PETITIONER:
KAKI RAMESH
Vs.
RESPONDENT:
STATE OF A.P.
DATE OF JUDGMENT29/04/1994
BENCH:
HANSARIA B.L. (J)
BENCH:
HANSARIA B.L. (J)
SAHAI, R.M. (J)
CITATION:
1994 SCC (4) 397 JT 1994 (3) 532
1994 SCALE (2)753
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
B.L. HANSARIA, J.- In these two appeals the six appellants
have challenged the judgment of the High Court of Andhra
Pradesh by which the conviction as awarded on them by the
Additional Sessions Judge, Krishna Division, Vijayawada was
upheld. Of the six appellants, three in Criminal Appeal No.
484 of 1982, who are Kaki Ramesh, Dadimadugula Pedda Baburao
and Dadimadugula Chinna Baburao, have come to be convicted
under Section 302 of the Penal Code; the remaining three,
namely, Senagasetti Subba Rao; Paladugu Veerayya and
Senagasetti Durga Prasad, who are the appellants in Criminal
Appeal No. 485 of 1982, have been found guilty under
Sections 302/149.
2.The prosecution case which need be noticed for the
disposal of the appeals is that the six appellants along
with many others had attacked one Raja Babu on the night of
3-8-1979 while the deceased and his brother PW 1, nephew PW
2 and mother PW 3 were sleeping in their house. The
attackers were armed with axes, spears and sticks. On
hearing the shouts, PW 1 opened the door when the members of
the unlawful assembly entered forcibly in the house of the
deceased and when he was about to get up from his bed,
appellant 1 in Criminal Appeal No. 484 of 1982, namely,
Kaki, cut him with an axe on his neck and asked others to
drag the deceased out. On
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this being done, he was attacked by two other appellants of
this appeal with axes. On seeing this, PWs 1 and 2 ran away
to a distance; PW 3 the old mother having fled away a little
earlier. After the accused party left, these PWs came back
to the place where the deceased was lying in a pool of
blood. Town police station Vijayawada was informed about
the matter soon thereafter, which set the police in action
and after conclusion of the investigation, the six
appellants were booked for trial and came to be convicted as
aforesaid, which convictions were upheld by the High Court
on appeals being preferred.
3.Shri Natarajan, learned Senior Advocate, who has addressed
principally on behalf of the appellants has raised four
submissions to persuade us that the conviction of the
appellants was not warranted by law. These contentions are
that there being no clinching matter on record about any
lamp being inside the room where the first assault on
deceased was made, the identity of the assailants is a
matter of doubt. Secondly no blood having been found inside
the room, the occurrence had not taken place in the manner
urged by the prosecution. It is then submitted there being
no abrasion on the back of the deceased, the story of his
having been dragged out is doubtful. The final submission
is that the room being small, all the members of the
unlawful assembly could not have entered the same, as is the
prosecution case.
4.Let us deal with these submissions in seriatim :
Insofar as absence of lamp is concerned, it may be pointed
out that this was not the contention raised on behalf of the
appellants either before the trial court or the High Court.
This might have been because of the fact that among others
PW 1 had clearly stated in his evidence that he had seen the
accused with the help of light in their house. Shri
Natarajan contends that this PW had not stated about the
lamp to the Investigating Officer, nor had this fact been
mentioned in the FIR. We do not think if in the FIR this
was required to be done or, for that matter, the PW was
required to state about it to the Investigating Officer
(10), nor was the 10 required to ask about it. This for the
reason that the assault having taken place inside the
sleeping room, it can be well presumed it had a lamp, may be
half-burning. Had the occurrence taken place on a dark
night either in a jungle or on roadside not having street
light, the question of existence of sufficient light to
identify the culprits would have been a relevant question.
5.Insofar as absence of blood inside the room is concerned,
we would state that blood having been found on the pillow
(MO 4) and on the blanket (MO 3), the case of prosecution
that the first assault was inside the room stands fully
corroborated. These two materials had been found inside the
room and the axe-blow being on the neck it was but natural
to find the blood on the pillow; it may be because of this
that the blood did not get spilled on the floor, because the
deceased had been dragged out immediately from inside the
room.
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6.As to the absence of abrasion at the back, we do not
place much importance inasmuch as even in the FIR the fact
of dragging had been clearly mentioned. This apart, the
deceased having had as many as 21 wounds on his body, all of
whom were ‘Incised, the little abrasion might have missed
the autopsy surgeon.
7.The last submission of Shri Natarajan is adequately met by
stating that what PWs stated in this regard has to be taken
as exaggeration. It is well established that exaggerations,
embellishments and inconsistencies on the fringe do not make
witnesses unreliable.
8.The aforesaid submissions had been advanced by Shri
Natarajan relating to Criminal Appeal No. 484 of 1982, which
is against the conviction of the three appellants under
Section 302. As to the appellants in Criminal Appeal No.
485 of 1982, the additional submission is that insofar as
appellant 1 is concerned no overt act was attributed and
appellants 2 and 3 were named for the first time in the
court that they had dragged the deceased from inside the
room.
9.Both these submissions have no cutting edge. This is for
the reason that for fastening of liability with the aid of
Section 149 of the Penal Code, commission of overt act is
not necessary. This proposition in law is well settled.
Even so, we would refer to the decision of this Court in
Sherey v. State of U.P.1 in which on the facts of that case
this Court desired evidence of overt act to satisfy its mind
about the involvement of appellants before it. The perusal
of that judgment shows that this was felt necessary because
the court was concerned with as many as 25 appellants who
had been convicted under Section 302 with the aid of Section
149. The genesis of the occurrence was a dispute between
Hindus and Muslims relating to a place which the Hindus
claimed as a cremation ground; whereas according to the
Muslims, the same was their graveyard. On a Hindu dying his
dead body was carried to the aforesaid place when the 25
appellants along with another came armed with lathis and
assault took place. It was observed that in such a case to
assure the mind of the court about presence of the person
concerned as a member of unlawful assembly, attribution of
overt act ‘is necessary. We do not read decision in Sherey1
to have laid down that in every case under Section 149 overt
act has to be established.
10.The six persons named in the FIR of the present case
included this appellant. Though Shri Natarajan has
submitted that lodging of the FIR even within 1 and 1/2
hours of the occurrence should be regarded as delayed action
inasmuch as police station was not far, we do not think if
we would be at all be justified in accepting this submission
because after the gruesome murder had taken place, the
family members must have taken sometime even to reconcile as
to what had happened.
11.As regards the two other appellants, we would observe
the mere fact that only in the course of trial they had been
named as those who had dragged the deceased out from inside
the room, cannot create reasonable
1 1991 Supp (2) SCC 437 : 1991 SCC (Cri) 1059
401 doubt about these appellants having really done so on
the face of clear statement in the FIR about dragging the
deceased and naming of these two appellants also in the FIR
as members of the unlawful assembly; who in particular had
dragged the deceased was not required to be stated in the
FIR.
12. Nothing further remains to be stated. Indeed,
nothing more could have been urged, because the facts are
tell-tale; apparent, inter alia, from the fact that the
incised wound on the neck measured 5″ x 3″ x 2″ telling
about the force and venom with which it was struck. The
fact that accused-party and the complainant-party belonged
to different factions in the village might have provided
motive for the crime, instead of false implication as sought
to be urged by Shri Natarajan. It may be pointed out that
the appellant Kaki was the leader of his faction and the
five other appellants were his associates.
13. In view of the above, we find no cogent reason to
disturb the conviction as awarded on the six appellants.
The sentence imposed being imprisonment for life on each is
the minimum visualised by Section 302. Both the appeals
therefore, stand dismissed. All the appellants are on bail.
Their bail bonds are cancelled. They will surrender to
serve out the remaining period of imprisonment as would be
required by each of the appellants.
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