Krishna Rao, J.
1. The appellants were accused 1, 5, 6 and 8 in Sessions Case No. 6 of 1954 before the Sessions Judge, Anantapur. Accused 1, 5 and 6 have been sentenced to transportation for life under Sections 34 and 302, I.P.C. for having, on 21-8-1953, murdered
one Deviah at Thimmampalli by stabbing him with spears. The 8th accused has been sentenced to rigorous imprisonment for 18 months under Section 324, I.P.C. for having caused hurt to P.W. 1, Chinna Subbarayudu, by beating him with a stick during the same transaction. Five other persons, who were arrayed in the case as accused 2 to 4, 7 and 9, were acquitted.
2. The case for the prosecution was that all the nine accused were members of unlawful assembly, and that in prosecution of the common object thereof, accused 1 to 6 carried out the attack and killed Deviah. All the nine accused were therefore charged for offences punishable under Section 148, I.P.C. and under Sections 149 and 302, I.P.C.
In addition, accused 1 to 7 were charged under Sections 34 and 302, I.P.C. on the ground that accused 1, 2, 5 and 6 stabbed Deviah to death with spears, and accused 3 and 4 dragged him during the attack, having been instigated to do so by the 7th accused. Accused 3, 4, 6, 8 and 9 were also charged under Section 324, I.P.C. for having beaten P.W. 1 with sticks at the time. The motive alleged for the occurrence was the admitted existence of acute faction between Deviah's party and one Kethireddy Rami Reddi's party to which the accused belonged.
The learned Sessions Judge acquitted all the accused of the charges under Sections 148, 149 and 302, I.P.C. upon the view that some evidence of premeditation or preparation, is necessary to impute a common object to the members of an unlawful assembly. This view is in the teeth of the Explanation to Section 141, I.P.C. which provides that 'An assembly, which was not unlawful when it assembled, may subsequently become an unlawful assembly'.
But, there is no appeal by the State against the acquittal of any of the accused, and it is not necessary for the purpose of the appeal before us to go into this error in the learned Sessions Judge's judgment or into certain other errors such as his view of the scope of Section 342, Cr. P.C. We are concerned only with the charges framed by him under Sections 34 and 302 I.P.C. and under Section 324, I.P.C.
3. The material evidence on the side of the prosecution was the direct evidence on P.Ws. 1 to 4, all of whom uniformly spoke to the acts of the accused covered by these two charges. The learned Sessions Judge felt himself unable to accept their evidence in its entirety. He found that accused 2 and 3 were entitled to the benefit of the doubt in view of the evidence regarding their alibi given by D.Ws. 1 and 2. On this ground he acquitted accused 2 and 3.
He also did not accept the evidence as regards the wordy instigation attributed to the 7th accused, the dragging of Deviah attributed to the 4th accused, and the beating of P.W. 1 by accused 4, 6 and 9 for which there were no corresponding injuries on P.W. 1. He therefore acquitted accused, 4, 7 and 9 as well and convicted accused 1, 5, 6 and 8 alone as mentioned above,
4. The 6th accused died in jail during the pendency of the appeal, and therefore the appeal abates so far as he is concerned. Sri P. Basi Reddi, the learned Counsel for the appellants, does not dispute that in view of the medical evidence, Deviah must have been attacked with spears and murdered at about 3-30 P.M., on 21-8-1953, the time of the occurrence alleged by the prosecution.
His principal contention is that as the only evidence against the appellants is the oral evidence of P.Ws. 1 to 4, which equally implicated accused 2 and 3, and as accused 2 and 3 have been acquitted because of the proof of their alibi, the evidence of P.Ws. 1 to 4 cannot be relied upon as against the appellants for convicting them, In view or this contention, it becomes necessary for us to examine the reasons for the acquittal of accused 2 and 3, although as already mentioned, there is no appeal by the State against their acquittal.
5. It is common ground that there has been faction for some years at Thimmarnpalli between the accused's party led by one Kethireddi Ramireddi and the opposite party led by Deviah. This gave rise to security proceedings against members of both the parties and to a number of criminal cases between the members of either party against the other. In the security proceedings, P.Ws. 1 and 2 were ranged in Deviah's party.
Owing to the acute ill-feeling between the parties, reserve police were stationed in the village for bandobust duty for some time and were with drawn only on 6-8-1953. Two criminal cases due to the faction were actually pending on 21-8-1953. One was for shooting dead Talari Subbanna of Deviah's party on P. W. l's terrace, about 8 or 10 months earlier.
Accused 4 to 8 were accused in that murder case, and it was committed to sessions a few days before 21-8-1953. The other case was against accused 2, 3, 5, 6, and 8 for causing hurt to one Yerikalappa of Deviah's party. P,W. 2 was a witness for the prosecution in that case, and it was heard before the District Magistrate at Gooty on 20-8-1953, the day prior to the occurrence. We have to appraise the evidence from this back-ground of the faction, in which P.Ws. 1 and 2 and Deviah were some of the persons ranged on one side and the accused were some of the persons ranged on the other.
6. The events of the occurrence have been narrated by P.Ws. 1 to 4, On 21-8-1953, between 3 and 3-30 P.M., Deviah and P.W. 1 were sitting on a stone platform known as Chodammakatta near their houses and playing a game called pudi-jitam, P.W. 2, who had returned to the village after giving evidence in the case at Gooty on the Previous day, sat by their side watching the game and got down from the katta just before the occurrence for passing urine,
P.W. 3 who lives in the opposite side of the street, was sitting on his pial about 30 feet off 'from the katta P, W. 4, the 13 year old son of Deviah, was playing by himself near the katta. At about 3-30 P.M., the accused's party suddenly came to the katta from the north armed with lethal weapons. Accused 1, 2, 5 and 6 had spears, accused 3, 4, 8 and 9 had sticks and the 7th accused alone was unarmed.
The 7th accused cried 'Stab' whereupon accused 1 and 2 stabbed Deviah with spears on the right side of the stomach and a little below the right arm pit respectively. At this stage, the 8th accused beat P. W. 1 with a stick on the head, and the 9th accused similarly beat him on the back. Accused 3 and 4 dragged Deviah down to the west of the katta, and accused 5 and 6 speared him on his back. The 7th accused again instigated his companions saying 'kill him'.
Accused 1 and 2 dragged Deviah southwards to the front of one Chinna Nagappa's house and speared him a number of times. He died there, and meanwhile, P. W. 1, who was going towards his house, was beaten with sticks and felled down by accused 3, 4, 6 and 8. All the accused then left the scene, and P. W. 1 and Deivah's dead body were taken to P, W. l's house.
7. Ex. P-1 is the first information of the occurrence recorded from P. W. X at his house by P. W. 8, the village Munsiff, between 4 P.M. and 5 P.M., on the same day. It mentions all the nine accused & the particulars of how they attacked Deviah and P. W. 1, consistently with the evidence of P. Ws. 1 to 4 at the trial. The only defect in Ex. P-1 commented upon by Sri P. Basi Reddi is that there is no mention in it of any direct witnesses besides P. W. 1 himself.
He argues that P. W. 1 was influenced by his partisans in the faction to falsely implicate the accused in Ex. P-1, and that P. Ws. 2 to 4 were got up as direct witnesses by the time of the inquest on the next day.
8. It is no doubt manifest that P. Ws. 1 to 4 have all to be classed as interested witnesses. P. Ws. land 2 belong to Deviah's party in the faction and P. W. 4 is Deviah's son. P. W. 3 is a weaver who was working under P. W. l's uncle for the past 15 years. Thus P. Ws. 2 to 4 are persons who could have been easily persuaded to support, if necessary, a false complaint by P. W- 1.
With regard to the defence suggestion that Deviah's partisans in the faction influenced P. W. 1 to give a false complaint, P. W. 1 categorically said that none of the partisans had come to his house by the time of P. W. 8's arrival. But Deviah's cousin P. W. 5 contradicted P. W. 1 on the point and said that five or six partisans were at P. W. l's house when P. W. 8 came there. On the question why he omitted to mention P. Ws. 2 to 4 in Ex. P-1, P. W. 1. explained that he thought that the information had to be given only to the police.
As against this, we have to take into consideration P. W. 8's evidence that although he was near P. W. l's house throughout the night of 21-8-1953, he did not know who were the direct witnesses until the time of the inquest on the next morning. In view of this evidence and of the fact that Ex. P-1 runs into details of the occurrence, there is considerable force in the defence contention that no reference was made in Ex, P-1 to the direct witnesses besides P. W. 1, because it had not been decided at the time as to who were to be put forward as the direct witnesses.
Having regard to all these circumstances we consider that although no less than three persons P. Ws. 2 to 4 corroborate P. W. 1, their corroboration would not materially add to the weight of P. W. l's own evidence.
9. The police arrived at Thimmampalli for investigation in the early hours of 22-8-1953. All the nine accused had disappeared from the village by that time and were apprehended subsequently on various dates. At the trial, every one or them pleaded 'alibi', but evidence was adduced in support of the 'alibi' of only accused 2, 3 and 8. The learned Sessions Judge disbelieved the 8th accused's 'alibi' sought to be proved through D. Ws. 5 and 6, and it has not been seriously contended before us that we ought to take a different view of the matter.
As regards the 'alibi' of accused 2 and 3, the learned Sessions Judge accepted the evidence of D. W. 2, which was consistent with that of D. W. 1, and held that accused 2 and 3 must have been at Tadpatri until about 12 noon or 1 P, M, on 21-8-1953, Tadpatri is about 15 miles by foot-path, 21 miles by cart track and 27 or 28 miles by road from ThimmampaUi. As the evidence was that the only public conveyance i.e., the bus between the two places leaves Tadpatri at about 3 P.M., and reaches Thimmampalli at about 5 P.M., he inferred that accused 2 and 3 could have reached Thimmampalli by 3-30 P.M., the time of the occurrence, only if they had been able to secure a fast or motor conveyance specially for themselves.
In the absence of any evidence suggesting that they adopted this means of reaching Thimmampalli, the learned Sessions Judge felt a doubt as to whether they did so, and gave them the benefit of the doubt.
10. Sri P. Basireddi contends that the 'alibi' does not rest on a mere doubt, and in our opinion, the contention is well founded, Admittedly, the second accused surrendered himself before P. W. 9, the Circle Inspector, on 29-8-1953 i.e., only 8 days after the occurrence and presented a petition to P. W. 9 at the time setting forth his 'alibi'. The petition was marked as Ex. P-10 in the Committing Court and was referred to in the second accused's statement, but was, for some reason, omitted to be marked at the tiral.
We have perused the petition and find that it gives a detailed account of his movements on 20-8-53 and 21-8-1953, and the names of a number of persons through whom they would be verified consistently with the evidence on his behalf at the trial. His positive story was that after he and the 3rd accused attended the hearing of the case at Gooty on 20-8-1953, they went to Tadpatri by the night train and stayed at Tadpatri with D. W. 1.
On the next morning at about 11 A. M., he caused a post card, which has been marked as Ex. D-18, written in English by a postal employee Srirangayya, signed it and dropped it in a post box at Tadpatri. At about noon, he and the 3rd accused ate their meal, proceeded to D. W. 2's house and borrowed Rs. 200/- from D. W. 2's father as evidenced by the day book entry Ex. D-17(c) signed by the 2nd accused.
Thereafter, they caught the bus from Tadpatri at 3-0 P.M., in which P. W. 2, D. W. 3 and certain other named persons also travelled. On the way, some persons of Deviah's party tried to create trouble alleging that Deviah was murdered, and therefore at the request of accused 2 and 3, the bus did not stop at Tnimmampalli but proceeded to Goddamarri. Accused 2 and 3 alighted there and went away to Simhadripalli and Dantalapalli respectively.
It was also explained in the petition that the conductor and the driver of the bus would not speak in favour of accused 2 and 3, because the bus belonged to one J. C. Nagi Reddy. Accused 2 and 3 adhered to this story of their movements both in the committing Court and at the trial. It was suggested to P. W. 2 in cross-examination, but, he denied that he travelled by the bus and said that he returned from Tadpatri to Thimmampalli by a cart on the night of 20-8-1953.
However, it was elicited from P. W. 8, the village Munsiff, that Deviah's party supported J. C. Nagi Reddi and that the accused's party supported the opposing candidate at the last Assembly Elections.
11. In spite of the prosecution having had ample notice of the defence of 'alibi' of accused 2 and 3, they made no attempt to show that these accused had reached Thimmampalli before the occurrence. If such had been the case, it must have been possible for the prosecution to adduce the evidence of persons who saw accused 2 and 3 in or near the village before 3 P.M., on 21-8-1953.
Sri S. Malakondareddy, who appeared for the Public Prosecutor, said that accused 2 and 3 might have travelled by some friend's car from Tadpatri to their village, but the foundation was not laid by such a theory by a suggestion in the evidence at the trial, in which event accused 2 and 3 might have perhaps attempted to prove that no car was available to them. Sri S, Malakonda Reddy urged that the alleged loan by D, W. 2's father, which; forms the basis for the 'alibi is improbable.
But D. W. 2 belongs to a different community, and has no motive to give false evidence in favour of accused 2 and 3. He is also a person of some status, being a municipal councillor and a President of a Co-operative Stores at Tadpatri. We have carefully considered his evidence and examined the entries in his day book, Ex. D-17, and we see no grounds to differ from the learned Sessions. Judge who believed his evidence.
We might also notice that all the four assessors were unanimous, so far as accused 2 and 3 were concerned, in holding that these accused were not guilty. As the prosecution, in spite of being fully apprised of the positive story of 'alibi' of accused 2 and 3 as early as 11 days before the filing of the charge sheet, made no attempt to explain how or when these accused could have reached Thimmampalli before the occurrence it is legitimate to draw an inference adverse to the prosecution on the point.
The occurrence was not pre-planned, and there was no special purpose for accused 2 and 3 to engage a motor conveyance at Tadpatri after 1 P.M., in order to reach their village. In the circumstances of this case, we are of opinion that the proof afforded by D. W. 2's evidence that accused 2 and 3 were at Tadpatri until about 1 P.M., is sufficient to establish that they could not have participated in the occurrence. It follows that the evidence of P. Ws. 1 to 4 is proved to be false so far as accused 2 and 3 are concerned.
12. The only question that remains to be considered is whether P. Ws. 1 to 4, who have thus given perjured evidence against accused 2 and 3, can be relied upon as against accused 1, 5 and 8. No doubt, there is ample authority for the proposition that the maxim 'falsus in uno, falsus in omnibus' ought not to be applied by Courts in. India. As observed in -- 'Abdul Gani v. State of Madhya Pradesh' : AIR1954SC31 , an efforts ought to be made to disengage the truth from; falsehood and to sift the grain from the chaff in the evidence.
If the false portions of the evidence were merely a fringe of embroidery in the witness' story or if they can be reasonably attributed to some mistake or carelessness on the part of the witness, it would be possible to rely on other portions of the evidence even without independent corroboration. But in the present case, the position is similar to that in -- 'Nem Singh v. Emperor' AIR 1934 All 908 (B) and -- 'Nandia v. Emperor' AIR 1940 Lah 457 (C), where one of the accused was proved to have been falsely implicated.
If accused 2 and 3 were not at Thimmampalli at the time of the occurrence, there is no escaping the conclusion that P. Ws. 1 to 4 have deliberately tried to plant a capital charge on two innocent persons. They say in one voice that they saw the 2nd accused taking a prominent part in the attack on Deviah, that he stabbed Deviah not only at the Chowdammakatta, but also again a number of times in front of Chinna Nagappa's house.
Similarly, they speak to having seen the 3rd accused dragging Deviah down from the Chowdammakatta and at a later stage beating P. W. 1. These acts were fastened on accused 2 and 3 in the first information Ex. P-1, and every one of the direct witnesses have stuck to the story. It is, therefore, impossible to say which and how many other innocent persons of the opposite faction they have falsely implicated in a similar manner.
No doubt, the broad probabilities are that some persons belonging to the same party as the accused must have attacked both Deviah and P. W. 1. But this is all we are in a position to say in favour of the prosecution. On the other hand as accused 2 and 3 have been falsely implicated and given prominent parts in the occurrence we are constrained to hold that it is equally likely that the entire evidence against accused 1, 5 and 8 is also false.
13. The appeal is allowed, the convictions and sentences of accused, 1, 5 and 8 are set aside, and they are acquitted.
14. We would observe that the responsibility for the brutal murder in this case going unpunished must be shared between P. Ws. 1 to 4 and the Police who conducted the investigation. In spite of the 2nd accused having given them the fullest materials for investigating his defence as early as on 29-8-1953, the position of the prosecution evidence remained the same as at the time of the inquest.
It was surely the duty of the Police either to place further materials before the Court of they had found the 'alibi' to be false or to refrain from charge-sheeting accused 2 and 3 if the 'alibi' was true.