted that the approach of the High Court is erroneous. It has been
    clearly born out by evidence on record that the accused persons were armed
    with deadly weapons, indiscriminately attacked the deceased mostly on
E   vital parts and inflicted nearly 50 injuries. That being so, the High Court
    was not justified in altering the conviction to Section 326 IPC. In any event,
    Section 34 had full application.

        In response, learned counsel for the accused respondents submitte·d
  that there was no evidence to show any common intention in making the
F assaults and as rightly observed by the High Cout1, Section 302 IPC had
  no application. With reference to the evidence of some of the witnesses
  who resiled their statement made during investigation, it was submitted that
  two persons i.e. accused A-1 and A-2 who were weakly built could have
  been resisted by the witnesses fairly large in number and who were
G physically well built. The fact that it did not happen that way goes to show
  that they were not present. In any event, there is no motive for the crime
  as ultimately PWs I and 2 would have been benefited from the killing.
  Further, it was submitted that since no particular injury could be attributed
  to any pai1icular accused, the conviction has been rightly altered to Section
H 326 IPC and Section 34 has no application.
            STATE OF A.P. v. K.S. REDDY [PASAYAT, J.]                1057

      We find that the High Court has really missed to consider the real A
question and it has concluded that since no particular injury could be
attributed to any patticular witness the proper course should be to alter the
conviction to Section 326 IPC. This reasoning cannot be justified as either
sound logic or on any settled principle of criminal jurisprudence. From the
conduct of the accused before and after the occurrence and the manner of B
                                                                              1
indiscriminate assaults, a common intention is clearly perceived and
proved beyond doubt. Even otherwise, looking at the weapons used by the
accused, the injuries being large in number and on vital parts, Section 302
!PC had been rightly applied by the trial Court and the High Court was
not justified in altering the conviction.
                                                                             C·.
      The legality of conviction by applying Section 34 IPC in the absence
of such charge was examined in several cases. In Willie (William) Slaney
v. State of Madhya Pradesh, AIR (1956) SC 116 it was held as follows:

              "Sections 34, 114 and 149 of the Indian Penal Code provide D
         for criminal liability viewed from different angles as regards
         actual participants, accessories and men actuated by a common
         object or a common intention; and the charge is a rolled up one
         involving the direct liability and the constructive liability without
         specifying who are directly liable and who are sought to be made E
         constructively liable.

              In such a situation, the absence of a charge under one or other
         of the various heads of criminal liability for the offence cannot
         be said to be fatal by itself, and before a conviction for the
         substantive offence, without a charge, can be set aside, prejudice F
         will have to be made out. In most of the cases of this kind,
         evidence is normally given from the outset as to who was·
         primarily responsible for the act which brought about the offence
         and such evidence is of course relevant".

     The above position was re-iterated in Dhanna etc. v. State of Madhya
                                                                             G
Pradesh, AIR (1996) SC 2478.

     Criticism was levelled against the evidence of PWs 4 and 9 who are
independent witnesses by labelling them as chance witnesses. The criticism
about PWs 4 and 9 being chance witnesse~ is also without any foundation. H
    1058               SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A They have clearly explained as to how they happened to be at the spot of
    occurrence and the trial Court and the High Court have accepted the same:

          Coming to the plea of the accused that PWs 4 and 9 were 'chance
    witnesses' .who have not explained how they happened to be at the alleged
B   place of occurrence it has to be noted that the said witnesses were
    independent witnesses. There was not even a suggestion to the witnesses
                                                                  a
    that they had any animosity towards any of the accused. In murder trial
    by describing the independent witnesses as 'chance witnesses' it cannot be
    implied thereby that their evidence is suspicious and their presence at the
    scene doubtful. Murders are not committed with previous notice to
C   witnesses; soliciting their presence. If murder is committed in a dwelling
    house, the inmates of the house are natural witnesses. If murder is
    committed in a street, only passersby will be witnesses. Their evidence
    cannot be brushed aside or viewed with suspicion on the ground that they
    are mere 'chance witnesses'. The expression 'chance witness' is borrowed
D   from countries where every man's home is considered his castle and
    everyone must have an explanation for his prec;ence elsewhere or in another
    man's castle. It is quite unsuitable an expression in a country where people
    are less formal and more casual, at any rate in the matter explaining their
    presence.

E         In the aforesaid background the trial Court was justified in convieting
    the accused-respondents under Section 302 IPC and the High Court without
    any legal basis altered the conviction. The judgment of the trial Court is
    restored. The respondents are convicted under Section 302 IPC to undergo
    imprisonment for life. They shall surrender to custody to serve remainder
F   of se~tence. The appeal is, therefore, allowed.

    A.K.T.                                                     Appeal allowed.