Basi Reddy, J.
1. In Sessions Case No. 11 of 1961 on the file of the Court of Session, Guntur Division, four persons by names V. China Venkata Reddy, V. Peda Venkata Reddy, V. Ratna Reddy and G. Ayyapa Reddy (hereinafter referred to as A-l, A-2, A-3 and A-4 respectively) were fried by the Additional Sessions Judge on the following charges:--
(1) A-l A-2 and A-3 under Section 302 read with Section 34 I. P. C. for having, conjointly and in furtherance of their common intention, caused the death of one B. Sambi Reddy (who will be referred to as the deceased) on November 2, 1960 at about 3 p.m. near the Nambur Feeder Road by chafing him upto a distance of about 160 yards when ho jumped off the bus in which he was traveling and ran for his life, and hacking him down with deadly weapons;
(2) A-2 under Section 307 I. P. C. for having in the course of the same transaction attemptedto commit the murder of P. W. 2 (T. Krishna Reddy) by attacking him first with a knife and then with an axe in the bus in which be was travelling along with the deceased;
(3) A-4 under Section 307, I. P. C. for having in the course of the same transaction attempted lo murder P. W. 2 by attacking him with an axe;
(4) A-2 under Section 324 I. P. C. for having in the course of the same transaction caused simple bun to P. W. 1 (T. Sambi Reddy) who was also travelling in the same bus, by stabbing him on his neck with a knife; and
(5) A-4 under Section 302 read with Section 109 I. P. C. for having in the course of the same transaction aided and abetted A-l, A-2 and A-3 in the commission of the murder of the deceased by means of various acts, namely by accompanying A-1 to A-3 and getting into the bus in which the deceased and P. Ws. 1 and 2 were travelling; and by attacking P. W. 2 and preventing him going to the rescue of the deceased.
2. It may be mentioned here that the charges were not accurately or artistically framed; in particular, on the averments in charge No. 5, A-4 could well have been charged under Section 302 read with Section 34 I. P. C. along with A-l to A-3. That, however, is of little consequence in this case.
3. The learned Additional Sessions Judge acquitted A-l and A-2 completely of all the charges. He convicted A-3 alone under charge No. 1 -for an offence under Section 302 read with Section 34 I. P. C. and sentenced him to imprisonment for life. He convicted A-4 on charge No. 5 for having abetted the murder and sentenced him also to suffer imprisonment for life. A-4, was however, acquitted of charge No. 3 for having attempted to murder P. W. 2.
4. Criminal Appeal No. 284 of 1961 is by A-3 against his conviction and sentence. Similarly, Criminal Appeal No. 285 of 1961 is by A-4. Criminal Appeal No. 342 of 1961 is by the State Government against the acquittal of A-l and A-2 of the charges on which they were tried and of A-4 on charge No. 3 i.e., under Section 307 I. P. C. tor having attempted to murder P. W. 2. Criminal revision Case No. 361 of 1561 is by the State for the enhancement of the sentence of imprisonment for life passed on A-3 and A-4 to one of death, having regard to the 'diabolic and daring nature of the offence.'
5. All these matters will be dealt with in a common judgment- In the first place it is necessary to set out the case for the prosecution in detail.
6. First, as regards the motive for the crime: For a number of years prior to this occurrence, there had been bad blood between two groups of persons in the village of Nambur -- one group consisting of Appi Reddy and his close relations A-l to A-4 and others, and the other group consisting of the deceased, P. Ws. 1 and 2 and others. A-l is the younger brother of Appi Reddy, A-2 is the son of the elder brother of Appi Reddy, A-4 is the son of Appi Reddy's sister. A-3 is stated to be a close relation of Appi Reddy and the other accused. P. Ws. 1 and 2 are brothers and were the close associates of the deceased. There werea number of civil and criminal cases between the parties and the feelings were so strained that the police had to institute security proceedings to prevent a breach of the peace. A-3, however, was not involved in any of the cases or in the security proceedings, but was a follower of Appi Reddy and was lending his support to him. The last of the incidents immediately preceding this occurrence took place on May 29, 1960, in which the deceased is stated to have attacked Appi Reddy with a crowbar and broken his leg. Appi Reddy filed a criminal case against the deceased, P. Ws. 1, 2 and others in the Court of the Additional MunsifMagisuate, Guntur. The case stood posted to October 31, I960 for hearing, that is to say, just two days before the present occurrence. That day Appi Reddy, A-l, A-2, A-4 and some others of their group attended the Court. Appi Reddy was examined that day on behalf of the prosecution. The deceased, P. Ws. '1, 2 and some others who were implicated in that case, also attended the Court that day. The case was then adjourned to another date. It may be mentioned here that except for A-3, this part of the prosecution case-as regards the strained relations between the parties, was not seriously disputed by the defence either in the Court below or before us.
7. After attending the Court at Guntur on October 31. P. W. 1 went away to Mallampudi by bus while the deceased and P. W. 2 went back to their village of Nambur. Appi Reddy also returned to Nambur by the evening.
8. Now we come to the date of occurrence, which was November 2, 1960. In the morning of that day the deceased and P. W. 2 left Nambur at about 7-45 A.M. and went by bus to Guntur. The distance between Nambur and Guntur is about eight miles. The deceased wanted to consult a doctor at Guntur and P. W. 2 accompanied him. At Guatur they went to one Dr. Ch. Nageswara Rao, who examined the deceased and prescribed a course of injections. The doctor gave one injection and told the deceased to take three more injections in his village. The deceased and P. W. 2 went to the bazaar and the deceased bought some injection phials. Then they had coffee and went to the bus stand and boarded a bus bound for Nambur. This Bus was A.P.G. 2625 which was plying between Guntur and Nambur, and it left Guntur at 2 p.m. on its seventh trip. P. W. 3 (D. Varada Rao) was the driver of the bus; P. W. 4 (B. Venkata Suhba Rao} was the conductor and P. W. 5 (M. Vasantha Rao) was the bus supervisor. The bus was divided into two compartments with a sealing capacity of forty-one including the conductor and the driver. The front portion would accommodate twelve passengers in addition to the driver and the rear portion had a seating accommodation for twenty-seven passengers besides the conductor. When the bus left Guntur on that trip, there were in all fifteen passengers in it. P. W. 2 sat on the seat immediately behind the driver. The deceased sat on a seat opposite to where P. W. 2 sat. Two other passengers who travelled in that bus from Guntur, viz., A. Subba Reddy and I. Seetha Reddv, figure in this case as P. Ws. 6 and 7 respectively. P. W. 6 sat on one of the seats in the front compartment. P. W. 7 got into the bus as it moved from the bus-standto the road and sat on one of the seals in the rear compartment. The bus halted at Pedda Kakani. There, one passenger from the trout compartment got off and P. W. 1 got into the bus and sat by the side of the conductor in the rear compartment. It was about 2-20 p.m. then. It may be mentioned here that P. W. 1 who had gone to Mallampudi on October 31, was going hack to Nam'bur. He had come by bus earlier and was waiting at Pedda Kakani to catch a bus going from Guntur to Nambur. P. W. 4, the conductor, issued a ticket to P. W. 1 and the latter sat on the last seat by the side of the conductor. In the rear compartment besides himself and the conductor, there were also the supervisor (P. W. 5) and P. W. 7, besides other passengers. The bus proceeded further from Kakani to Nambur Railway Station. Three passengers pot down there and none got in. The bus proceeded further on the Grand Trunk Road and took a turn towards the east on to the feeder road leading to Nambur village. At that point, the four accused A-l to A-4, who were standing there, raised their hands and slopped the bus. As the bus halted, all the four got into the front compartment of the bus. They were all wearing shirts and flowing upper cloths over their shoulders. A-3 stood at the door of the front compartment and shut the door behind him. A-l, A-2 and A-4 sat on the seat on which the deceased was sitting. The bus proceeded about three furlongs towards Nambur. Then all of a sudden, A-l to A-3 cried out 'Stab, cut, don't wait.'' Thereupon A-l, A-3 and A-4 each pulled out a short-handled axe ('chippa goddali') from his waist while A-2 pulled out a knife ('peshcup'). The wooden handle of each of those axes was about one foot in length and the blade was about four or five inches in width. A-l caught hold of the tuft of the hair of the deceased and started attacking him with the axe. Simultaneously, A-4 pounced upon P. W. 2 and aimed a blow at his neck with the axe. P. W. 2 caught hold of the axe and grappled with his assailant and sustained a number of cuts on his fingers. At that stage the driver of the bus, P. W. 3, having heard cries 'Kill, cut' and seeing the attack on passengers, suddenly Stopped the bus. With that Jolt, P. W. 2 and A-4 who had been grappling with each other loppled down on the floor of the bus between the seats, one on top of the other. A-4 fell on his back and P. W. 2 fell on him. At that stage A-2 joined the attack and stabbed P. W. 2 on the back and on the buttock. On receipt of these injuries, P. W. 2 slided sideways and A-4 got on top of him. A-2 again' tried to stab P. W. 2 but the blow fell on A-4 and the latter cried out that he was dead. A-2 then took the axe from the hand of A-4 and struck P. W. 2 repeatedly with it. While P. W. 2 was being attacked in the above manner, the deceased was also attacked with axes first by A-l and then by A-3. When the bus stopped and the door was opened by one of the passengers, the deceased lumped down an3 ran towards the west. As he was running his 'dhoti' dropped down. A-l to A-3 also jumped down from the bus. At that juncture, P. W. 1 who had been witnessing all this, also got off the bus with a view to escape. A-2 lifted his knife threatening that he would killP. W. 1. P. W. 1 bent his head and the blow aimed at P. W. 1, grazed the back of his neck. P. W. I sat down. A-l to A-3 then let him off and run after the deceased who was running for his life. They overtook him after he had gone about a hundred yards and attacked him indiscriminately with their weapons. The deceased fell down on the southern margin of the road. Then A-l to A-3 left him, apparently under the impression that he was dead and turned back to go towards the bus. The deceased who had been seriously wounded, got up and was staggering in a north easterly direction across the road where there was a pond. Seeing this, A-l to A-3 again came back, set upon the deceased and again attacked him, leaving him dead at that spot, with numerous injuries on his person. A-l to A-3 then fled northwards across the fields.
9. While all this was going on, the passengers in the bus who were naturally terror-stricken, got off the bus and ran in different directions. P. W. 2 and A-4. however, lay seriously wounded side by side in the front portion of the bus.
10-16. (After referring to the evidence of some of the witnesses, His Lordship proceeded:) We shall now refer to the lodging of the first information of the crime by P. W. 1 at the 'Mangalagiri Police Station and how the investigation was conducted by the police.
17. From the scene of the crime, P. W. 1 went to a textile mill which is to the south and there got into a lorry and proceeded to Mangala-giri. The distance between the scene of the occurrence and Mangalagiri is seven and a half miles. He reached the police station at Mangalagiri at about 5-30 p.m., wrote out a report regarding the occurrence and handed it over to P. W. 16, the Head Constable, who was in charge of the police station. The report is Ex. P-1. This is a very important document and it is necessary to reproduce it in full. It runs thus:
'On 2-11-1960 at about 5-30 p.m., Tiyyagura Sambi Reddy, son of Rami Reddy, resident of Nambur village, dame to the police station at Mangalagiri and gave the report.
There were disputes between myself and Vuyyuru Appi Reddi's party in our village with regard to lands. Five months ago, someone broke the leg of Appi Reddy. In that case myself also was an accused. Those that were beaten now viz., (1) Tiyyagura Krishna Reddi (P. W. 2) and (2) Bhimavarapu Sambi Reddy (deceased) too were accused. Today at 2-30 p.m., I got into the bus going to Nambur at Pedakakani. In that bus there were (1) Bhimavarapu Sambi Reddy (deceased) son of Rami Reddi, (2) Tiyyagura Krishna Reddi (P. W. 2) son of Rami Reddi besides 7 or 8 people. At the turning to Nambur road, (1) Vuyyuru China Venkata Reddi (A-l) son of Pedda Sub-bareddi, (2) Vuyyuru Venkata Reddi (A-2) son of Sambi Reddi, (3) Vuyyuru Ratna Reddi (A-3) son of Venkatappa Reddi and (4) Gujjala Ayyapa Reddi (A-4) son of Subba Reddi got into the bus As the bus proceeded to a distance of four furlongs (1) Vuyyuru China Venkata Reddi (A-l) and (21 Vuyyuru Venkata Reddi (A-2) son of Sambi Reddy exhorting 'stab, stab'. Vuyyuru Venkata Reddi(A-2) son of Sambireddt and Gajjala Ayyapureddi (A-4) went upon Tiyyagura Krishna Keddi (P. W. 2). Vuyyuru Venkata Reddi (A-2) with a peshcup and Gujjala Ayyapa Reddi (A-4) with an axe went upon Tiyyagura Krishna Reddy (P. W. 2). Vuyyuru China Venkata Reddi (A-l) and Vuyyuru Ratna Reddi (A-3) had axes with them. With those they went upon Bhimavanipu Sambi Reddi (deceased). Gujjala Ayyapureddi (A-4) was caught hold of by Tiyyagura Krishna Reddi (P. W. 2). Both of them fell down in the bus from the seat of the bus. When Vuyyuru Venkata Reddi (A-2) attempted to stab Tiyyagura Krishna Reddi (P. W. 2) of those that were fallen down, that stab fell on Gujjata Ayyapa Reddi (A-4). With that blow he cried out that he was dead. Then Venkata Reddi (A-2) cut Krishna Reddi (P. W. 2) with an axe on his legs and hands- Krishna Reddi (P. W. 2) fell down with those blows. (1) Ratna Reddi (A-3) and (2) Vuyyuru China Venkata Reddi (A-l) beat Blima-varapu Sambi Reddi (deceased) with axes on his legs. Sambi Reddi got down the bus and began to run towards the west. When I was coming after getting down from the tear seat of the bus, (1) Vuyyuru China Venkata Reddi (A-l), (2) Vuyyuru Venkata Reddi (A-2) and (3) Vuyyuru Ratna Reddi (A-3) got dowrt the bus from the front side and came opposite to me. Vuyyuru Venkata Reddi (A-2) stabbed me with a knife on my neck. That it grazed on my neck a little. They pushed me and ran after Bhimavarapu Sambi Reddi. They caught hold of Sambi Reddi as he covered 50 yards and made him fall down by the side of the road and beat him with axes. Vuyyuni Venkata Reddi (A-2) stabbed him with a knife. Due to those axe blows and stab injuries Bhimavarapu Sambi Reddi died then itself. (J) Tiyyagura Sambi Reddi (P. W. 8) son of Linga Reddi and (2) Tiyyagura Peda Venkata Reddi (P. VV. 9) son of Sitharami Reddi witnessed the beating of Bhimavarapu Sambi Reddi (deceased). Then due to fear I stealthily ran away and came to the police station and gave this written report.
(Sd) Tiyyagura Sambi Reddi,
(We have supplied the key within brackets.)
18. It is to be noted here and now that in this report which was given within 24- hours of the occurrence by a person who was an eye-witness and was himself injured in the course of the incident, the circumstances in which the crime was committed were set out: the names of the four accused were mentioned as the offenders; the parts played by each of the accused in the attack on the deceased and on P. Ws. I and 2 were described; and the names of P. Ws. 8 and 9 also find a place as witnesses to the later stages of the incident when the deceased was chased and attacked by A-l, A-2 and A-3.
19. The Sub-Inspector of Police (P. W. 19) was not at Mangalagiri on that day, but the Circle Inspector of Police (P. W- 18) was present. P. W. 16, the Head Constable, registered the crime as Crime No. 362 of 1960 and sent express first information reports to the concerned authorities. The Circle Inspector of Police of Mangalagiri (P. W. 18) received the express first information report at 6 p.m. at his office which is also hisresidence. He went straightway to the police station, found P. W- I there and examined him. Finding an injury on the person of P. W. 1, P. W. 18 sent him to the doctor.
20. Meanwhile the driver and the conductor of the bus A.P.G. 2625 (P. Ws. 3 and 4) also came to the police station. P. W. 18 examined them and recorded their statements. At about 6-45 p.m. P. W. 18 left the police station for the scene of the crime taking with him P. Ws. 3 and 4. P. W. 19, the Sub Inspector of Police, Mangalagiri, joined them on the way. They reached the scene of offence at about 7-15 p.m. P. W. 18 inspected the scene and drafted an observation report Ex. P-19. He found the bus A.P.G. 2625 on the feeder road to Nambur. He noticed blood-stains on the floor of the bus in the front portion and on some of the scat cushions. The dead body of the deceased was found at a distance of about 475 feet to the west of the bus. P. W. 19 seized the blood-stained earth at two places at a distance or 130 feet to the southwest of the spot where the dead body lay. Those two places were 12 feet south of the road margin. Inside the bus, P. W, 18 saw P. W. 2 and A-4 lying, the former in the rear portion and the latter in the front portion. He tried to speak to them but they were not in a condition to speak. He sent both of them to the hospital at Guntur. Between 8 and 8-30 p.m. P. W. 18 examined at the scene of the crime two more persons, P. Ws. 8 and 9. He then sent for the village officers of Nambur and they told him that the scene of offence was within the territorial jurisdiction of the Gunlur Taluk Police Station. So P. W. 18 sent the intimation, Ex. P-22, to the Guntur Taluk Sub Inspector and transferred the case to that station with a request to take up the investigation immediately. P. W. 20, the Sub-Inspector of Guntur Taluk Police Station, received the intimation at 2-45 a.m. on November, 3. He immediately went to the station, registered the crime as Crime No. 312 of 1960, sent express reports to the concerned authorities and left the station in a police van. On the way he picked up P. W, 21, the Circle Inspector of Police, Guntur Taluk Police Station, and they reached the scene of offence at 5-30 a.m. P. W. 21 conducted the investigation from that point assisted by P. W. 20 and others. At the scene, P. W. 21 met P. W. 18, the Circle Inspector of Police of Mangalagin, acquainted himself with the facts of the investigation so far conducted by P. W. 18, and received copies of the statements of the witnesses recorded by the latter till then. Panchayatdars were summoned and an inquest over the dead body was held between 6-30 a.m. and 10 a.m. P. W. 21 seized blood-stained earth from the place where the dead body lay. He also seized the shirt and the banian of the deceased. In the shirt pocket of the deceased there were three penicillin phials (M. Os. 2 to 4), a distilled water phial (M. O. 5) and a bus ticket from Guntur to Nambur (Ex. P-25). In another pocket of the shirt, there was a prescription (Ex. P-24). At the inquest, P. W. 21 examined P. Ws. 1 and 3 to 9 besides some others. While he recorded the statements of P- Ws. 5, 6 and 7, he did not record separate statements from P. Ws. 1, 3, 4, 8 and 9 but merely verified the statements which had alreadybeen recorded by P. W. 18, the Circle Inspector of Police of Mangalagiri. He then went to Nam-but and looked for the accused but A-l, A-2 and A-3 were found to be absconding.
21-24. P. W. 2 and A-4, who bad been sent to the Government Hospital at Guntur, were produced by the police con-stable on the night of 2nd November, 1960 before P. W. 12, Casualty Medical Officer in the Government Hospital at Guntur, at about 9 p.m. He examined P. W. 2 at about 9-20 p.m. and gave a wound certificate Ex. P-8 noting the following injuries:
(After describing the nature of injuries His Lordship proceeded:).
25. It is important to note that P. W. 2 had as many as twelve injuries caused by a sharp-edged weapon; five of the injuries were on the hands, three were on the legs and three on the right buttock and one on the left side of the back. The right little finger had been practically cut off. It is also material to note that of the three injuries on A-4, the most serious injury was on the right side of the back and it had penetrated 4' into the body.
26. Finding the condition of P. W. 2 and A-4 dangerous, P. W. 12 thought it necessary to have their dying declarations recorded, and so he sent intimations to P. W. 14, the Additional Judicial Second Class Magistrate at Guntur, which the latter received at about mid-night on 2nd November. Forthwith he proceeded to the hospital and recorded the statements from P. W. 2 and A-4 in the presence of P. W- 12. The statement recorded from P. W. 2 is Ex. P-2 and it runs thus:
29. (After narrating the dying declaration, His Lordship proceeded:) According to this statement, A-4 travelled in the bus from Guntur and in the same bus the deceased, P. W. 1 and two others called Tiyyagura Veera Reddy and Bhima-varapu Subba Reddy also travelled from Guntur. (Veera Reddy is the elder brother of P. Ws. 1 and 2 and Subba Reddy is said to belong to their group). The story narrated in (his statement is that the deceased was armed with a knife and Veera Reddy with an axe; that without any provocation, the deceased had kicked A-4 on his chest as a result of which A-4 had fallen down in the bus, but he did not notice who caused injuries to him nor did he see anything else happening inside the bus. It was further stated that the motive for the attack was that the deceased had Illicit intimacy with the wife of a paternal uncle of A-4; that the paternal uncle and his wife were living in A-4's house and due to that, the deceased bore a grudge, and so the deceased and his associates had waylaid and beaten A-4. Significantly in this statement, there was no reference whatever to P. W. 2, who had received serious injuries and was lying prostrate by the side of A-4 on the floor of the bus.
30. P. W. 21 continued the investigation. On 4th November he visited the general Hospital at Guntur. P. W. 2 and A-4 were not in a condition to be examined. So he directed the Sub-Inspector to register the statement given-by A-4 to the Additional Judicial Second Class Magistrate, Guntur and to investigate it separately. He de-puted a special police party to trace the absconding accused. On 6th November he examined P. W. 2 and others. On 10th November he arrested A-4 in the hospital. He then instructed the Sub Inspector of Police to apprehend the other three accused and file a charge-sheet. In accordance with the directions of P. W. 21, P. W. 20, the Sub Inspector of Police, Guntur, registered a case as Crime No. 312 of 1960 on the basis of A-4's statement before the Magistrate and investigated it. On 10th November be referred it as false. On 24th November be filed a charge-sheet in this case. On December 3, 1960, A-3 was brought under arrest in execution of' a non-bailable warrant and was produced before the Magistrate on the same day. A-l and A-2 surrendered themselves before the Magistrate on December 7, 1960.
31. Neither p. W. 20 nor P. W. 21 took steps to have an identification parade held presumably because A-l to A-3 were absconding by the time the charge-sheet was filed.
32. Reference may here be made to the postmortem examination conducted by P. W. 10, Dr. P. Sarojini. She started the post-mortem examination on November 3, 1960 at 2-30 p.m. and found the following external injuries on the person of the deceased. (After describing the nature of injuries. His Lordship proceeded:)
33-34. Having regard to the nature and number of the injuries on the deceased, there can be no doubt whatever that the man was subjected to a relentless and indiscriminate attack with lethal weapons with the intention of causing his death.
35. At the trial the prosecution examined the nine eye-witnesses as P. Ws. 1 to 9 and rested its case mainly on their evidence.
36. The pleas of the accused may now be noticed. Before the committing Court, A-l stated that he is the brother of Appi Reddy but he had no connection with Appi Reddy's party. He was however looking after Appi Reddy's field from the time his leg was broken. He was also looking after Appi Reddy's treatment. Hence this case was foisted on him. Criminal cases and security proceedings were filed against him unnecessarily. He denied having got into the bus along with the other accused at the turning to the Nambur feeder road. He stated that the evidence of the eye-witnesses was false and that he was at his house throughout the day of the occurrence. He asserted that A-3 was residing in Bellary at the time of the occurrence.
37. In the Sessions Court he reiterated this plea and said that Appi Reddy is his brother; A-2 is his brother's son and A-4 is his sister's son. A-3 however, is not related to him. There were parties between Appi Reddy and P. W. 1 but he had nothing to do with them. He had been unjustly implicated in the cases which had been filed against him before this occurrence, but he was a respondent in the security proceedings. He denied having got into the bus and alleged that P. Ws. 4 and 5 had been bribed to give false evidence., He alleged that P. Ws. 1 to 9 had deposed falsely because they are all the relations and partisans of the deceased and P. W. 1. When questioned abouthis having absconded and surrendered before the Court on December 7,' 1960 he stated:
'I was at my house.' I did not abscond.'
38. Similarly A-2's plea was one of denial coupled with an allegation that a false case had been foisted on him because he is the brother's son of Appi Reddy and was looking after the affairs of Appi Reddy from the time he was attacked and his leg was fractured. He further stated that he had been unnecessarily dragged into security proceedings. He asserted that he did not travel by the bus on the date of the occurrence and had no connection with the incident. On that day he had gone to his field and knows nothing about the occurrence. He denied having absconded and stated that he was all the time in his house.
39. A-3's plea was that there were parties in the village of Nambur but he had no connection with them. He had nothing to do with Appi Reddy and he is not related to him. In the committal Court, be pleaded alibi and stated thus:
'I was not there then. I was at Devamma Cheruvu at Takkellakota, Siriguppa Taluk, Bellary District. I was residing there taking the land of Sadasivaiah on lease. I took four acres of Sadasivaiah's land. I took on lease seven acres of dry land of Khasim. I was residing there from the last 9 months.'
He repeated his plea in the Sessions Court and stated that he is not related to the other accused and that he is not a follower of Appi Reddy. On the day of the offence he was not at Nambur but was in Thakkellakota in Bellary District. He did not abscond but was arrested at his residence in Bellary District- He added:
'P. W. 1 was suspicious that his sister Kanakamma was talking with me. So he implicated me in this case.'
40. A-3 examined four witnesses in support of his plea of alibi. We will advert to the evidence of these four witnesses (D. Ws. 1 to 4) when dealing with the case of each individual accused.
41. In the committal Court, A-4 gave the following version of the incident:
'I went to the bus stand for 2-0' clock bus. Tiyyagura Krishna Reddi (P. W. 2), Bhimavarapu Subba Reddi and Bhimavarapii Sambi Reddi (deceased) were in the front seat. I also sat in the front seat. When the bus was about to start Tiyyagura Sambi Reddy (P. W. 1) came and sat near the conductor. The bus halted at Kakani. Tiyyagura Sambi Reddi (P. W. 1) Krishna Rcddi (P. W. 2) Bhimavarapu Subba Reddi, and Bhimavarapu Sambi Reddi (deceased) went to a coffee hotel and after discussing they four came and sat in the front scat. When the bus was going on the feeder road after taking its turning, Bhimavarapu Sambi Reddi (deceased) kicked me. I then abused Sambi Reddi. Bhimavarapu Sambi Reddi (deceased) had a knife with him. Krishna Reddi (P. W. 2) had an axe with him. I did not notice as to what weapons the other two had. Krishna Reddi (P. W. 2) beat me with an axe. It struck on my hand. Bhimavarapu Sambi Reddi (deceased) stabbed me on my back. I fell down. Vuyyuru Sivareddi, Vuyyuru Sambi Reddi, Emani Brahma reddi, Koppula Anjireddi, Annapareddi Sambi-reddi, Mungga Ramaiah, Appikatla Rangaiah and Kunala Veerareddi were in the bus then. Some of them raised a commotion. 1 fell down and I was unconscious there.'
42. It will be readily seen that this statement differs in several material particulars from Ex. P-10, the statement given by A-4 to the Additional Judicial Second Class Magistrate (P. W. 14) on the night of the occurrence at the Government Hospital, Guntur. Whereas in Ex. P-10 there was no reference whatever to P. W. 2. and the four persons that had travelled in the bus were stated to be the deceased, P. W. I, Veera Reddy (the brother of P. Ws. 1 and 2) and one Subba Reddy, in the statement given before the committal Court P. W. 2 was substituted for his brother Veera Reddy, as one of the four persons that had travelled in the bus from Guntur. Further, while in Ex. P-10, A-4 had stated that he did not see who had caused injuries to him, in the committing Court he said that P. W. 2 had beaten him with an axe and the blow had fallen on his hand, while the deceased had stabbed him on the back. A-4 also mentioned the names of eight persons as having travelled in the bus and stated that he would tile the list of witnesses to be examined on his behalf in the Sessions Court.
43. In the Sessions Court, however, when he was asked whether he had any defence witnesses whom he wished to examine, he said 'yes' but did not choose to examine any. In the Sessions Court, he gave practically the same version of the incident as he had given before the committing Court. He, however, added one more detail, namely, that P. W. 1 had exhorted the others to beat him (A-4) and that thereupon, the deceased had pulled out a knife, P. W. 2 an axe and that the former had stabbed him while the latter had struck him with the axe on the hand. He denied having attacked P. W. 2 with an axe and that in the course of the struggle the blow aimed by A-'Z had fallen on himself (A-4). He asserted that the other three accused (A-l to A-3) were not in the bus at all. He denied alt knowledge as to how P. W. 2 had sustained injuries. He asserted that he had got into the bus at Guntur itself and denied having got' into the bus along with A-l, A-2 and A-3 at the feeder road turning. He said that he is the son of A-l's sister but that he is not a follower of Appi Reddy. He was implicated in the security proceedings as he is related to Appi Reddy
44. We shall -now refer to the manner in which the learned trial Judge has appreciated the evidence in the case, to the findings recorded and the conclusions reached by him. The learned Judge found as 'certainties' in the case that the bus A.P.G. 2625 left Guntur on its seventh trip to Nambur at 2 p.m. on November 2, 1960; that the bus did not reach its destination but came to a standstill for that day between the fourth and the fifth furlongs on the Nambur feeder road; that P. W. 2 and the deceased boarded the bus at Guntur; that of the two, P. W. 2 sustained twelve injuries in the bus itself and subsequently he was removed from the bus and sent to the General Hospital at Guntur; that (he dead body of the deceased was found about 160 yards to the westof that stationary bus on the northern margin of the feeder road; and that A-4 also received three injuries when he was inside the bus and he too was sent to the Genera! Hospital at Guntur.
45. Then the learned Judge reached the conclusion that there must have been a 'clash' between two groups of persons at the place where the bus came to a standstill, and that the deceased must have been chased and done to death in the road margin away from the bus. The learned 'Judge's view that there must have been a 'clash' between two rival groups was based on the fact that A-4 had sustained three incise wounds- The learned Judge took note of the fact that the most serious injury out of the three namely, the injury over the right side of the back which had penetrated to a depth of 4' had been accounted for by the prosecution by explaining that it had been accidentally caused by one of the party-men of A-4, namely, A-2, when he aimed a blow with a knife at P. W. 2 but the blow missed and fell on A-4 and wounded him grievously. The leaned Judge regarded this as a belated explanation because it was not found in Ex. P-2, the statement given by P, W. 2 at the Guntur Hospital to the Additional Judicial Second Class Magistrate (P. W. 14), and according to the learned Judge, it was not mentioned in Ex. P-1, the report given by P. W. 1 at Mangalagiri police station. Moreover there was no explanation at all for the two other injuries found on A-4.
46. Having found that there was a 'clash' between the two rival groups, the learned Judge went on to pose the question as to who had started the fight and who the aggressors were. In resolving this question he took note of the facts that in the pocket of the deceased were found a doctor's prescription and medicine bottles; the presence of as many as twelve injuries on the person of P. W. 2 and twenty-two injuries on the deceased; and the fact that none others besides A-4, was injured on his side. In view of these circumstances, the learned Judge found:
'Therefore in the circumstances I am certain in my mind that A-4 and others of his group were the aggressors.'
47. Then the learned Judge went on to consider who the participants in the occurrence were. So far as A-4 was concerned, the learned Judge had no difficulty in holding that he was a participant in view of the fact that he was found lying injured inside the bus,
48. As regards A-3, the learned Judge considered the pica of alibi set up by him and the evidence adduced by him in support thereof, and rejected it as untrustworthy. The learned Judge acted on the evidence of P. Ws. 3, 4 and 5, the driver, conductor and the supervisor of the bus respectively, and more particularly on the evidence of P. Ws. 3 and 4, as clinchingly establishing the presence and participation of A-3.
49. As regards motive, the learned Judge held in paragraph 31 of his judgment:
'The evidence of P. W. 1 that remained unchallenged in regard to the groups, cases and suits, amply bear out a motive for an attack by people of Appi Reddi against the people of thegroup of P. W. 1. There is the evidence of P. Ws. I and 2 that A-3 is a follower of Appi Reddi's group....'
50. As regards A-l and A-2, the learned Judge was of the view that although they had a strong motive to attack the members of the opposite group, yet it was not safe to act upon the evidence of the eye-witnesses to fasten the guilt upon them. The learned Judge rejected the evidence of P. Ws. 1, 2, 6, 7, 8 and 9 'in toto' and while accepting the evidence of P. Ws. 3, 4 and 5 with regard to A-3, was not prepared to accept it as regards as A-l and A-2. The learned Judge devoted just one sentence for the appraisal of the evidence of P. Ws. 1, 2, 8 and 9, and another sentence for evaluating the testimony of P. Ws. 6 and 7. This is what the learned Judge said in paragraph 32 of his judgment:
'P. Ws. 1, 2, 8 and 9 are definitely partisan witnesses. P. Ws. 6 and 7 were not referred to in Ex. P-1 and were examined the next day.'
He was not prepared to act on the evidence of P. Ws. 3, 4 and 5 with regard to A-l and A-2 because these witnesses had not earlier given any descriptive marks to fix the identity of A-l and A-2, and had identified them only in the committal Court for the first time, some two months after the date of the offence, without an identification test in-between.
51. The learned Judge summed up the effect of his appreciation of his evidence in the last sentence of paragraph 32 of his judgment:
'Therefore on a consideration of the entire evidence and the circumstances, I consider that it can safely be concluded that A-3 and A-4 were the participants in the attack against P. W. 2 and deceased Sambi Reddi on 2-11-1960 at about 2-30 p.m. to 3 p.m. in the bus at Nambur feeder road along with others who possibly might be A-2 or A-I or both, and A-3 in the subsequent attack on Sambi Reddi also till his death and such a safe conclusion is not possible against A-l and A-2 as in the case of A-3 and A-4.'
52. As a consequence of the above findings, the learned Judge acquitted A-I and A-2 of all the charges. He also acquitted A-4 of the third charge for having attempted to murder P. W..2 by cutting him with an axe. The reasons given 9 by the learned Judge are that this particular overt act was not mentioned in Ex. P-2 or in Ex. P-1 and it was not spoken to by P. Ws. 3 to 5 who alone, according to the learned Judge, were non-partisans. So, in the words of the learned Judge, in paragraph 35 of his judgment:
'Hence though there were injuries on P. W. 2 and there is the evidence of P. Ws. I, 2, 6 anil 7, one cannot be certain that whether they were in fact inflicted by A-4 or inflicted by another palmed off now to A-4. Therefore this charge also fails.
53. As regards A-3, the learned Judge summed up his conclusion thus in paragraph 33 of his Judgment:
'A-3 is charged under Section 302 read with Section 34, I. P. C. The extent of injuries on Sambi Reddy and the manner of attack, the timeand place of attack and that too with weapons positively indicate that the attackers had an intention to kill. Therefore in view of my conclusion that A-3 was a participant in that attack, I find A-3 guilty under charge No. 1- As far as A-l and A-2 are concerned, they get the benefit of doubt and this charge against them fails.'
54. Regarding A-4 in respect of the 5th charge, this is what the learned Judge says in paragraph 37 of the judgment:
'The last and final charge is against A-4 under Section 109 read with Section 302, I. P. C, for facilitating and aiding the murder of Sambi Reddy. I have concluded above that there was an attack between rival groups and that A-4 was the participant in it. Though the death of Sambi Reddi was away from the bus, that is away from the place where A-4 was injured and subsequent to A-4 was injured, it would not follow that he did not abet in that murder. Therefore, I find A-4 guilty under the last charge.'
55. It was contended by the learned counsel appearing for the accused that on the findings recorded by the learned trial Judge with regard to P. Ws. 1, 2 and 6 to 9, and having regard to the unsatisfactory nature of the identification of the offenders by P. Ws. 3, 4 and 5, A-3 and A-4 should also have been acquitted. On the other hand it was contended by the learned Public Prosecutor appearing for the State in all the appeals that the judgment of the learned trial Judge is vitiated by a gross misappreciation of the evidence of the eye-witnesses, and the learned Judge has fallen into a grave error in summarily rejecting the testimony of as many as six eye-witnesses and in particular, the testimony of two independent witnesses, P. Ws. 6 and 7 on wholly untenable grounds. He further urged that the finding of the learned Judge that there was a fight between two rival groups of persons is not based on evidence, direct or circumstantial. It was lastly pointed out that in acquitting A-l and A-2 of all the charges framed against them and of A-4 of the third charge, the learned Judge had allowed unreasonable doubts to sway his judgment.
56. Before addressing ourselves to the case of each of the four accused, two of whom have been convicted and two acquitted by the Court below, we will deal with the submissions of a general nature made by the learned counsel for the defence as regards the investigation by the police and the probative value of the direct evidence adduced by the prosecution.
57. Firstly it was contended that the investigation into the case was not prompt and fair, and it was hinted that the investigating police had played into the hands of P. W. 1. To say the least, this criticism is uncharitable and is baseless. In our opinion, the investigation was conducted without any avoidable delay and there was neither tardiness nor partiality on the part of any of the investigating officers. It will be remembered that the offence took place at about 3 p.m. on November 2, 1960 on the Nambur feeder road. P. W. I. who was travelling in the bus and had himself sustained an injury in the course of the occurrence, reached the police station at Mangalagiri at about5-30 p.m. and lodged a complaint Ex. P-l dis-clossing all the material facts and naming the four accused as the assailants. The distance between the scene of the crime and Mangalagiri is about 7 1/2 miles. P. W. 18, the Circle Inspector of Police, Mangalagiri, went to the station at 6 p.m. after receiving the express first information report sent to him by the Head Constable (P. W. 16), who had registered the crime on the basis of Ex. P.1. There he found P. W. 1 at the station and examined him straightway. Noticing an injury on him, he sent P. W. 1 to the doctor. Meanwhile the driver and the conductor of the ill-fated bus (P. Ws. 3 and 4) arrived at the police station and the Circle Inspector recorded their statements as well. At6-30 p.m. he left the Police Station for the scene of the crime and reached there at 7-15 p.m. He inspected the bus and the spot where the deceased day dead and prepared an observation report Ex. P-19. Finding P. W. 2 and A-4 lying in the bus with serious injuries, he tried to record their statements but they were not in a condition to speak. So he sent them to the hospital at Guntur for treatment At the scene of offence he also examined P. Ws. 8 and 9 between 8 and 8-30 p.m. Thus, in all, he recorded the statements of five eyewitnesses that very evening between 6 p.m. and 8-30 p.m. and those witnesses were P. Ws. 1, 3, 4, 8 and 9. Thereafter, on being apprised of the fact that the scene of offence lay within the territorial jurisdiction of the Guntur Taluk Police Station, he transferred the case to the concerned police that night itself by means of an intimation Ex. P-22. The distance between the scene of offence and Guntur is about six miles. The Sub-Inspector of Police, Guntur Taluk Police Station, (P. W. 20) received this intimation at Guntur at 2-45 a.m. on 3rd November. He started for the scene of offence in the company of his superior officer, the Circle Inspector of Police (P. W. 21) at 4-00 A.M. and got there at 5-30 A.M. P. W. 21 conducted the investigation from that stage. He met P. W. 18, the Circle Inspector of Mangalagiri, at the scene and acquainted himself with the facts of the investigation so far conducted by the latter. P. W. 18 handed over to P. W. 21 the statements of the five witnesses recorded by him. Panchayatdars were summoned. At 6-30 a.m. the inquest was commenced and all the features noticed at the scene of the crime were embodied in the inquest report, Ex. P-l 7. P. Ws. 5, 6 and 7 were examined at the inquest and it was concluded by 10 a.m. A-l to A-3 could not be apprehended as they were found to be absconding. On the evening of the 4th, P. W. 21 visited the General Hospital at Guntur and tried to examine P. W. 2 and A-4 but as they were not in a condition to give statements, and since their statements had already been recorded on the night of the incident itself by the Additional Judicial Second Class Magistrate, Guntur, P. W. 21 directed his Sub-Inspector to register the statement given by A-4 and investigate it separately. Accordingly. P. W. 20, the Sub-Inspector, registered it as Crime No. 312 of 1960, investigated it and ultimately referred it as false. On the 6th, P. W. 21 examined p. W. 2 and some others. He continued the examination of the witnesses on the 8th and the 11th. On the 10th he arrested A-4 in the hospital. He deputed' a special police party'to trace the absconding accused. After completing the investigation, under the instructions of P. W. 21, the Sub-Inspector (P. W. 20) laid a charge-sheet on November 24, 1960 against the four accused. A test identification could not be conducted because A-l to A-3 had made themselves scarce and could not be traced till after the charge-sheet was laid. As noticed already, A-3 was arrested on 3rd December, while A-l and A-2 surrendered themselves before the Court on 7th December, 1960.
58. It would thus be seen that the entire investigation was completed within the space of three weeks, and there is therefore no force in the contention on behalf of the defence that there was delay in investigating into the crime. Nor is there any justification for the suggestion that the police had taken sides and acted unfairly.
59. It was next urged by the learned counsel for the accused that barring the driver, the conductor and the supervisor of the bus (P. Ws. 3,4 and 5), the remaining eye-witnesses, namely, P. Ws. 1. 2, and 6 to 9 are all partisan witnesses, who had identified themselves with the group opposed to that of the accused, and their evidence has rightly been rejected by the trial Court. The learned trial Judge had characterised P. Ws. 1, 2,5 and 9 as 'definitely partisan witnesses', but he did not place P. Ws. 6 and 7 in that category but brushed aside their evidence on two grounds -- firstly, that their names had not been mentioned in the first information report, Ex. P-l and secondly, that they were examined the next day and not on the very night of the occurrence.
60. It is true that on their own showing, P. Ws. 1, 2, 8 and 9 are partisan witnesses because P. Ws. 1 and 2 and the deceased had figured in a number of cases, civil and criminal, as against the rival group of which Appi Reddy was the leader and A-l to A-4 were members; likewise P. Ws. 8 and 9 were co-respondents along with P. W. 1 and his partisans in the security proceedings which had been launched by the police against both sides. But partisanship by itself is no ground for discrediting sworn testimony. Interested evidence is not necessarily false evidence. It should no doubt be subjected to careful scrutiny and accepted with caution; but where as in this case, the direct evidence of P. Ws 1, 2, 8 and 9 albeit of a partisan nature, is corroborated by other independent evidence, direct and circumstantial, the lower Court fell into a manifest error in treating the evidence of these four witnesses as though it was not legal evidence.
61. It was observed by Imam. J., in the Supreme Court decision in Mangal Singh v. State of Madhya Bharat, : 1957CriLJ325 :
'It was suggested that when the two eyewitnesses to the occurrence were interested persons there should be corroboration of their evidence by independent witnesses. It seems to us that this is a proposition which cannot be of universal application. In the present case, evidence of the eyewitnesses receives ample corroboration from the circumstances that the dead bodies of Surat Singh and Shardul Singh and the burnt bullock-cart were found not far from the place where they were first attacked by the appellants,'
62. In the present case, P. Ws. 1 and 2 were unquestionably and admittedly travelling in the bus a! the time of the occurrence. The injuries found on them and the fact that P. W. 2 was found lying seriousiy wounded inside the bus itself, besides the admission of A-4 in his statements before the committal and the trial Courts, put this matter beyond dispute. As the offence took place in broad daylight and the assailants were well known to P. Ws. 1 and 2, and the number of assailants was only four, the witnesses would have had no difficulty in identifying them and in observing the outstanding overt acts of each of the assailants. Further more, the statements given to the authorities by P. Ws. 1 and 2 (Exs. P-l and P-2) at the earliest opportunity, corroborate their evidence in Court in essential matters; in particular, Ex. P-l contains most of the details deposed to by P. W. 1 at the trial. The time and the place of occurrence, the circumstances in which the crime was committed, the names of the assailants, the names of the injured persons besides the names of P. Ws. 8 and 9, who had seen the later stages of the attack on the deceased, were all mentioned in Ex. P-l. Further, the evidence of P. Ws. I and 2 as regards what had happened in the bus, is fully corroborated by P. Ws. 3. 4 and 5 who had no connection whatever with the rival groups, and also by the disinterested and independent testimony of P. Ws. 6 and 7, whose evidence we will presently show, has been wrongly brushed aside by the learned trial Judge. As to what happened outside 'he bus, that is to say, the fleeing of the deceased by jumping off the bus with A-l. A-2 and A-3 in hot pursuit, of his being overtaken and attacked first at one spot and then again at another spot, are borne out by the finding of blood-stains at a place about 130 feet south-west of the spot where the dead body lay. In addition to these corroborative circumstances, the medical evidence which describes the miuriss found on the deceased and P. Ws.1 and 2, fits in with the evidence of the eye-witnesses with regard to the manner of attack on the three victims.
63. There is then the evidence of P. Ws. 3, 4 and 5. Whatever its value may be with regard to the identification of the assailants because no test identification was held -- and the trial Judge has accepted their identification only so far as A-3 is concerned--it does establish that four persons had got into the bus at the turning of the feeder road to Nambur and that after the bus had proceeded about three furlongs, there were shouts of 'cut and kill', followed by an indiscriminate attack with dangerous weapons, putting the passengers in terror and panic:; and further, that one person had jumped off the bus and run for his life with his 'dhoti' coming off in the process, being chased by three persons who had been travelling in the bus-Even if the evidence of P. Ws. 3. 4 and 5 is accepted to this limited extent, that would furnish ample corroboration of the facts deposed to by P. Ws. 1 2, 8 and 9. The learned trial Judge was therefore obviously wrong in brushing aside the evidence of these four witnesses as of no value because they are partisan witnesses.
64. The learned Judge fell into a graver error in summarily rejecting the evidence of P. Ws. 6and 7. Neither the fact that their names were not referred to in Ex. P-l given by P. W. 1, nor the fact that they were examined only the next day and not on the night of the occurrence itself, detracts in the slightest degree from the weight and value of their evidence. Nothing has been brought out in the cross-examination of these two witnesses which shows that they are either interested in the deceased or inimical to the accused. No doubt, vague and random suggestions were made to these two witnesses that they were related to the deceased and that. they were inimically disposed towards the accused; but the witnesses emphatically refuted those suggestions, and the matter was left there. In this situation, it is surprising that the learned trial Judge should have thrown their evidence overboard. It was pointed out by Bose, J., in delivering the judgment of the Supreme Court in Dalip Singh v. State of Punjab, : 1SCR145 :
'A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely.'
65. The two reasons given by the learned Judge for discarding the evidence of these two witnesses, do not bear scrutiny. They are that their names did not find place in Ex. P-l and that they were examined only the next day. The fact that P. W. 1 had omitted to refer to the names of these two persons as having travelled in the bus and witnessed the occurrence, is no ground for viewing the evidence of these witnesses with suspicion or for regarding them as suborned witnesses. It has been repeatedly laid down that it is a misconception to regard the first information report as a document which should contain the entire case for the prosecution, including the names of all the witnesses. Its main purpose is to give information of a cognizable offence to the police and set them in motion. In this case, Ex. P-l does contain ail the material facts relating to the occurrence, and the non-mention of the names of these two witnesses, does not in the least affect their credibility.
65. The other point made by the learned trial Judge is that these two witnesses were examined the next day. By that he presumably means that they should have been examined on the night of the occurrence itself. They were undoubtedly examined at the inquest which was held at the scene of the crime early the next morning at 6-30 A.M. P. Ws. 6 and 7 belong to Nambur, had travelled by that bus from Guntur and after witnessing the incident, had gone back to their village. According to P. W. 18, the Circle Inspector of Mangalagiri, on the night of the occurrence he had gone from the scene of offence to Nambur at about mid-night and stayed there for about an hour; and at Nambur thirty to forty people had gathered and he had invited eye-witnesses to come forward, if there were any, but no one had done so. But P. Ws. 6 and 7 might not have known about the visit of the Circle Inspector to their village at that part of the night, and in fact they were not specifically asked about it. All that wassuggested to them was that P. W. 1 had induced them to come forward as eye-witnesses, but they repudiated the suggestion. Since they were examined early the next morning, the learned Judge was wrong in thinking that there was any suspicious delay in their examination by the investigating police.
67. As we are clearly of the opinion that the evidence of these two witnesses is entitled to great weight, we shall set out their evidence in full, noting the points which were sought to be made in their cross-examination.
68. P. W. 6 had been living at Nambur for about six years prior to the occurrence. He knew the accused, the deceased and P. Ws. 1 and 2. On the date of the occurrence, P. W. 6 had gone to Guntur in the morning by the 9 O' clock bus. After attending to his work at Guntur he went to the bus-stand to catch the 2 p.m. bus to go back to Nambur. He got into the bus and sat on the seat which was left of the driver's seat. He noticed P. W. 2 sitting on a seat immediately behind the driver and in the opposite seat the deceased was sitting. There were two other passengers on the seat on which the witness sat but they were not known to him. As the bus left the bus-stand and proceeded towards the road, P. W. 7 got into the rear portion of the bus. The bus stopped at Fedda Kakani. There, one passenger got down and P. W. 1 got into the bus. He sat in the last seat in the rear compartment of the bus on which the conductor (P. W. 4) was sitting. Then the bus halted at Nambur Railway Station. There, three persons from the rear compartment got down but no one got in. Then the bus stopped at the turning to the Nambur feeder road. There, A-l to A-4 got into the front compartment of the bus. A-l, A-2 and A-4 sat on the seat on which the deceased was sitting. A-3 stood at the doorway. The bus proceeded two to three furlongs. A-3 suddenly shouted, 'why see, stab'. Then A-l and A-2 also got up, shouting 'Stab'. A-4 pulled out an axe from his waist and attacked P. W. 2. He gave two blows. P. W. 2 grappled with A-4. Then the bus stopped. A-l, A-3 and A-4 each had an axe. A-2 had a knife. A-4 and P. W. 2 fell in the bus when it stopped. A-2 stabbed P. W. 2. Then P. W. 2 went down and A-4 got upon him. At that stage A-4 received one stab. A-2 took the axe from the hand of A-4 and started to cut P. W. 2 on his head and legs. A-l and A-3 were cutting the deceased. There was blood on the deceased. He jumped down from the bus and ran towards the west. There was no 'dhoti' no him. A-l and A-3 chased him. A-2 got down and carne opposite to P. W. 1. A-2 waved his knife at P. W. I and the latter sat down. Then A-2 joined A-l and A-3 and ran after the deceased. The witness saw the chase upto a distance of about twenty yards and then went away to his village. He was examined at the inquest later. A statement under Section 164, Cr. P. C. was recorded by the Magistrate. In cross-examination the witness stated that he and P. W. 7 had married cousins. He swore that the deceased was not related to him and there was no relationship between the deceased and the father-in-law pf the witness. He denied the suggestion that he wasa co-respondent along with P. W. 1 in the security proceedings. He emphatically repudiated the suggestion that P. W. 1 had set him up or tutored him to give false evidence. The rest of the cross-examination of this witness was with reference to his statement under Section 164, Cr. P. C. A series of inconsequential omissions in that statement as compared with the witness's deposition in Court, were elicited and were either marked as exhibits or conceded by the Public Prosecutor. Now, this is a wholly unjustifiable use of a statement recorded under Section 164, Cr. P. C. Such a statement cannot be equated with a deposition given in Court, and white it may be legitimately used for cross-examining a witness with a view to eliciting contradictions or vital omissions, it is not to be compared and contrasted with his testimony in Court with a view to detecting omissions in matters of minute detail. Such omissions cannot be elevated to the rank of contradictions, which would have the effect of discrediting the witness. It is a matter of common experience that statements of witnesses recorded by Magistrates under Section 164, Cr. P. C, on requisitions by the investigating police, are, as a rule, more concise than even the statements recorded by the police in the course of investigation under Section 161, Cr. P. C. In the instant case, one has only to read through the statement of P. W. 6 recorded under Section 164, Cr. P. C. which was marked was the defence as Ex. D-6, to be convinced that in that statement, the witness had given substantially the same account of the incident as he gave at the trial. One important thing to notice in connection with the cross-examination of this witness is that it was not even suggested to him that be had animosity against any of the accused.
69. Equally reliable is the testimony of P. W. 7. (After discussing the evidence (rest of this para and para 70) the judgment proceeded:)
('I) Such is the testimony of these two witnesses. Judged by any accepted standard, measured by any permissible yardstick, they cannot but be regarded as independent witnesses; but their evidence has been jettisoned by the learned Additional Sessions Judge on wholly untenable grounds. We have no hesitation in holding that the learned Judge's assessment of the evidence of these two witnesses is manifestly wrong, and their evidence is entitled to very great weight.
72. It follows from the foregoing discussion, that the disinterested and trustworthy evidence of these two witnesses, P. Ws. 6 and 7, coupled with the evidence of P. Ws. 1, 2, 8 and 9, which though interested, is nonetheless acceptable, taken in conjunction with the corroborative evidence of P Ws. 3, 4 and 5, conclusively proves the case of the prosecution and establishes the guilt of all the four accused to the hilt.
73. One other matter which calls for comment is the view propounded by the learned trial Judge that there was a 'clash' inside the bus between two rival groups. If by 'clash' the learned Judge meant a free fight between two opposing groups, a passenger bus is hardly the arena which would have been chosen for that purpose. Besides, a free fight supposes preparation and getting armedfor the encounter. What were the weapons which the deceased and P. Ws. I and 2 had with them when they were travelling in the bus to get to their village? The deceased and P. W. 2 were returning from Guntur after consulting a doctor, while P. W. 1 got into the bus on the way at Pedda Kakani, having arrived there by an earlier bus from Mallampudi, to which village he had gone two days earlier after having attended the Additional Munsif-Magistrate's Court at Guntur on the 31st October. Where and how did these three persons meet and plan an attack on the members of Appi Reddy's group? Apart from the self-serving statement of A-4 from the dock that the deceased had stabbed him with a knife on the back and P. W. 2 had cut him with an axe on the hand, there is not a shred of evidence to support his version. If really the deceased and P. Ws. 1 and 2 were armed, would P. W. 2 have suffered twelve wounds without retaliating, and would the deceased have run for his life by jumping off the bus and then allowed himself to be hacked down by his adversaries without putting up any resistance? The learned Judge appears to have been oppressed by the fact that the eye-wit- nesses had not accounted for all the three injuries found on A-4 but had spoken only to one of the injuries, which was the most serious injury. The learned Judge apparently lost sight of the tense situation in which the witnesses were placed and the desperate struggle in which P. W. 2 and A-4 were involved in a constricted space between two seats of the bus. The two injuries, one of the left forearm and the other on the back, were comparatively minor ones and must have been received in the course of the struggle, when A-4 was trying to use the axe which he had w.ith him and P. W. 2 was trying to wrench it from his hands. The other injury which had penetrated 4' deep into the right side of his back, has been satisfactorily explained by the eye-witnesses. In truth the theory of a 'clash' is a far-fetched one and is based more on imagination than on proved facts or on the probabilities of the case. If there was no fight, the question of who the aggressors were, does not arise, but it is interesting to note that the learned trial Judge was certain in his mind that A-4 and others of his group were the aggressors.
74-80. (After discussing the case of each of the accused, his Lordship proceeded:)
81. In the result, Criminal Appeals Nos. 284 and 285 of 1961 preferred by A-3 and A-4 respectively are dismissed and Criminal Appeal No. 342 of 1961 filed by the State Government is allowed.
82. Criminal Revision Case No. 361 of 1961:This is an application in revision by the State Government for enhancement of the sentence passedon A-3 and A-4 by the Court below under ChargesNos. 1 and 5 respectively, from imprisonment forlife to one of death. The Court below has awardedthe lesser sentence to A-3 because the evidence,does not indicate that he was responsible for in- flicting the fatal blow on the deceased and in thecase of A-4, presumably because he took no partin the actual attack on the deceased. We are notsatisfied that this is a fit case in which we should exercise our revisional power and enhance thesentence passed on each of these accused to oneof death. This Criminal Revision Case is accordingly dismissed.