REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 454 OF 2009
Busi Koteswara Rao & Ors. .... Appellant(s)
Versus
State of A.P. .... Respondent(s)
WITH
2 CRIMINAL APPEAL NO. 455 OF 2009
J U D G M E N T
P.Sathasivam,J.
1) These appeals are directed against the final judgments and orders
dated 20.06.2007 and 13.06.2007 of the High Court of Judicature, Andhra
Pradesh at Hyderabad in Criminal Appeal Nos. 368 and 367 of 2003
respectively whereby the High Court
while setting aside the conviction and
sentence of other accused, partly allowed the criminal appeals upholding
the conviction of the appellants herein for the offences punishable under
Sections 148 and 436 of the Indian Penal Code, 1860 (in short ‘the IPC’)
and reduced the sentence for the offence punishable under Section 436 of
the IPC from 7 years to 3 years while maintaining the amount of fine and
directed the appellants herein to surrender themselves before the trial
Court in order to serve the remaining period of sentence.
2) Brief facts:
a) There were land disputes between two groups at Pedagarlapadu Village,
Guntur District, Andhra Pradesh in respect of the lands belonging to the
Temples which were leased out by the Endowments Department to the upper
class people of the village and there was resentment in local dalits for
the same.
One day, the agitators trespassed into the said lands, in
respect of which, Pinnam Peda Subbaiah-the leaseholder filed a complaint
which resulted into a deep seated rivalry between the two groups.
b) In order to take revenge, the other party attacked the leaseholder to
commit his murder. In retaliation, on 14.04.1997, the accused/appellants,
formed an unlawful assembly, armed with deadly weapons, raided the Harijan
colony and set ablaze around 50 dwelling houses of the prosecution party
and abused them in the name of their caste.
c) The Inspector of Police, Dachepalli took up the investigation which
culminated into registration of Crime Nos. 29 and 28 of 1997 and later, the
case was transferred to the Crime Investigation Department (CID). The
Deputy Superintendent of Police, CID, Vijayawada filed the charge sheet
against the accused persons for the offence punishable under Sections 147,
148, 435, 436 read with Section 149 IPC and Sections 3(1)(v), 3(1)(x),
3(2)(v) and 3(2)(iv) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (in short ‘the SC & ST Act’).
d) The cases were committed to the Court of Special Sessions Judge,
Guntur under the SC & ST Act and numbered as S.C. Nos. 63/S/2000 and
62/S/2000. In both the cases, by separate orders dated 24.03.2003, the
Special Sessions Judge found the appellants herein and others guilty for
the offence punishable under Sections 148 and 436 of the IPC and convicted
and sentenced each of them to suffer RI for one year and to pay a fine of
Rs.2000/- each, in default, to further undergo simple imprisonment (SI) for
one month for the offence punishable under Section 148 IPC and further
sentenced each of them to suffer RI for 7 years and to pay a fine of
Rs.10,000/-, in default, to further undergo SI for two months for the
offence punishable under Section 436 IPC read with Section 149 IPC.
(e) Aggrieved by the said order of conviction and sentence, the two
appeals being Criminal Appeal Nos. 368 and 367 of 2003 were filed before
the High Court.
(f) By impugned order dated 20.06.2007 in Criminal appeal No. 368 of 2003
and order dated 13.06.2007 in Criminal Appeal No. 367 of 2003, the High
Court, partly allowed the appeals and while setting aside the conviction
and sentence of other accused, upheld the conviction of the appellants
herein for the offences punishable under Sections 148 and 436 IPC but
reduced the sentence for the offence punishable under Section 436 IPC from
7 years to 3 years while maintaining the amount of fine.
g) Aggrieved by the said order, Busi Koteswara Rao (A-1), Pinnam
Nageswara Rao (A-4) and Busa Mattayya (A-30) have filed Criminal Appeal No.
454 of 2009 and Busi Koteswara Rao (A-1), Katakam Pedda Biksham (A-11),
Katakam China Biksham (A-12), Busa Mattayya (A-13), Busa Kotaiah (A-14),
Pinnam Rangaiah (A-15), Pinnam Sankar (A-17), Pinnam Nageswara Rao (A-19),
Boosa Srinu (A-21), Marasu Venkata Swamy (A-22), Pinnam Ramana (A-24) and
Pinnam China Subbayya A-25 have filed Criminal Appeal No. 455 of 2009
before this Court by way of special leave.
3) Heard Mr. V. Sridhar Reddy, learned counsel for the
appellants/accused and Mr. Mayur R. Shah, learned counsel for the
respondent-State.
4) In the case on hand, total 79 persons were chargesheeted for various
offences under IPC including Sections 147, 148 and Section 436. Though the
prosecution has examined 52 witnesses and exhibited 12 documents in support
of their case, among those witnesses, PWs 1-42 alone were cited as the eye-
witnesses to the occurrence. Due to the arson and violence that had
happened on 14.04.1997 between two groups of the same village, about 50
dwelling houses reduced into ashes. PWs 2, 4-15, 18, 20, 22, 23 and 26-41
did not support the case of the prosecution and were declared hostile
witnesses. On the other hand, PWs 1, 3, 16, 17, 19, 21, 24, 25 and 42
supported the version of the prosecution.
5) According to the prosecution, there was a friction amongst the two
groups of the same village. The prosecution party belongs to Telugu Desam
Party and the accused Party belongs to Congress (I). It is also projected
by the prosecution that apart from the political rivalry, there is also
serious enmity between the parties in respect of lease of temple lands.
There is no dispute that the incident occurred on 14.04.1997 was a group
clash between two rivalries. In such type of incidents, an onerous duty is
cast upon the criminal courts to ensure that no innocent is convicted and
deprived of his liberties. At the same time, in the case of group clashes
and organized crimes, persons behind the scene executing the crime, should
not be allowed to go scot-free. In other words, in cases involving a
number of accused persons, a balanced approach by the court is required to
be insisted upon. In a series of decisions, this Court has held that in
cases of arson and murder where large number of people are accused of
committing crime, the courts should be cautious to rely upon the testimony
of witnesses speaking generally without specific reference to the accused
or the specific role played by them.
(6) Even, as early as in 1965, a larger Bench of this Court in Masalti &
Ors. vs. The State of Uttar Pradesh, AIR 1965 SC 202 considered about how
the prosecution case is to be believed. The principles laid down in para
16 of the decision are relevant which is as under:-
“16. Mr Sawhney also urged that the test applied by the High Court
in convicting the appellants is mechanical. He argues that under the
Indian Evidence Act, trustworthy evidence given by a single witness
would be enough to convict an accused person, whereas evidence given
by half a dozen witnesses which is not trustworthy would not be enough
to sustain the conviction. That, no doubt is true; but where a
criminal court has to deal with evidence pertaining to the commission
of an offence involving a large number of offenders and a large number
of victims, it is usual to adopt the test that the conviction could be
sustained only if it is supported by two or three or more witnesses
who give a consistent account of the incident. In a sense, the test
may be described as mechanical; but it is difficult to see how it can
be treated as irrational or unreasonable. Therefore, we do not think
any grievance can be made by the appellants against the adoption of
this test. If at all the prosecution may be entitled to say that the
seven accused persons were acquitted because their cases did not
satisfy the mechanical test of four witnesses, and if the said test
had not been applied, they might as well have been convicted. It is,
no doubt, the quality of the evidence that matters and not the number
of witnesses who give such evidence. But sometimes it is useful to
adopt a test like the one which the High Court has adopted in dealing
with the present case.”
7) It is clear that when a criminal court has to deal with evidence
pertaining to the commission of an offence involving a large number of
offenders and a large number of victims, the normal test is that the
conviction could be sustained only if it is supported by two or more
witnesses who give a consistent account of the incident in question.
8) No doubt, in State of U.P. vs. Dan Singh and Others (1997) 3 SCC 747,
a Bench of two-Judges, in para 48 has held that “……it would be safe if only
those of the respondents should be held to be the members of the unlawful
assembly who have been specifically identified by at least 4 eye-
witnesses….”
9) We have already quoted the requirements for convicting an accused in
a clash between two groups as per Masalti (supra) which is a larger Bench
decision of this Court. In the light of the same, we reiterate and hold
that when an unlawful assembly or a large number of persons take part in
arson or in a clash between two groups, in order to convict a person, at
least two prosecution witnesses have to support and identify the role and
involvement of the persons concerned.
10) With the above background, let us consider whether the impugned order
of the High Court convicting A-1, A-4 and A-30 in Criminal Appeal No. 454
of 2009 and A-1, A-11, A-12, A-13 to A-15, A-17, A-19, A-21, A-22, A-24 and
A-25 in Criminal Appeal No. 455 of 2009 is sustainable.
11) We were taken through the statements of witnesses who supported the
case of the prosecution. We also perused all the relevant documents and
connected papers. As discussed by the High Court, PWs 1-21 spoke about the
participation of A-1 and A-38 whereas PWs 3 and 42 narrated with regard to
the participation of A-4 and PWs 16 and 17 described about the
participation of A-30. In the same way, the participation of the above
mentioned 12 accused persons in Criminal Appeal No. 455 of 2009 has been
spoken to by two or more witnesses.
12) By applying the principles laid down in Masalti (supra) and as
reiterated by us in the above paragraphs, inasmuch as at least two
prosecution witnesses have spoken to about the involvement and the role
played by the above accused persons, we have no reason to differ with the
decision arrived by the High Court. It is clear from the statements made
by the witnesses on the side of the prosecution that the appellants/accused
came in a mob and set ablaze around 50 dwelling houses and reduced them
into ashes and the same were identified and their involvement is
established by the reliable prosecution witnesses beyond reasonable doubt
which cannot be disturbed. On the other hand, we fully endorse the view
and the ultimate decision arrived by the High Court.
13) Coming to the sentence, the prosecution has established the offence
under Sections 148 and 436 of IPC. Insofar as the appellants are
concerned, though the trial Court has awarded 7 years of imprisonment, the
High Court reduced the same to 3 years while maintaining the fine amount.
In fact, Section 436 IPC enables the court to award punishment with
imprisonment for life or with imprisonment of either description for a term
which may extend to 10 years in addition to the fine. We have already
noted that the dwelling houses of PWs 1-42 were set on fire and reduced
into ashes by the above appellants/accused and the same have been duly
established by the prosecution beyond reasonable doubt. Taking note of the
sentence prescribed under Section 436 of IPC, we are of the view that even
the reduction of sentence by the High Court is not warranted, however, in
the absence of appeal by the State, we are not inclined to disturb the
same. 14) In the light of the above discussion, both the appeals are
dismissed. In view of the fact that this Court on 06.03.2009 enlarged all
the appellants on bail, if any portion of the sentence is left out, they
are directed to surrender within a period of 2 weeks from today to undergo
the remaining sentence.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(RANJAN GOGOI)
NEW DELHI;
NOVEMBER 22, 2012.
ITEM NO.1-E COURT No.3 SECTION II
(For judgment)
S U P R E M E C O U R T O F I N D I
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO.454/2009
BUSI KOTESWARA RAO & ORS. Appellant(s)
Versus
STATE OF A.P. Respondent(s)
WITH CRIMINAL APPEAL NO.455/2009
DATE :22/11/2012 These matters were called
on for pronouncement of judgment today.
For Appellant(s) Mr. V.N. Raghupathy, Adv.
For Respondent(s) Mr. D. Mahesh Babu, Adv.
Mr. Mayur R. Shah, Adv.
Ms. Savita Devi, Adv.
Ms. Suchitra Hrangkhawl, Adv.
Mr. Amit K. Nain, Adv.
Mr. M.B. Shivudu, Adv.
Hon'ble Mr. Justice P. Sathasivam pronounced the judgment of the
Bench comprising His Lordship and Hon'ble Mr. Justice Ranjan Gogoi.
The appeals are dismissed. In view of the fact that this Court
on 06.03.2009 enlarged all the appellants on bail, if any portion of the
sentence is left out, they are directed to surrender within a period of 2
weeks from today to undergo the remaining sentence.
(Usha Bhardwaj) (Savita Sainani)
(Court Master) (Court Master)
[Signed reportable judgment is placed on the file ]
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