Arijit Pasayat, J. - (1.) LEAVE granted.
(2.) CHALLENGE in this appeal is to the judgment rendered by a Division Bench of the Andhra Pradesh High Court which upheld the conviction of the appellants for the offence punishable under Sections 148 and 302 read with Section 149 of the Indian Penal Code, 1860 (in short the 'IPC'). In all, six accused persons faced trial. The present appeal is by accused 2, 3 and 6 (in short described as A-2, A-3 and A-6). It is to be noted that the present special leave petition so far as it relates to accused 1, 4 and 5 (in short described as A-1, A-4 and A-5) was dismissed by order dated 21.4.2006 while A-4 and A-5 were convicted for the offence punishable under Section 302 IPC, A-1, A- 2, A-3 and A-6 were convicted for offence punishable under Section 302 read with Section 149 IPC and each of the accused persons were convicted for the offence relatable to Section 148 IPC, for which they were sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.100 each with default stipulation. In respect of offence punishable under Section 302 read with Section 149 IPC each accused was sentenced to undergo imprisonment for life and to pay a fine of Rs.300/- with default stipulation. Prosecution version as unfolded during trial is as follows: On 21.10.1997 at about 5 O'clock near old K.B.S. Office at Chinthareddipalem Donka, Stone Housepet, Nellore, the accused persons formed an unlawful assembly and in pursuance of their common object, they caused the death of one Nellisetti Venu (hereinafter referred to as the 'deceased') by stabbing with knives. According to the prosecution, PW-2 is the paternal uncle's son of the deceased. The deceased and the material witnesses were living in Wood House Sangham in Nellore whereas the accused persons were living in different localities in Nellore Town. A-1 was doing business in gunny bags at Wood House Sangham and accused Nos. 2 to 6 were working as coolies. One week before the incident, accused No.1 harassed PW-6, who is the daughter in law of PW-7. On 20.10.1997 at about 3.00 p.m. PWs 1, 8, 10 Kapu Subba Rao (the husband of PW-6) and the deceased went to the shop of A-1 and chastised A-1 for spreading rumours that PW-6 was having illicit intimacy with one painter.
(3.) ON 21.10.1997 at about 3.30 p.m. a mediation was held at the shop of A-1 in the presence of mediators PW-9 and one Mekala Ramaiah. Both the elders advised the parties to settle the dispute amicably. However, A-1 did not listen to the said advice, while the deceased stated that it is proper to abide by the advice of the elders. Since the mediation failed, both the parties left the place. Subsequently, PWs 1 to 5 and the deceased together joined at Bhaskar's Tea Stall for discussion about the mediation. Then the deceased told them that he had to talk to one Gas Dealer near Sivalayam and he started to go to that place. PWs 1 to 5 accompanied him. ON reaching near KBS office, they saw the accused persons. A-1 instigated the other accused persons to attack them. Then all the accused persons surrounded them with weapons. A-2, A-3 and A-6 caught hold of the deceased. A- 4 dealt two blows with a knife on the back of the deceased. A-5 stabbed the deceased with a knife on the left side of chest below the ribs and also on the right thigh. Seeing this PW's 1 to 5 raised cries. ON hearing their cries, number of people gathered there and upon their arrival, the accused persons went away. Thereafter, PW's 1 to 5 shifted the deceased to Government Head Quarters Hospital in an auto rickshaw. The Doctors examined the deceased and declared him as dead. After 20 minutes, the Sub-Inspector of Police, on receipt of telephonic information, came to the hospital and examined PWs 2 to 5. ON the same day at about 6.45 p.m. PW-1 gave a report (Ex.P1) to PW-18 whereupon he registered a case in Crime No.135 of 1995 under Sections 147, 148, 302 and 506 read with Section 149 IPC and recorded FIR in Ex. P 9. At about 7.30 p.m. PW-19 the Circle Inspector of Police took up investigation, visited the scene of offence and recorded the statements of PW's. PW-19 conducted inquest over the dead body of the deceased in the presence of PW-14 and another. During the course of inquest, PW-19 seized M.Os. 4 to 7 from the dead body of the deceased. At about 1.30 p.m. PW-17 the Civil Assistant Surgeon, Government Maternity Hospital, conducted autopsy over the dead body of the deceased and opined that the cause of death was due to shock and hemorrhage due to multiple injuries as per the post mortem report (Ex.P 7). ON 8.11.1997, PW-19 arrested the accused persons at Ayyappa Swamy Temple, Nellore. Later PW-21 the Circle Inspector of Police sent the material objects to FSL who submitted the report (Ex.P24). ON completion of investigation PW-21 filed charge sheet. The plea of the accused was that of total denial. Twenty one witnesses were examined to further the prosecution version. PWs 1 to 5 were claimed to be eye- witnesses. Placing reliance on the evidence of PWs 1 to 5 the trial Court recorded the order of conviction. The conviction was challenged before the High Court. The main plank of the appellants' argument before the High Court was that there were various inconsistencies and infirmities and the prosecution has failed to establish its case beyond reasonable doubt. It was further submitted that there was discrepancy in the evidence so far as A-1, A-4 and A-5 are concerned. It was further pleaded that A-2, A-3 and A-6 did not make use of any weapon. There was no common intention to kill the deceased and even according to the prosecution the only role attributed to A-2, A-3 and A-6 was that they caught hold of the deceased while the other accused persons inflicted the injuries. Therefore, it was contended that Section 149 IPC has no application. Stand of the prosecution before the High Court was that there was clear cut and direct evidence attributed against all the accused persons and even though the A-2, A-3 and A-6 did not inflict injuries, they facilitated the attacks and in that view Section 149 IPC has been rightly applied.;