Paragraph numbers below are the court’s original numbering, recovered from the source text.
13. The question to be considered is : is the High Court justified in reversing the judgment of acquittal and convicting the appellants for the offence punishable under Section 302 A read with Section 149, IPC .
14. The prosecution tendered PW-2, PW-3, PW-4, PW- 5, PW-6, PW-7, PW-8 and PW-9 as eye-witnesses in support of its case. The witnesses other than PW-2, PW-3 and PW-4 8 did not support prosecution case and they were declared hostile witnesses. PW-2 is son of D-1. The Trial Court did not find his evidence worthy of acceptance as his evidence was found to be inconsistent with the evidence of PW-3, PW-10 and PW-20. The trial court also noticed material contradictions in C his deposition. In cross examination he was completely shaken in respect of his statement in chief that A-2, A-3, A-7, A-17, A- 60 and some others hatched the plan to do away with the deceased persons suspecting them to be sorcerers. He admitted in the cross examination that he was not aware as to who brought D-2 and D-5 to the scene of offence. The Trial D Court meticulously considered the evidence of PW-2 and gave the following reasons in reaching the conclusion that his evidence is full of embellishments and improvements : "No doubt, P.W. 2 has alleged in his chief-examination that :::i ….. E .ore ,sb~~jpynd A.2, A.3, A.7, A.17, A.60 and someothers hatching a plan to do away the deceased persons ton ,s~~§~et;Htig'vthem to be sorcerers but he did not state the same before the Investigating Officer-P.W. 20 in his 19q01 qt~tEjw~nk~'~ t1~l ~r .. P.C. He has a!so ?enied t~e said 1 F lsi1i ~Rri~ Pfn'tY~19r~c1eol'1 his cross-exa~mat1on. Dunn_g the cross-~xammaPion, P"-.w. 2 has admitted that he did not know about· the approach of any of the accused persons eno—t9Jhoi!§1 ~flv~ rlli"!n9lQgiJltwJt~kThimmapur (v) in order to er!1-~.~~mHf~cth~1sgr~JE3~~· ,PF.;1YW.ip~6hes deposed in his chief- 8 G lo 1uoeK~mi~:it~~kl~1lflaj1iJc?.) ~~l·s~~ .. \<.~i1..6, ,A.9 to A.12, A.14, A.41, A.48, A.59, A.68 and A:~i?e~ffi~gh~t the deceased persons and P .Ws. 6 and 7 forcibly from their respective huoJ f.fu>~~0Blilt d~riAgrtflS:ier0~-e~anninatt0a 1plpea::ould not say gnit:)i'l@~e bfffi.l~l!lfitHEPd~as'E:fcdi&J.ppaWc!inUwBeaad2Narl5amma to H H ~0£ nftii~E:l?eeftl3n(if !€1tferici1Ntf:i0l!~h:itkdmittettty ,ethe;yavy~e his MD. ANKOOS & ORS. v. THE PUBLIC PROSECUTOR, 633 HIGH COURT OF A.P. [RM. LODHA, J.] neighbours. He has also admitted at the end of his cross- . J examination that A.10 did not take the deceased, mother of P.W. 2 to the scene of incident from his house. As per his evidence in the cross-examination, by the time he reached the scene of offence, he found gathering of 60 to 70 persons and that only 25 persons w~re near the B deceased persons and others were at a distance. This version creates doubt about his version given in the chief- examination with regard to his witnessing of forcibly taking i the deceased persons to the scene of offence. P.W. 2 has given the duration of the incident as 9.00 p.m. to 3.00 a.m. c and his presence at the scene althrough. As per his version, he did not go to Police Station on the night of the incident due to fear but went thereon the following morning on 3.8.2k at 5.00 a.m. and informed about the incident to the SHO and returned back to his village. If this version is D taken to be true, it can be said that the police received the information about the incident at 5.00 a.m. for the first time on 3.8.2k but not at 6.30 a.m. on the said day through PW- 1 by way of his complaint, ex. P .1. But contrary to the evidence of P.W. 2, P.W. 10 has deposed that on the night E of the incident itself at about 2.00 a.m. P.W. 2 went to P.W. 10, engaged his jeep, arrived to Thimmapur (v) at about 6.00 a.m. and then proceeded to Sangem P.S. and lodged a written complaint.
In fact, P.W. 2 has denied about it to …. a suggestion given by the learned defence counsel in his cross-examination. P.W. 10 in his cross-examination also F deposed that P.W. 2 informed him that he came to know about the incident on that night. If the version of P.W. 10 is taken to be true, the entire evidence of P.W. 2 has to be jettisoned with regard to his actual witnessing of the incident. P.W. 2 has deposed that he has given names of G the culprits who have committed the offences to the A.S.I "I and that he has noted down the same and obtained signature of P.W. 2. But the C.I. of Police-P.W. 20 has deposed that on the next day of the incident i.e. on 4.8.2k he has recorded the statements of witnesses including P.W. 2 and for the first time came to know about the names of accused persons. It is to be noted that as per the evidence of P.W.2 and P.W.20, the C.I. of Police visited Thimmapur (v) at 9.00 a.m. on 3.8.2k and that at that time, P.W. 2 was also present in the village. This aspect creates doubt about the identity of the accused persons during the course of investigation conducted by P.W.20."
15. The Trial Court was also not convinced to accept the c testimony of PW-3 (husband of D-5) as his evidence was inconsistent on material points with the evidence of PW-2. The Trial Court pointed out the material contradictions in the deposition of PW-3 thus : "P.W. 3 is husband of the deceased Uppakanthamma. He has given time of the incident as 9.00 p.m. which is contrary to the time noticed in Ex. P.1as1.00 a.m. As per the 'f evidence of P.W. 3, A.1, A.2, A.3, A.5, A.6, A.7, A.10 to A.13, A.34, A.37 and A.54 took his deceased wife forcibly from his house to the scene of incident. Though P.W. 2 has alleged in his chief-examination about his witnessing the fact of taking the deceased Uppakanthamma from her house, he did not give names of A-1, A.7, A.13, A.34 and A.37 and A.54. Though P.W. 3 alleged that A-9 beat his ,_ deceased wife with a stick on her head and she sustained bleeding injury and that A. 71 sprinkled chilli powder on it. p_.W. 2 did not whisper about it in his entire evidence. P.W. 2 has deposed that A.13, A.20 and A.65 brought kerosene drum from the 'house of A.19 and that A.1 O sprinkled kerosene on the deceased persons but P.W. 3 has given the names of the accused persons noted above as to have brought the kerosene drum and that A.13 poured kerosene ,.. .,. on the deceased. Though P.W. 3 has stated that A.17 supervised the whole affair, P.W. 2 did not state about it. These are material contradictions in the evidence of P .Ws. MD. ANKOOS & ORS. v. THE PUBLIC PROSECUTOR, 635 HIGH COURT OF AP. [RM. LODHA, J.] 2 and 3 going to very root of the case ……… j As per the evidence of P.W. 3, he was with his deceased wife Appakanthamma at the scene of incident till she was shifted to MGM Hospital, Warangal for treatment and that although she was conscious and did not B give names of the persons who poured kerosene on her body and set on fire. Evidently, she did not give names of any of the accused persons as responsible for causing bum injuries to her in her dying declaration dt. 3.8.2k vide Ex. P. 36." c
16. As regards PW-4 who is son of D-3 and D-4, the Trial Court found his evidence self-contradictory and also doubted his witnessing the incident. After scanning his evidence, the Trial Court gave the following reasons in not accepting the evidence of PW-4: "P.W. 4 is son of deceased K. Yellaiah and K. y Rajamma. His evidence is self-contradictory because during his chief-examination he has deposed that he saw A.1, A.5, A.7, A.8, A.10 to A.15, A.17 and A. 41 while beating his parents but in his cross-examination, he has deposed that by the time, he reached the scene of incident, his parents were already lying unconscious and were surrounded by 20 persons. Even at the end of his chief-examination itself, he has deposed that by the time he reached the scene of offence, he found the other accused persons, except the accused persons noted above, were not present there. Admittedly, when his parents were allegedly taken to the scene of offence forcibly, they were sleeping in the front portion of the house whereas PW-4 was sleeping inside the house. This aspect G creates doubt about his witnessing the incident. As per his -4 evidence, he heard a commotion at about 12.30 midnight but as per the evidence of P.Ws. 2 and 3, the incident commenced at 9.00 p.m. ·itself, P.W. 4 has alleged that A.5, A.12 and A.13 only brought kerosene drum from the house of A.19 which is contradictory to the versions given by P .Ws. 2 and 3 noted above.
17. Although PW-6 and PW-7 are injured witnesses and, B according to prosecution, they were beaten at the scene of offence by the villagers but in their deposition, they stated that they went to the scene of occurrence voluntarily. Neither of them named any of the accused for the injuries sustained by them. PW-8 is daughter of D-3 and D-4 and she deposed that she did not witness the incident and came to know about the same c on the next day through the wife of PW-4. PW-9 deposed that at midnight he heard the commotion and rushed to the scene of offence but he returned back to his house after somebody beat him and. he could not identify as it was dark night.
18. The Trial Court, thus, held that PW-5 to PW-9 have not supported the case of prosecution at all. As a matter of fact they were declared hostile witnesses by the prosecution.
19. Insofar as High Court is concerned, it accepted the E view of the Trial Court that offence punishable under Section 148, IPC is not made out. The High Court affirmed the acquittal of the accused under Section 148, IPC holding thus : "Coming to charge No. 1, leveled against accused 1 to 15, 17 to 59 (except accused No. 21) and 62 to 78, for the offence punishable under Section 148 l.P.C., we are of the view that though the act of rioting is made out, regarding the persons and the weapons of offence said to have been used by them, there is no evidence about their presence much less usage of deadly weapons. The evidence of P.Ws. 2 to 4 is also totally silent on this. So, in the absence of main ingredient i.e., the presence of deadly weapons, the act of the accused, even assuming that the same is made out, cannot be brought into the ambit of Section 148 l.P.C. Accordingly, the acquittal of the accused recorded by the trial court for the offence under MD. ANKOOS & ORS. v. THE PUBLIC PROSECUTOR, 637 HIGH COURT OF A.P. [R.M. LODHA, J.] Section 148 l.P.C., is confirmed."
20. With regard to the offence punishable under Section 448, IPC, High Court held that the evidence was lacking as to who actually trespassed into the houses of the deceased and forcibly dragged them out of their respective house. The High B Court, accordingly, affirmed the finding of the Trial Court acquitting the accused for the offence under Section 448, IPC.
21. However, the High Court held that PW-2 to PW-4 were reliable being eye-witnesses of truth. The High Court held that the contradictions in the evidence of PW-2 to PW-4 and the c evidence of Investigating Officer (PW-20) about the presence of accused cannot be accepted as the evidence of PW-20 is liable to be discarded. This opinion was formed by the High Court by perusal of the statements of PW-2 to PW-4 recorded under Section 161(3), Cr.P.C. after calling for the case diary D in exercise of the power of the Court under Section 172(2) of Code of Criminal Procedure.
22. In the first place, High Court erred in accepting the evidence of PW-2 to PW-4 without adequately meeting the reasons given by the Trial Court for not accepting their evidence. Moreover, we considered the evidence of these witnesses ourselves and we find that the view of the Trial Court in not accepting the evidence of PW-2, PW-3 and PW-4 cannot be said to be erroneous. Secondly, and more importantly, the High Court committed a serious error of law in discarding the evidence of PW-20 on the basis of case diary summoned in exercise of power conferred on the Court under Section 172 of the Code.
23. Section 172 of Code of Criminal Procedure reads thus G -'I (1) "Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth th~ time at which the information reached him, the time at which he began and closed his investigation, the ,,,._ place, or places visited by him, and a statement of the circumstances ascertained through his investigation. (2) Any Criminal Court may send for the police diaries of the case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. c (3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purposes of contradicting such police officer, the provisions of Sec. 161 or Sec. 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872) shall apply."
24. A criminal court can use the case diary in the aid of any inquiry or trial but not as an evidence. This position is made clear by Section 172(2) of the Code. Section 172(3) places restrictions upon the use of case diary by providing that accused has no right to call for the case diary but if it is used …_ by the police officer who made the entries for r~freshing his memory or if the Court uses it for the purpose of contradicting …, such police officer, it will be so done in the manner provided in Section 161 of the Code and Section 145 of the Evidence Act. Court's power to consider the case diary is not unfettered. In light of the inhibitions contained in Section 172(2), it is not open JI G to the Court to place reliance on the case diary as a piece of evidence directly or indirectly. This Court had an occasion to .,.._ 'f' consider Section 172 of the Code vis-a-vis Section 145 of the Evidence Act and Section 162 of the Code in the case of Mahab.ir Singh v. State of Haryana2 and it was stated as MD.
ANKOOS & ORS. v. THE PUBLIC PROSECUTOR, 639 HIGH COURT OF AP. [R.M. LODHA, J.) follows: "14. A reading of the said sub-sections makes the position clear that the discretion given to the court to use such diaries is only for aiding the court to decide on a point. It is made abundantly clear in sub-section (2) itself that the B' court is forbidden from using the entries of such diaries as evidence. What cannot be used as evidence against the accused cannot be used in any other manner against him. If the court uses the entries in a case diary for contradicting a police officer it should be done only in the c manner provided in Section 145 of the Evidence Act i.e. by giving the author of the statement an opportunity to explain the contradiction, after his attention is called to that part of the statement which is intended to be so used for contradiction. In other words, the power conferred on the court for perusal of the diary under Ssction 172 of the 0 C0de is not intended for explaining a contradiction which the defence has winched to the fore through the channel permitted by law. The interdict contained in Section 162 of the Code, debars the court from using the power under Section 172 of the Code for the purpose of explaining the E contradiction."
25. The High Court, however, did not keep the aforesaid legal position in mind and erred in placing reliance upon the evidence of PW-2 to PW-4 by verifying their statements recorded under Section 161 (3) of the Code from the case diary. It is here that the High Court fell into grave error in using the statements of PW-2 to PW-4 recorded under section 161(3) of the Code; particularly for contradicting PW-20 without affording any opportunity to him to explain the position. The G course adopted by the High Court is impermissible in law as -J.: Section 172 of the Code is not meant to be used for the purpose it has been used by the High Court i.e. to overcome the contradictions pointed out by the defence. Ought we know 2. c2001) 1 sec 148 what would have been the view of the High Court with regard to the evidence of PW-2 to PW-4, had it not considered the -\ … statements of these witnesses under Section 161(3) of the Code. As a matter of fact, High Court heavily relied upon the deposition of PW-2 to PW-4 in upsetting the judgment of acquittal passed by the Trial Court. This is what the High Court held: "Accused 2, 3, 5, 6, 9, 10, 11, 12, 14, 41and48 were identified by P.W.2; Accused 1, 2 ,3,5,6, 7, 10, 11, 12, 13, c 34 and 37 were identified by P.W.3; Accused 1, 5, 7, 8, 10, 11, 12, 13,14, 15, 17, 41 and 48 were identified by P.W.4; and Accused 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 1 4, 15, 17, 34, 37, 41 and 48 were commonly identified by P.Ws. 2 to 4."
26. In our view, as a result of aforenoticed error of law, judgment of the High Court is rendered unsustainable.
27. Another grave illegality vitiating the judgment of the High '1 Court is conviction of the appellants under Section 302 read …. with Section 149 IPC even though appellants have been c:. acquitted of the offence under Section 148 IPC.
28. All 77 accused, vide charge No. 1, were charged to the effect that they were members of the unlawful assembly and …. in prosecution of the common object of such assembly, to commit the murder of 0-1, D-2, D-3, D-4 and D-5, committed the offence of rioting by pouring kerosene and thereby committed an offence punishable under Section 148 IPC vide ~harge No.4, all the accused were charged that they committed murder by intentionally causing the death of 0-1 to 0-5 and thereby committed an offence punishable under Section 302 IPC. The Trial Court held that neither offence under Section 148 IPC nor under Section 302 IPC was established against the accused beyond any reasonable doubt. The High Court affirmed the finding of the Trial Court about the acquittal of the appellants under Section 148 IPC but convicted them for the :::• MD. ANKOOS & ORS. v. THE PUBLIC PROSECUTOR, 641 HIGH COURT OF AP. [RM.
LODHA, J.] offence punishable under Section 302 read with Section 149 A …. IPC without their being any charge to this effect. Section 149 IPC creates constructive liability i.e. a person who is a member of the unlawful assembly is made guilty of the offence committed by another member of the same assembly in the circumstances mentioned in the Section, although he may have had no intention to commit that offence and had done no overt act. except his presence in the assembly and sharing the common object of that assembly. The legal position is also fairly well settled that because of a mere defect in language or in the narration or in form of the charge, the conviction would not be c rendered bad if accused has not been affected thereby. But in a case such as the present one where the appellants have been expressly charged for the offence punishable under Section 148 IPC and have been acquitted thereunder, they cannot be legally convicted for the offence punishable under Section 302 read with Section 149 IPC.
It is so because the offence of rioting must occur when members are charged with murder as the common object of the unlawful assembly. Section 148 IPC creates liability on persons armed with deadly weapons and is a distinct offence and there is no requirement in law that members of unlawful assembly have also to be charged under Section 148 IPC for legally recording their conviction under Section 302 read with Section 149 IPC. However, where an accused is charged under Section 148 IPC and acquitted, conviction of such accused under Section 302 read with Section 149 IPC could not be legally recorded. We find support from a Four Judge Bench decision of this Court in the case of Mahadev Sharma v. State of Bihaf3 wherein this Court held thus: " ………….. Of course, if a charge had been framed under G -I; s.147 or s.148 and that charge had failed against any of the accused then s.149 could not have been used against him. The area which is common to ss.147 and 149 is the substratum on which different degrees of liability are built .— and there cannot be a conviction with the aid of s.149 when there is no evidence of such substratum." -\ –
29. In view of the aforesaid legal position, the appellants having been acquitted under Section 148 IPC by the Trial Court as well as the High Court, they could not have been legally convicted by the High Court under Section 302 read with Section 149 IPC.
30. It is also pertinent to mention that the prosecution came out with the case that the accused committed house trespass c by entering into houses of D-1 to D-5 and dragged them out with an intent to kill. Accordingly, all accused persons were j_ charged under Section 448 IPC but all of them have been acquitted as prosecution faileu to establish the said offence against them. This again dislodges the material aspect of the prosecution case. Be that as it may, the view of the Trial Court in passing the judgment of acquittal is a possible view and cannot be said to be palpably wrong on facts or based on erroneous view of law and, therefore, High Court was not justified in interfering with the judgment of acquittal. It is true that five persons were done to death in the dead of night in a ghastly manner and the whole incident is quite ~hocking but in the absence of cogent and reliable evidence against the appellants connecting them to crime, view of the Trial Court in passing the judgment of acquittal cannot be said to be unjustified.
31. In the result and for the reasons indicated above, the appeal deserves to be allowed and is allowed. The judgment of the High Court passed on October 4, 2007 is set aside. The appellants shall be released forthwith, if not required in any other case. N.J. Appeal allowed. ~ ,,.• •,L