IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2047 OF 2008
Vutukuru Lakshmaiah ... Appellant
Versus
State of Andhra Pradesh ... Respondent
WITH
CRIMINAL APPEAL NO. 2052 OF 2008
CRIMINAL APPEAL NO. 205O OF 2008
J U D G M E N T
Dipak Misra, J.
The present appeals are directed against the judgment and order dated
22.03.2007 passed by the High Court of Andhra Pradesh in Criminal Appeal
No. 517 of 2005, whereby it has confirmed the judgment of conviction and
order of sentence passed by the learned Additional Sessions Judge, Nellore
in Sessions Case No. 365 of 1998 whereunder he had found the appellants
guilty of the offence under Sections 302 and 148 of the Indian Penal Code
(IPC) and sentenced each of them to suffer rigorous imprisonment for life
on the first score and imposed separate sentence under Section 148 IPC
with the default clause stipulating that all the sentences shall be
concurrent. Be it stated, the High Court has acquitted three of the
convicted persons.
2. Filtering the unnecessary details, the prosecution case is that the
deceased, Patrangi Ramanaiah, was a supporter of the Telugu Desam Party,
while accused Vutukuru Lakshmaiah, A-1, was the Councilor for Ward No. 16
of Nellore Municipality and belonged to the Congress Party. One Patrangi
Velongini Raja of Telugu Desam Party was allegedly murdered by accused, A-
1, and his brother and in the said prosecution the deceased and PW-1 were
witnesses.
3. On 14.05.1996 about 9.30 p.m., Pamula Ramanaiah, PW-1, and the
deceased were travelling on their scooter towards Akuthota Harijanawada,
and when they reached a sweet meat shop, Meriga Yedukondalu, A-4, and
Utukuru Seenaiah, A-6 (since deceased) attacked them as a result of which,
PW1, who was driving the scooter lost control of the scooter and both of
them fell down. As the prosecution story proceeds, Vutukuru Lakshmaiah, A-
1, Rayapu Srinivasulu, A-2, Rayapu Sivaiah, A-3, Meriga Ramaiah, A-5, and
Meriga Penchlaiah, A-7, stabbed the deceased multiple times with knives,
while A-4 and A-6 beat him with iron rods. A-2 then tried to stab PW-1 but
missed. Thereafter A-3 stabbed PW-1 with a knife on his left arm, but he
managed to escape and hid in the PWD office situated nearby.
4. As the prosecution case further unfurls, Pantrangi Venkateswarlu, PW-
2, and Ragutu Sreenivasulu, PW-3, who were returning from their work
witnessed the incident and after the assailants left the scene of crime,
they took the deceased to the Government Head Quarters Hospital, Nellore.
Being informed about the incident, the police immediately reached the scene
of incident where they found injured PW-1 who had returned to the scene of
occurrence and took him to the hospital, where Md. Kareemula, Head
Constable, PW-20, recorded the statement of PW-1, Ex. P-1, and it was
handed over to G. Srinivasa Rao, Sub-Inspector of Police, PW-21. Based on
the statement, Crime No. 57 of 1996 U/s. 147, 148, 324, 307 r/w 149 IPC was
registered and the investigation commenced. The deceased was subsequently
shifted to Apollo Hospital, Madras for better treatment. Meanwhile the II
Additional Judicial First Class Magistrate, Nellore, PW-18, recorded the
dying declaration of the deceased at the General Head Quarter Hospital,
which has been brought on record as Ex. P-13. On 15.05.1996, PW-21, visited
the scene of offence, prepared the panchanama, Ex. P-7, the rough sketch,
Ex. P-18, and recorded statements of PWs 1, 2, 3, 5, 6, 8, 12, 17. After
the receipt of intimation of death of the deceased on 18.05.1996, there was
alteration of the offence to Section 302 IPC and the investigation was
taken over by K. Veera Reddy, PW-22, the Inspector of police, who visited
the Apollo hospital, Madras and held inquest over the dead body of the
deceased in presence of G. Pulla Reddy, PW-18, and sent a requisition to
Dr. C. Manohar, PW-19, Assistant Professor, Forensic Medicine at Kilbank
Medical College, Chennai for postmortem examination who carried out the
autopsy over the dead body of the deceased on 18.05.1996 and opined vide
Ex.16, the postmortem report, that the cause of death was due to multiple
stab injuries. PW-22, the Investigating Officer, arrested A-2 to A-7 and
A9 on 28.05.1996 and at the instance of the arrested persons, except A-9,
the investigating agency recovered four knives and two iron rods. After
completion of the investigation, the chargesheet was placed before the
competent court and eventually the matter was tried by learned Additional
Sessions Judge. The accused persons took the plea of false implication and
the A-1, additionally took the plea of alibi.
5. The principal witnesses are, Pamula Ramanaiah, PW-1, Pantrangi
Venkateswarlu, PW-2, Ragutu Sreenivasulu, PW-3, II Additional Judicial
First Class Magistrate, Nellore, PW-18, and Dr. C. Manohar, PW-19. The
defence in support of its plea, examined 7 witnesses i.e. DW-1 to DW-7.
The learned trial Judge, after appreciating the entire evidence, both oral
and documentary, on record, especially the evidence of PW-1 to PW-3, and
the dying declaration, Ex.P-13, convicted A-1 to A-5 and A-7 to A-9 for the
offences punishable under Sections 148 and 302 IPC for causing death of
deceased Patrangi Ramanaiah, convicted A-2 to A-4 for the offence
punishable under Section 324 IPC and A5 for the offences punishable under
Sections 324 read with 149 IPC for causing injuries to PW-1.
6. Being aggrieved by the judgment of the trial Court, all the accused
persons preferred Criminal Appeal no. 517 of 2005 wherein the High Court,
after re-appreciating the evidence in entirety, affirmed the conviction and
sentence passed by the trial court in respect of the present appellants and
partly allowed the appeal thereby acquitting A4, A8 and A9 giving them the
benefit of doubt.
7. We have heard Mr. Nagendra Rai, learned senior counsel for the
appellants and Ms. June Chaudhary, learned senior counsel for the State.
8. Criticizing the judgment of conviction, it is submitted by Mr.
Nagendra Rai, learned senior counsel for the appellants that the evidence
adduced by the prosecution witnesses should have been discarded inasmuch as
their testimony is replete with contradictions and as the occurrence had
taken place during the night about 9.30 p.m. and there was no electric
supply and hence, it could not have been possible on the part of the
witnesses to see the accused-appellants by lighting the earthen mud lamp
with a match stick. Learned counsel would contend that they are chance
witnesses and their evidence really do not inspire confidence and, in fact,
when cautiously scrutinized, they deserve to be totally discarded. It is
urged by him that the dying declaration, Ex. P-13, does not inspire
confidence inasmuch as the allegations are omnibus in character and no
specific overt acts have been attributed to any of these appellants. It is
contended by him that when the High Court has found that A-4, A-8 and A-9
have been falsely implicated, it would have been appropriate on the part of
the High Court to hold that the present appellants also had been falsely
implicated in the case. It is canvassed by him that the appellant no. 1
was attending the Water Committee meeting on the date of occurrence and the
same had been established by bringing acceptable evidence on record by
citing witnesses and also by filing documents Ex. D-3 to D-8 which are
documents maintained by Nellore Municipality. It is his further submission
that learned trial Judge as well as the High Court has not given any
justifiable reason to disregard the evidence of DW-1 to DW-7. It is also
urged by him that the appellants could not have been convicted in aid of
Section 149 IPC as the charge framed against them was simplicitor Section
302 IPC; and even if Section 149 IPC can be resorted to, in the absence of
specific charge, the Court is required to see the circumstances, what is
the nature of offence committed. Alternatively, it is submitted by him
that even if the assault on the deceased is accepted, regard being had to
the absence of intention and the nature of injury suffered by the deceased
and death having taken place after three days, they may be liable for
conviction under Section 304 Part II IPC and not under Section 302 IPC. To
buttress the said submission, he has drawn inspiration from decisions in
State of Orissa v. Dibakar Naik[1], Sunder Lal v. State of Rajasthan[2] and
Marimuthu v. State of Tamil Nadu[3].
9. Ms. June Chaudhary, learned senior counsel appearing for State,
resisting the aforesaid arguments, contended that there is no reason to
discard the dying declaration as there is no infirmity in the same. It is
further urged by her that the testimony of all the witnesses are credible
and the contention that PW-2 and PW-3 are chance witnesses does not deserve
any acceptance. Learned senior counsel for the State would further submit
that though the charge has not been framed under Section 149 of the IPC,
there is no bar, regard being had to the evidence on record, to convict the
accused-appellants with the aid of the said provision. It is canvassed by
her that it is not a case for conversion of the offence, for it is squarely
a case under Section 302 IPC and not under Section 304 Part I or Part II of
the IPC.
10. First, we shall advert to the issue of non-framing of charge under
Section 149 IPC. While dealing with the said issue, in Willie (William)
Slaney v. State of M.P.[4] Vivian Bose, J., observed that every reasonable
presumption must be made in favour of the accused person; he must be given
the benefit of every reasonable doubt. The same broad principles of
justice and fair play must be brought to bear when determining a matter of
prejudice as in adjudging guilt. The learned Judge proceeded to state that
all said and done, the Court is required to see whether the accused had a
fair trial, whether he knew what he was being tried for, whether the main
facts sought to be established against him were explained to him fairly and
whether he was given a full and fair chance to defend himself. Thereafter,
Bose, J. proceeded to observe thus:-
“In adjudging the question of prejudice the fact that the absence of a
charge, or a substantial mistake in it, is a serious lacuna will
naturally operate to the benefit of the accused and if there is any
reasonable and substantial doubt about whether he was, or was
reasonably likely to have been, misled in the circumstances of any
particular case, he is as much entitled to the benefit of it here as
elsewhere; but if, on a careful consideration of all the facts,
prejudice, or a reasonable and substantial likelihood of it, is not
disclosed the conviction must stand; also it will always be material
to consider whether objection to the nature of the charge, or a total
want of one, was taken at an early stage.
If it was not, and particularly where the accused is defended by
counsel (Atta Mohammad v. King-Emperor[5]) it may in a given case be
proper to conclude that the accused was satisfied and knew just what
he was being tried for and knew what was being alleged against him and
wanted no further particulars, provided it is always borne in mind
that “no serious defect in the mode of conducting a criminal trial can
be justified or cured by the consent of the advocate of the accused”
(Abdul Rahman v. King-Emperor[6]).
But these are matters of fact which will be special to each
different case and no conclusion on these questions of fact in any one
case can ever be regarded as a precedent or a guide for a conclusion
of fact in another, because the facts can never be alike in any two
cases “however” alike they may seem. There is no such thing as a
judicial precedent on facts though counsel, and even Judges, are
sometimes prone to argue and to act as if there were.”
Chandrasekhara Aiyar, J., in his concurring opinion stated thus:-
“A case of complete absence of a charge is covered by Section 535,
whereas an error or omission in a charge is dealt with by Section 537.
The consequences seem to be slightly different. Where there is no
charge, it is for the court to determine whether there is any failure
of justice. But in the latter, where there is mere error or omission
in the charge, the court is also bound to have regard to the fact
whether the objection could and should have been raised at an earlier
stage in the proceedings.”
After so stating, the learned Judge opined that generally in cases of
omission to frame a charge is not per se fatal. Eventually, he ruled
thus:-
“Sections 34, 114 and 149 of the Indian Penal Code provide 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 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 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.”
11. After 1973 Code came into existence, two-Judge Bench in Annareddy
Sambasiva Reddy v. State of A.P.[7], relying on the principles enunciated
in Willie (William) Slaney (supra), has opined that the legal position
stated by the larger Bench would hold good after enactment of Code of
Criminal Procedure, 1973 as well in the light of Sections 215, 216, 218,
221 and 464 contained therein. Proceeding further, the Court has ruled:-
“Is non-mentioning of Section 149 in Charge 4 and Charge 5 a
fundamental defect of an incurable illegality that may warrant setting
aside the conviction and sentence of the appellants? We do not think
so. Non-framing of a charge under Section 149 IPC, on the face of the
charges framed against the appellants would not vitiate their
conviction; more so when the accused have failed to show any prejudice
in this regard. The present case is a case where there is mere
omission to mention Section 149 in Charges 4 and 5 which at the
highest may be considered as an irregularity and since the appellants
have failed to show any prejudice, their conviction and sentence is
not at all affected. Tenor of cross-examination of PW 1 and PW 3 by
the defence also rules out any prejudice to them.”
12. Keeping in view the aforesaid exposition of law, we are required to
see whether in the present case, the tests are satisfied. On a perusal of
the evidence on record, we find the facts and circumstances clearly bring
out that there was an unlawful assembly. Each of the accused person was
very well aware that they are tried for being a part of the assembly which
was armed with weapons and hence, it was unlawful. On a close scrutiny of
the evidence on record, it is difficult to hold that any prejudice has been
caused to the accused appellants. Thus, the said submission pales into
insignificance.
13. The next contention of the learned senior counsel for the appellants
is that the prosecution witnesses are chance witnesses, for there is no
occasion on their part to be at the scene of crime. Dealing with the
concept of chance witness, a two-Judge Bench in Rana Pratap and others v.
State of Haryana[8], has observed that:-
“We do not understand the expression “chance witnesses”. Murders are
not committed with previous notice to 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 brothel,
prostitutes and paramours are natural witnesses. If murder is
committed on 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
witnesses” is borrowed from countries where every man’s home is
considered his castle and every one must have an explanation for his
presence elsewhere or in another man’s castle. It is a most unsuitable
expression in a country whose people are less formal and more casual.
To discard the evidence of street hawkers and street vendors on the
ground that they are “chance witnesses”, even where murder is
committed in a street, is to abandon good sense and take too shallow a
view of the evidence.”
14. In Jarnail Singh v. State of Punjab[9], a two-Judge Bench opined that
the evidence of a chance witness requires a very cautious and close
scrutiny and as such a witness must adequately explain his presence at the
place of occurrence and if his presence at the place of incident remains
doubtful, then his version should be discarded.
15. In the case at hand, the prosecution has been able to establish the
presence of the witnesses at the place of occurrence. The plea that there
was no electricity and, therefore, it would not have been possible on the
part of the witnesses to see the accused-appellants by lighting the earthen
mud lamp does not deserve commendation, for the witnesses have
categorically deposed that they were able to see the accused persons and
the participation of the accused-appellants. Thus, despite the keen
scrutiny of their evidence, we are unable to put them in the category of so-
called ‘chance witnesses’ as has been nomenclatured by the learned senior
counsel for the appellants.
16. The next limb of submission of the learned senior counsel for the
appellants relates to acceptability and reliability of the dying
declaration recorded vide Ex. P-13. The criticism is advanced on the
foundation that it is absolutely vague. It is urged by him that the dying
declaration being absolutely infirm, it cannot be placed reliance upon and
once the dying declaration is discarded, a serious dent is created in the
prosecution story. To appreciate the said submission, we have carefully
scrutinized the contents of the dying declaration contained in Ex. P-13,
which has been recorded by the Additional Judicial Magistrate, First Class,
PW-18. In his testimony, he has categorically stated every aspect in
detail and nothing has been elicited in the cross-examination. At the time
of recording of the dying declaration, as the material would show, the
declarant was absolutely in a conscious state and there is an endorsement
in that regard by the treating doctor. The submission that the dying
declaration is eminently vague is neither correct nor is it based on any
material on record. On the scanning of the dying declaration, we find that
he has named Vutukuru Laxmaiah, A-1, Rayapu Sreenivasalu, A-2, Rayapu
Subbaiah, A-3, Meriga Ramanaiah, A-5, Amburi Raja, A-8, Rayapu Ravi, A-9,
and Rapayu Siddaiah. Thus, in the absence of any kind of infirmity or
inherent contradiction or inconsistency or any facet that would create a
serious doubt on the dying declaration, we are not inclined to discard it.
It is well settled in law that conviction undisputedly can be based on
dying declaration, if it is found totally reliable. In Mehiboobsab
Abbasabi Nadaf v. State of Karnataka[10], while discarding multiple dying
declaration, the Court held thus:-
“Conviction can indisputably be based on a dying declaration. But,
before it can be acted upon, the same must be held to have been
rendered voluntarily and truthfully. Consistency in the dying
declaration is the relevant factor for placing full reliance
thereupon. In this case, the deceased herself had taken contradictory
and inconsistent stand in different dying declarations. They,
therefore, should not be accepted on their face value. Caution, in
this behalf, is required to be applied.”
In Kashi Vishwanath v. State of Karnataka[11], a two-Judge Bench did
not place reliance on the dying declaration as there were three dying
declarations and they showed certain glaring contradictions.
17. At this juncture, it is worthy to note that the High Court has
acquitted A-4, A-8 and A-9 on the foundation that they have been falsely
implicated. Learned senior counsel for the appellants has contended that
when the appellate court had acquitted the said accused persons, there was
no warrant to sustain the conviction of other accused persons. On a
perusal of the judgment of appellate court, we find that the judgment of
acquittal has been reversed on the score that the names of A-8 and A-9 do
not find mention in the evidence of PWs 1 to 3. On similar basis, A-4 has
been acquitted. Suffice to mention here because the High Court has
acquitted A-4, A-8 and A-9, that would not be a ground to discard the
otherwise reliable dying declaration, for the evidence in entirety vividly
show the involvement of the accused-appellants.
18. The next plank of submission of the learned counsel for the
appellant, Vutukuru Lakshmaiah, appellant in Criminal Appeal No. 2047 of
2008, pertains to non-acceptance of plea of alibi. As is manifest, both
the Courts have elaborately dealt with it. As the judgment of the High
Court would reveal, a finding has been returned that there is no evidence
to the effect what is the distance between municipal office where the
Committee meeting was held and the place where the offence had been
committed; nothing has been brought on record to show that it was
impossible for one to reach the place of offence; that the authenticity of
the minutes book prepared under the signatures obtained have not been
maintained in discharge of public function because the Water Committee
constituted is not a statutory Committee. That apart, the law clearly
stipulates how a plea of alibi is to be established. In this context, we
may profitably reproduce a few passages from Binay Kumar Singh V. State of
Bihar[12]:-
“22. We must bear in mind that an alibi is not an exception (special
or general) envisaged in the Indian Penal Code or any other law. It is
only a rule of evidence recognised in Section 11 of the Evidence Act
that facts which are inconsistent with the fact in issue are relevant.
Illustration (a) given under the provision is worth reproducing in
this context:
“The question is whether A committed a crime at Calcutta on a
certain date; the fact that on that date, A was at Lahore is
relevant.”
23. The Latin word alibi means “elsewhere” and that word is used for
convenience when an accused takes recourse to a defence line that when
the occurrence took place he was so far away from the place of
occurrence that it is extremely improbable that he would have
participated in the crime. It is a basic law that in a criminal case,
in which the accused is alleged to have inflicted physical injury to
another person, the burden is on the prosecution to prove that the
accused was present at the scene and has participated in the crime.
The burden would not be lessened by the mere fact that the accused has
adopted the defence of alibi. The plea of the accused in such cases
need be considered only when the burden has been discharged by the
prosecution satisfactorily. But once the prosecution succeeds in
discharging the burden it is incumbent on the accused, who adopts the
plea of alibi, to prove it with absolute certainty so as to exclude
the possibility of his presence at the place of occurrence. When the
presence of the accused at the scene of occurrence has been
established satisfactorily by the prosecution through reliable
evidence, normally the court would be slow to believe any counter-
evidence to the effect that he was elsewhere when the occurrence
happened. But if the evidence adduced by the accused is of such a
quality and of such a standard that the court may entertain some
reasonable doubt regarding his presence at the scene when the
occurrence took place, the accused would, no doubt, be entitled to the
benefit of that reasonable doubt. For that purpose, it would be a
sound proposition to be laid down that, in such circumstances, the
burden on the accused is rather heavy. It follows, therefore, that
strict proof is required for establishing the plea of alibi.
[Emphasis supplied]
The said principle has been reiterated in Gurpreet Singh v. State of
Haryana[13], S.K. Sattar v. State of Maharashtra[14] and Jitender Kumar v.
State of Haryana[15].
19. In the instant case, the prosecution has been able to clearly
establish the presence of the accused-appellant A-1, appellant in Criminal
appeal No. 2047 of 2008, at the scene of occurrence. The initial onus put
on the prosecution having been discharged, the burden shifts to the accused
to establish the plea of alibi with certainty. As is evident from the
analysis made by the High Court that the plea of alibi of the accused-
appellant, A-1, could not be accepted as his presence has been proven. We
find the said opinion of the High Court is based on the material brought on
record and hence, there is no reason to differ with the same.
20. The last plank of submission of the learned senior counsel for the
appellants is that the appellants had no intention to commit the murder of
the deceased. It is also submitted by him that when death has occurred
three days after the incident, it is demonstrable that there was no
intention on the part of the accused-appellants to kill him. To appreciate
the said submission, we have perused the injury report. We find that there
are five stab injuries at different parts of the body i.e. near right
axilla, below the right axilla, over right hypochoncriam at mid clavicular
line, over the border of right scapula and over mid spinal region at the
level of 4th and 5th lumbar vertebra. The evidence on record shows that
the deceased was assaulted as he was a witness in Velongini Raja’s murder
case wherein the accused-appellant, A-1, was an accused. There are cases
where this Court has converted offence from 302 IPC to 304 Part I IPC,
regard being had to the genesis of occurrence or the nature of injuries.
It is because one of the relevant factors to gather the intention is the
nature of injury inflicted on the deceased. In the instant case,
considering the nature of injuries and the previous animosity, we are of
the considered opinion that it is not a fit case where the offence under
Section 302 IPC should be converted to Section 304 Part I IPC.
21. Consequently, we do not perceive any merit in these appeals and
accordingly, the same stand dismissed.
.............................J.
[Dipak Misra]
............................J.
[N.V. Ramana]
New Delhi
April 24, 2015
-----------------------
[1] (2002) 5 SCC 323
[2] (2007) 10 SCC 371
[3] (2008) 3 SCC 205
[4] AIR 1956 SC 116
[5] AIR 1930 PC 57
[6] AIR 1927 PC 44
[7] (2009) 12 SCC 546
[8] (1983) 3 SCC 327
[9] (2009) 9 SCC 719
[10] (2007) 13 SCC 112
[11] (2013) 7 SCC 162
[12] (1997) 1 SCC 283
[13] (2002) 8 SCC 18
[14] (2010) 8 SCC 430
[15] (2012) 6 SCC 204
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2047 OF 2008
Vutukuru Lakshmaiah ... Appellant
Versus
State of Andhra Pradesh ... Respondent
WITH
CRIMINAL APPEAL NO. 2052 OF 2008
CRIMINAL APPEAL NO. 205O OF 2008
J U D G M E N T
Dipak Misra, J.
The present appeals are directed against the judgment and order dated
22.03.2007 passed by the High Court of Andhra Pradesh in Criminal Appeal
No. 517 of 2005, whereby it has confirmed the judgment of conviction and
order of sentence passed by the learned Additional Sessions Judge, Nellore
in Sessions Case No. 365 of 1998 whereunder he had found the appellants
guilty of the offence under Sections 302 and 148 of the Indian Penal Code
(IPC) and sentenced each of them to suffer rigorous imprisonment for life
on the first score and imposed separate sentence under Section 148 IPC
with the default clause stipulating that all the sentences shall be
concurrent. Be it stated, the High Court has acquitted three of the
convicted persons.
2. Filtering the unnecessary details, the prosecution case is that the
deceased, Patrangi Ramanaiah, was a supporter of the Telugu Desam Party,
while accused Vutukuru Lakshmaiah, A-1, was the Councilor for Ward No. 16
of Nellore Municipality and belonged to the Congress Party. One Patrangi
Velongini Raja of Telugu Desam Party was allegedly murdered by accused, A-
1, and his brother and in the said prosecution the deceased and PW-1 were
witnesses.
3. On 14.05.1996 about 9.30 p.m., Pamula Ramanaiah, PW-1, and the
deceased were travelling on their scooter towards Akuthota Harijanawada,
and when they reached a sweet meat shop, Meriga Yedukondalu, A-4, and
Utukuru Seenaiah, A-6 (since deceased) attacked them as a result of which,
PW1, who was driving the scooter lost control of the scooter and both of
them fell down. As the prosecution story proceeds, Vutukuru Lakshmaiah, A-
1, Rayapu Srinivasulu, A-2, Rayapu Sivaiah, A-3, Meriga Ramaiah, A-5, and
Meriga Penchlaiah, A-7, stabbed the deceased multiple times with knives,
while A-4 and A-6 beat him with iron rods. A-2 then tried to stab PW-1 but
missed. Thereafter A-3 stabbed PW-1 with a knife on his left arm, but he
managed to escape and hid in the PWD office situated nearby.
4. As the prosecution case further unfurls, Pantrangi Venkateswarlu, PW-
2, and Ragutu Sreenivasulu, PW-3, who were returning from their work
witnessed the incident and after the assailants left the scene of crime,
they took the deceased to the Government Head Quarters Hospital, Nellore.
Being informed about the incident, the police immediately reached the scene
of incident where they found injured PW-1 who had returned to the scene of
occurrence and took him to the hospital, where Md. Kareemula, Head
Constable, PW-20, recorded the statement of PW-1, Ex. P-1, and it was
handed over to G. Srinivasa Rao, Sub-Inspector of Police, PW-21. Based on
the statement, Crime No. 57 of 1996 U/s. 147, 148, 324, 307 r/w 149 IPC was
registered and the investigation commenced. The deceased was subsequently
shifted to Apollo Hospital, Madras for better treatment. Meanwhile the II
Additional Judicial First Class Magistrate, Nellore, PW-18, recorded the
dying declaration of the deceased at the General Head Quarter Hospital,
which has been brought on record as Ex. P-13. On 15.05.1996, PW-21, visited
the scene of offence, prepared the panchanama, Ex. P-7, the rough sketch,
Ex. P-18, and recorded statements of PWs 1, 2, 3, 5, 6, 8, 12, 17. After
the receipt of intimation of death of the deceased on 18.05.1996, there was
alteration of the offence to Section 302 IPC and the investigation was
taken over by K. Veera Reddy, PW-22, the Inspector of police, who visited
the Apollo hospital, Madras and held inquest over the dead body of the
deceased in presence of G. Pulla Reddy, PW-18, and sent a requisition to
Dr. C. Manohar, PW-19, Assistant Professor, Forensic Medicine at Kilbank
Medical College, Chennai for postmortem examination who carried out the
autopsy over the dead body of the deceased on 18.05.1996 and opined vide
Ex.16, the postmortem report, that the cause of death was due to multiple
stab injuries. PW-22, the Investigating Officer, arrested A-2 to A-7 and
A9 on 28.05.1996 and at the instance of the arrested persons, except A-9,
the investigating agency recovered four knives and two iron rods. After
completion of the investigation, the chargesheet was placed before the
competent court and eventually the matter was tried by learned Additional
Sessions Judge. The accused persons took the plea of false implication and
the A-1, additionally took the plea of alibi.
5. The principal witnesses are, Pamula Ramanaiah, PW-1, Pantrangi
Venkateswarlu, PW-2, Ragutu Sreenivasulu, PW-3, II Additional Judicial
First Class Magistrate, Nellore, PW-18, and Dr. C. Manohar, PW-19. The
defence in support of its plea, examined 7 witnesses i.e. DW-1 to DW-7.
The learned trial Judge, after appreciating the entire evidence, both oral
and documentary, on record, especially the evidence of PW-1 to PW-3, and
the dying declaration, Ex.P-13, convicted A-1 to A-5 and A-7 to A-9 for the
offences punishable under Sections 148 and 302 IPC for causing death of
deceased Patrangi Ramanaiah, convicted A-2 to A-4 for the offence
punishable under Section 324 IPC and A5 for the offences punishable under
Sections 324 read with 149 IPC for causing injuries to PW-1.
6. Being aggrieved by the judgment of the trial Court, all the accused
persons preferred Criminal Appeal no. 517 of 2005 wherein the High Court,
after re-appreciating the evidence in entirety, affirmed the conviction and
sentence passed by the trial court in respect of the present appellants and
partly allowed the appeal thereby acquitting A4, A8 and A9 giving them the
benefit of doubt.
7. We have heard Mr. Nagendra Rai, learned senior counsel for the
appellants and Ms. June Chaudhary, learned senior counsel for the State.
8. Criticizing the judgment of conviction, it is submitted by Mr.
Nagendra Rai, learned senior counsel for the appellants that the evidence
adduced by the prosecution witnesses should have been discarded inasmuch as
their testimony is replete with contradictions and as the occurrence had
taken place during the night about 9.30 p.m. and there was no electric
supply and hence, it could not have been possible on the part of the
witnesses to see the accused-appellants by lighting the earthen mud lamp
with a match stick. Learned counsel would contend that they are chance
witnesses and their evidence really do not inspire confidence and, in fact,
when cautiously scrutinized, they deserve to be totally discarded. It is
urged by him that the dying declaration, Ex. P-13, does not inspire
confidence inasmuch as the allegations are omnibus in character and no
specific overt acts have been attributed to any of these appellants. It is
contended by him that when the High Court has found that A-4, A-8 and A-9
have been falsely implicated, it would have been appropriate on the part of
the High Court to hold that the present appellants also had been falsely
implicated in the case. It is canvassed by him that the appellant no. 1
was attending the Water Committee meeting on the date of occurrence and the
same had been established by bringing acceptable evidence on record by
citing witnesses and also by filing documents Ex. D-3 to D-8 which are
documents maintained by Nellore Municipality. It is his further submission
that learned trial Judge as well as the High Court has not given any
justifiable reason to disregard the evidence of DW-1 to DW-7. It is also
urged by him that the appellants could not have been convicted in aid of
Section 149 IPC as the charge framed against them was simplicitor Section
302 IPC; and even if Section 149 IPC can be resorted to, in the absence of
specific charge, the Court is required to see the circumstances, what is
the nature of offence committed. Alternatively, it is submitted by him
that even if the assault on the deceased is accepted, regard being had to
the absence of intention and the nature of injury suffered by the deceased
and death having taken place after three days, they may be liable for
conviction under Section 304 Part II IPC and not under Section 302 IPC. To
buttress the said submission, he has drawn inspiration from decisions in
State of Orissa v. Dibakar Naik[1], Sunder Lal v. State of Rajasthan[2] and
Marimuthu v. State of Tamil Nadu[3].
9. Ms. June Chaudhary, learned senior counsel appearing for State,
resisting the aforesaid arguments, contended that there is no reason to
discard the dying declaration as there is no infirmity in the same. It is
further urged by her that the testimony of all the witnesses are credible
and the contention that PW-2 and PW-3 are chance witnesses does not deserve
any acceptance. Learned senior counsel for the State would further submit
that though the charge has not been framed under Section 149 of the IPC,
there is no bar, regard being had to the evidence on record, to convict the
accused-appellants with the aid of the said provision. It is canvassed by
her that it is not a case for conversion of the offence, for it is squarely
a case under Section 302 IPC and not under Section 304 Part I or Part II of
the IPC.
10. First, we shall advert to the issue of non-framing of charge under
Section 149 IPC. While dealing with the said issue, in Willie (William)
Slaney v. State of M.P.[4] Vivian Bose, J., observed that every reasonable
presumption must be made in favour of the accused person; he must be given
the benefit of every reasonable doubt. The same broad principles of
justice and fair play must be brought to bear when determining a matter of
prejudice as in adjudging guilt. The learned Judge proceeded to state that
all said and done, the Court is required to see whether the accused had a
fair trial, whether he knew what he was being tried for, whether the main
facts sought to be established against him were explained to him fairly and
whether he was given a full and fair chance to defend himself. Thereafter,
Bose, J. proceeded to observe thus:-
“In adjudging the question of prejudice the fact that the absence of a
charge, or a substantial mistake in it, is a serious lacuna will
naturally operate to the benefit of the accused and if there is any
reasonable and substantial doubt about whether he was, or was
reasonably likely to have been, misled in the circumstances of any
particular case, he is as much entitled to the benefit of it here as
elsewhere; but if, on a careful consideration of all the facts,
prejudice, or a reasonable and substantial likelihood of it, is not
disclosed the conviction must stand; also it will always be material
to consider whether objection to the nature of the charge, or a total
want of one, was taken at an early stage.
If it was not, and particularly where the accused is defended by
counsel (Atta Mohammad v. King-Emperor[5]) it may in a given case be
proper to conclude that the accused was satisfied and knew just what
he was being tried for and knew what was being alleged against him and
wanted no further particulars, provided it is always borne in mind
that “no serious defect in the mode of conducting a criminal trial can
be justified or cured by the consent of the advocate of the accused”
(Abdul Rahman v. King-Emperor[6]).
But these are matters of fact which will be special to each
different case and no conclusion on these questions of fact in any one
case can ever be regarded as a precedent or a guide for a conclusion
of fact in another, because the facts can never be alike in any two
cases “however” alike they may seem. There is no such thing as a
judicial precedent on facts though counsel, and even Judges, are
sometimes prone to argue and to act as if there were.”
Chandrasekhara Aiyar, J., in his concurring opinion stated thus:-
“A case of complete absence of a charge is covered by Section 535,
whereas an error or omission in a charge is dealt with by Section 537.
The consequences seem to be slightly different. Where there is no
charge, it is for the court to determine whether there is any failure
of justice. But in the latter, where there is mere error or omission
in the charge, the court is also bound to have regard to the fact
whether the objection could and should have been raised at an earlier
stage in the proceedings.”
After so stating, the learned Judge opined that generally in cases of
omission to frame a charge is not per se fatal. Eventually, he ruled
thus:-
“Sections 34, 114 and 149 of the Indian Penal Code provide 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 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 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.”
11. After 1973 Code came into existence, two-Judge Bench in Annareddy
Sambasiva Reddy v. State of A.P.[7], relying on the principles enunciated
in Willie (William) Slaney (supra), has opined that the legal position
stated by the larger Bench would hold good after enactment of Code of
Criminal Procedure, 1973 as well in the light of Sections 215, 216, 218,
221 and 464 contained therein. Proceeding further, the Court has ruled:-
“Is non-mentioning of Section 149 in Charge 4 and Charge 5 a
fundamental defect of an incurable illegality that may warrant setting
aside the conviction and sentence of the appellants? We do not think
so. Non-framing of a charge under Section 149 IPC, on the face of the
charges framed against the appellants would not vitiate their
conviction; more so when the accused have failed to show any prejudice
in this regard. The present case is a case where there is mere
omission to mention Section 149 in Charges 4 and 5 which at the
highest may be considered as an irregularity and since the appellants
have failed to show any prejudice, their conviction and sentence is
not at all affected. Tenor of cross-examination of PW 1 and PW 3 by
the defence also rules out any prejudice to them.”
12. Keeping in view the aforesaid exposition of law, we are required to
see whether in the present case, the tests are satisfied. On a perusal of
the evidence on record, we find the facts and circumstances clearly bring
out that there was an unlawful assembly. Each of the accused person was
very well aware that they are tried for being a part of the assembly which
was armed with weapons and hence, it was unlawful. On a close scrutiny of
the evidence on record, it is difficult to hold that any prejudice has been
caused to the accused appellants. Thus, the said submission pales into
insignificance.
13. The next contention of the learned senior counsel for the appellants
is that the prosecution witnesses are chance witnesses, for there is no
occasion on their part to be at the scene of crime. Dealing with the
concept of chance witness, a two-Judge Bench in Rana Pratap and others v.
State of Haryana[8], has observed that:-
“We do not understand the expression “chance witnesses”. Murders are
not committed with previous notice to 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 brothel,
prostitutes and paramours are natural witnesses. If murder is
committed on 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
witnesses” is borrowed from countries where every man’s home is
considered his castle and every one must have an explanation for his
presence elsewhere or in another man’s castle. It is a most unsuitable
expression in a country whose people are less formal and more casual.
To discard the evidence of street hawkers and street vendors on the
ground that they are “chance witnesses”, even where murder is
committed in a street, is to abandon good sense and take too shallow a
view of the evidence.”
14. In Jarnail Singh v. State of Punjab[9], a two-Judge Bench opined that
the evidence of a chance witness requires a very cautious and close
scrutiny and as such a witness must adequately explain his presence at the
place of occurrence and if his presence at the place of incident remains
doubtful, then his version should be discarded.
15. In the case at hand, the prosecution has been able to establish the
presence of the witnesses at the place of occurrence. The plea that there
was no electricity and, therefore, it would not have been possible on the
part of the witnesses to see the accused-appellants by lighting the earthen
mud lamp does not deserve commendation, for the witnesses have
categorically deposed that they were able to see the accused persons and
the participation of the accused-appellants. Thus, despite the keen
scrutiny of their evidence, we are unable to put them in the category of so-
called ‘chance witnesses’ as has been nomenclatured by the learned senior
counsel for the appellants.
16. The next limb of submission of the learned senior counsel for the
appellants relates to acceptability and reliability of the dying
declaration recorded vide Ex. P-13. The criticism is advanced on the
foundation that it is absolutely vague. It is urged by him that the dying
declaration being absolutely infirm, it cannot be placed reliance upon and
once the dying declaration is discarded, a serious dent is created in the
prosecution story. To appreciate the said submission, we have carefully
scrutinized the contents of the dying declaration contained in Ex. P-13,
which has been recorded by the Additional Judicial Magistrate, First Class,
PW-18. In his testimony, he has categorically stated every aspect in
detail and nothing has been elicited in the cross-examination. At the time
of recording of the dying declaration, as the material would show, the
declarant was absolutely in a conscious state and there is an endorsement
in that regard by the treating doctor. The submission that the dying
declaration is eminently vague is neither correct nor is it based on any
material on record. On the scanning of the dying declaration, we find that
he has named Vutukuru Laxmaiah, A-1, Rayapu Sreenivasalu, A-2, Rayapu
Subbaiah, A-3, Meriga Ramanaiah, A-5, Amburi Raja, A-8, Rayapu Ravi, A-9,
and Rapayu Siddaiah. Thus, in the absence of any kind of infirmity or
inherent contradiction or inconsistency or any facet that would create a
serious doubt on the dying declaration, we are not inclined to discard it.
It is well settled in law that conviction undisputedly can be based on
dying declaration, if it is found totally reliable. In Mehiboobsab
Abbasabi Nadaf v. State of Karnataka[10], while discarding multiple dying
declaration, the Court held thus:-
“Conviction can indisputably be based on a dying declaration. But,
before it can be acted upon, the same must be held to have been
rendered voluntarily and truthfully. Consistency in the dying
declaration is the relevant factor for placing full reliance
thereupon. In this case, the deceased herself had taken contradictory
and inconsistent stand in different dying declarations. They,
therefore, should not be accepted on their face value. Caution, in
this behalf, is required to be applied.”
In Kashi Vishwanath v. State of Karnataka[11], a two-Judge Bench did
not place reliance on the dying declaration as there were three dying
declarations and they showed certain glaring contradictions.
17. At this juncture, it is worthy to note that the High Court has
acquitted A-4, A-8 and A-9 on the foundation that they have been falsely
implicated. Learned senior counsel for the appellants has contended that
when the appellate court had acquitted the said accused persons, there was
no warrant to sustain the conviction of other accused persons. On a
perusal of the judgment of appellate court, we find that the judgment of
acquittal has been reversed on the score that the names of A-8 and A-9 do
not find mention in the evidence of PWs 1 to 3. On similar basis, A-4 has
been acquitted. Suffice to mention here because the High Court has
acquitted A-4, A-8 and A-9, that would not be a ground to discard the
otherwise reliable dying declaration, for the evidence in entirety vividly
show the involvement of the accused-appellants.
18. The next plank of submission of the learned counsel for the
appellant, Vutukuru Lakshmaiah, appellant in Criminal Appeal No. 2047 of
2008, pertains to non-acceptance of plea of alibi. As is manifest, both
the Courts have elaborately dealt with it. As the judgment of the High
Court would reveal, a finding has been returned that there is no evidence
to the effect what is the distance between municipal office where the
Committee meeting was held and the place where the offence had been
committed; nothing has been brought on record to show that it was
impossible for one to reach the place of offence; that the authenticity of
the minutes book prepared under the signatures obtained have not been
maintained in discharge of public function because the Water Committee
constituted is not a statutory Committee. That apart, the law clearly
stipulates how a plea of alibi is to be established. In this context, we
may profitably reproduce a few passages from Binay Kumar Singh V. State of
Bihar[12]:-
“22. We must bear in mind that an alibi is not an exception (special
or general) envisaged in the Indian Penal Code or any other law. It is
only a rule of evidence recognised in Section 11 of the Evidence Act
that facts which are inconsistent with the fact in issue are relevant.
Illustration (a) given under the provision is worth reproducing in
this context:
“The question is whether A committed a crime at Calcutta on a
certain date; the fact that on that date, A was at Lahore is
relevant.”
23. The Latin word alibi means “elsewhere” and that word is used for
convenience when an accused takes recourse to a defence line that when
the occurrence took place he was so far away from the place of
occurrence that it is extremely improbable that he would have
participated in the crime. It is a basic law that in a criminal case,
in which the accused is alleged to have inflicted physical injury to
another person, the burden is on the prosecution to prove that the
accused was present at the scene and has participated in the crime.
The burden would not be lessened by the mere fact that the accused has
adopted the defence of alibi. The plea of the accused in such cases
need be considered only when the burden has been discharged by the
prosecution satisfactorily. But once the prosecution succeeds in
discharging the burden it is incumbent on the accused, who adopts the
plea of alibi, to prove it with absolute certainty so as to exclude
the possibility of his presence at the place of occurrence. When the
presence of the accused at the scene of occurrence has been
established satisfactorily by the prosecution through reliable
evidence, normally the court would be slow to believe any counter-
evidence to the effect that he was elsewhere when the occurrence
happened. But if the evidence adduced by the accused is of such a
quality and of such a standard that the court may entertain some
reasonable doubt regarding his presence at the scene when the
occurrence took place, the accused would, no doubt, be entitled to the
benefit of that reasonable doubt. For that purpose, it would be a
sound proposition to be laid down that, in such circumstances, the
burden on the accused is rather heavy. It follows, therefore, that
strict proof is required for establishing the plea of alibi.
[Emphasis supplied]
The said principle has been reiterated in Gurpreet Singh v. State of
Haryana[13], S.K. Sattar v. State of Maharashtra[14] and Jitender Kumar v.
State of Haryana[15].
19. In the instant case, the prosecution has been able to clearly
establish the presence of the accused-appellant A-1, appellant in Criminal
appeal No. 2047 of 2008, at the scene of occurrence. The initial onus put
on the prosecution having been discharged, the burden shifts to the accused
to establish the plea of alibi with certainty. As is evident from the
analysis made by the High Court that the plea of alibi of the accused-
appellant, A-1, could not be accepted as his presence has been proven. We
find the said opinion of the High Court is based on the material brought on
record and hence, there is no reason to differ with the same.
20. The last plank of submission of the learned senior counsel for the
appellants is that the appellants had no intention to commit the murder of
the deceased. It is also submitted by him that when death has occurred
three days after the incident, it is demonstrable that there was no
intention on the part of the accused-appellants to kill him. To appreciate
the said submission, we have perused the injury report. We find that there
are five stab injuries at different parts of the body i.e. near right
axilla, below the right axilla, over right hypochoncriam at mid clavicular
line, over the border of right scapula and over mid spinal region at the
level of 4th and 5th lumbar vertebra. The evidence on record shows that
the deceased was assaulted as he was a witness in Velongini Raja’s murder
case wherein the accused-appellant, A-1, was an accused. There are cases
where this Court has converted offence from 302 IPC to 304 Part I IPC,
regard being had to the genesis of occurrence or the nature of injuries.
It is because one of the relevant factors to gather the intention is the
nature of injury inflicted on the deceased. In the instant case,
considering the nature of injuries and the previous animosity, we are of
the considered opinion that it is not a fit case where the offence under
Section 302 IPC should be converted to Section 304 Part I IPC.
21. Consequently, we do not perceive any merit in these appeals and
accordingly, the same stand dismissed.
.............................J.
[Dipak Misra]
............................J.
[N.V. Ramana]
New Delhi
April 24, 2015
-----------------------
[1] (2002) 5 SCC 323
[2] (2007) 10 SCC 371
[3] (2008) 3 SCC 205
[4] AIR 1956 SC 116
[5] AIR 1930 PC 57
[6] AIR 1927 PC 44
[7] (2009) 12 SCC 546
[8] (1983) 3 SCC 327
[9] (2009) 9 SCC 719
[10] (2007) 13 SCC 112
[11] (2013) 7 SCC 162
[12] (1997) 1 SCC 283
[13] (2002) 8 SCC 18
[14] (2010) 8 SCC 430
[15] (2012) 6 SCC 204
