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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     454     OF     2009   

Busi Koteswara Rao & Ors.                      .... Appellant(s)

Versus

State of A.P.                   .... Respondent(s)

WITH CRIMINAL     APPEAL     NO.     455     OF     2009   

J     U     D     G     M     E     N     T   

P.Sathasivam,J.

1) These appeals are directed against the final judgments  

and orders dated 20.06.2007 and 13.06.2007 of the High  

Court of Judicature, Andhra Pradesh at Hyderabad in  

Criminal Appeal Nos. 368 and 367 of 2003 respectively  

whereby the High Court while setting aside the conviction and  

sentence of other accused, partly allowed the criminal appeals  

upholding the conviction of the appellants herein for the  

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offences punishable under Sections 148 and 436 of the Indian  

Penal Code, 1860 (in short ‘the IPC’) and reduced the sentence  

for the offence punishable under Section 436 of the IPC from 7  

years to 3 years while maintaining the amount of fine and  

directed the appellants herein to surrender themselves before  

the trial Court in order to serve the remaining period of  

sentence.   

2) Brief facts:

a) There were land disputes between two groups at  

Pedagarlapadu Village, Guntur District, Andhra Pradesh in  

respect of the lands belonging to the Temples which were  

leased out by the Endowments Department to the upper class  

people of the village and there was resentment in local dalits  

for the same.  One day, the agitators trespassed into the said  

lands, in respect of which, Pinnam Peda Subbaiah-the  

leaseholder filed a complaint which resulted into a deep seated  

rivalry between the two groups.

b) In order to take revenge, the other party attacked the  

leaseholder to commit his murder.  In retaliation, on  

14.04.1997, the accused/appellants, formed an unlawful  

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assembly, armed with deadly weapons, raided the Harijan  

colony and set ablaze around 50 dwelling houses of the  

prosecution party and abused them in the name of their caste.  

c) The Inspector of Police, Dachepalli took up the  

investigation which culminated into registration of Crime Nos.  

29 and 28 of 1997 and later, the case was transferred to the  

Crime Investigation Department (CID).  The Deputy  

Superintendent of Police, CID, Vijayawada filed the charge  

sheet against the accused persons for the offence punishable  

under Sections 147, 148, 435, 436 read with Section 149 IPC  

and Sections 3(1)(v), 3(1)(x), 3(2)(v) and 3(2)(iv) of the  

Scheduled Castes and the Scheduled Tribes (Prevention of  

Atrocities) Act, 1989 (in short ‘the SC & ST Act’).

d) The cases were committed to the Court of Special  

Sessions Judge, Guntur under the SC & ST Act and numbered  

as S.C. Nos. 63/S/2000 and 62/S/2000.  In both the cases,  

by separate orders dated 24.03.2003,  the Special Sessions  

Judge found the appellants herein and others guilty for the  

offence punishable under Sections 148 and 436 of the IPC and  

convicted and sentenced each of them to suffer RI for one year  

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and to pay a fine of Rs.2000/- each, in default, to further  

undergo simple imprisonment (SI) for one month for the  

offence punishable under Section 148 IPC and further  

sentenced each of them to suffer RI for 7 years and to pay a  

fine of Rs.10,000/-, in default, to further undergo SI for two  

months for the offence punishable under Section 436 IPC read  

with Section 149 IPC.

(e) Aggrieved by the said order of conviction and sentence,  

the two appeals being Criminal Appeal Nos. 368 and 367 of  

2003 were filed before the High Court.   

(f) By impugned order dated 20.06.2007 in Criminal appeal  

No. 368 of 2003 and order dated 13.06.2007 in Criminal  

Appeal No. 367 of 2003, the High Court, partly allowed the  

appeals and while setting aside the conviction and sentence of  

other accused, upheld the conviction of the appellants herein  

for the offences punishable under Sections 148 and 436 IPC  

but reduced the sentence for the offence punishable under  

Section 436 IPC from 7 years to 3 years while maintaining the  

amount of fine.  

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g) Aggrieved by the said order, Busi Koteswara Rao (A-1),  

Pinnam Nageswara Rao (A-4) and Busa Mattayya (A-30) have  

filed Criminal Appeal No. 454 of 2009 and Busi Koteswara Rao  

(A-1), Katakam Pedda Biksham (A-11), Katakam China  

Biksham (A-12), Busa Mattayya (A-13), Busa Kotaiah (A-14),  

Pinnam Rangaiah (A-15), Pinnam Sankar (A-17), Pinnam  

Nageswara Rao (A-19), Boosa Srinu (A-21), Marasu Venkata  

Swamy (A-22), Pinnam Ramana (A-24) and Pinnam China  

Subbayya A-25 have filed Criminal Appeal No. 455 of 2009  

before this Court by way of special leave.

3) Heard Mr. V. Sridhar Reddy, learned counsel for the  

appellants/accused and Mr. Mayur R. Shah, learned counsel  

for the respondent-State.

4) In the case on hand, total 79 persons were chargesheeted  

for various offences under IPC including Sections 147, 148  

and Section 436.  Though the prosecution has examined 52  

witnesses and exhibited 12 documents in support of their  

case, among those witnesses, PWs 1-42 alone were cited as  

the eye-witnesses to the occurrence.  Due to the arson and  

violence that had happened on 14.04.1997 between two  

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groups of the same village, about 50 dwelling houses reduced  

into ashes.  PWs 2, 4-15, 18, 20, 22, 23 and 26-41 did not  

support the case of the prosecution and were declared hostile  

witnesses.  On the other hand, PWs 1, 3, 16, 17, 19, 21, 24,  

25 and 42 supported the version of the prosecution.

5) According to the prosecution, there was a friction  

amongst the two groups of the same village.  The prosecution  

party belongs to Telugu Desam Party and the accused Party  

belongs to Congress (I).  It is also projected by the prosecution  

that apart from the political rivalry, there is also serious  

enmity between the parties in respect of lease of temple lands.  

There is no dispute that the incident occurred on 14.04.1997  

was a group clash between two rivalries.  In such type of  

incidents, an onerous duty is cast upon the criminal courts to  

ensure that no innocent is convicted and deprived of his  

liberties.  At the same time, in the case of group clashes and  

organized crimes, persons behind the scene executing the  

crime, should not be allowed to go scot-free.  In other words,  

in cases involving a number of accused persons, a balanced  

approach by the court is required to be insisted upon.  In a  

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series of decisions, this Court has held that in cases of arson  

and murder where large number of people are accused of  

committing crime, the courts should be cautious to rely upon  

the testimony of witnesses speaking generally without specific  

reference to the accused or the specific role played by them.   

(6) Even, as early as in 1965, a larger Bench of this Court in  

Masalti & Ors. vs. The State of Uttar Pradesh, AIR 1965  

SC 202 considered about how the prosecution case is to be  

believed.  The principles laid down in para 16 of the decision  

are relevant which is as under:-     

“16. Mr Sawhney also urged that the test applied by the  High Court in convicting the appellants is mechanical. He  argues that under the Indian Evidence Act, trustworthy  evidence given by a single witness would be enough to  convict an accused person, whereas evidence given by half a  dozen witnesses which is not trustworthy would not be  enough to sustain the conviction. That, no doubt is true; but  where a criminal court has to deal with evidence pertaining  to the commission of an offence involving a large number of  offenders and a large number of victims, it is usual to adopt  the test that the conviction could be sustained only if it is  supported by two or three or more witnesses who give a  consistent account of the incident. In a sense, the test may  be described as mechanical; but it is difficult to see how it  can be treated as irrational or unreasonable. Therefore, we  do not think any grievance can be made by the appellants  against the adoption of this test. If at all the prosecution may  be entitled to say that the seven accused persons were  acquitted because their cases did not satisfy the mechanical  test of four witnesses, and if the said test had not been  applied, they might as well have been convicted. It is, no  doubt, the quality of the evidence that matters and not the  

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number of witnesses who give such evidence. But sometimes  it is useful to adopt a test like the one which the High Court  has adopted in dealing with the present case.”

7) It is clear that when a criminal court has to deal with  

evidence pertaining to the commission of an offence involving  

a large number of offenders and a large number of victims, the  

normal test is that the conviction could be sustained only if it  

is supported by two or more witnesses who give a consistent  

account of the incident in question.

8) No doubt, in State of U.P. vs. Dan Singh and Others  

(1997) 3 SCC 747, a Bench of two-Judges, in para 48 has held  

that “……it would be safe if only those of the respondents  

should be held to be the members of the unlawful assembly  

who have been specifically identified by at least 4 eye-

witnesses….”   

9) We have already quoted the requirements for convicting  

an accused in a clash between two groups as per Masalti  

(supra) which is a larger Bench decision of this Court.  In the  

light of the same, we reiterate and hold that when an unlawful  

assembly or a large number of persons take part in arson or in  

a clash between two groups, in order to convict a person, at  

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least two prosecution witnesses have to support and identify  

the role and involvement of the persons concerned.

10) With the above background, let us consider whether the  

impugned order of the High Court convicting A-1, A-4 and A-

30 in Criminal Appeal No. 454 of 2009 and A-1, A-11, A-12, A-

13 to A-15, A-17, A-19, A-21, A-22, A-24 and A-25 in Criminal  

Appeal No. 455 of 2009 is sustainable.   

11) We were taken through the statements of witnesses who  

supported the case of the prosecution.  We also perused all the  

relevant documents and connected papers.  As discussed by  

the High Court, PWs 1-21 spoke about the participation of A-1  

and A-38 whereas PWs 3 and 42 narrated with regard to the  

participation of A-4 and PWs 16 and 17 described about the  

participation of A-30.  In the same way, the participation of  

the above mentioned 12 accused persons in Criminal Appeal  

No. 455 of 2009 has been spoken to by two or more witnesses.  

12) By applying the principles laid down in Masalti (supra)  

and as reiterated by us in the above paragraphs, inasmuch as  

at least two prosecution witnesses have spoken to about the  

involvement and the role played by the above accused persons,  

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we have no reason to differ with the decision arrived by the  

High Court.  It is clear from the statements made by the  

witnesses on the side of the prosecution that the  

appellants/accused came in a mob and set ablaze around 50  

dwelling houses and reduced them into ashes and the same  

were identified and their involvement is established by the  

reliable prosecution witnesses beyond reasonable doubt which  

cannot be disturbed.  On the other hand, we fully endorse the  

view and the ultimate decision arrived by the High Court.  

13) Coming to the sentence, the prosecution has established  

the offence under Sections 148 and 436 of IPC.  Insofar as the  

appellants are concerned, though the trial Court has awarded  

7 years of imprisonment, the High Court reduced the same to  

3 years while maintaining the fine amount.  In fact, Section  

436 IPC enables the court to award punishment with  

imprisonment for life or with imprisonment of either  

description for a term which may extend to 10 years in  

addition to the fine.  We have already noted that the dwelling  

houses of PWs 1-42 were set on fire and reduced into ashes by  

the above appellants/accused and the same have been duly  

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established by the prosecution beyond reasonable doubt.  

Taking note of the sentence prescribed under Section 436 of  

IPC, we are of the view that even the reduction of sentence by  

the High Court is not warranted, however, in the absence of  

appeal by the State, we are not inclined to disturb the same.  

14) In the light of the above discussion, both the appeals are  

dismissed.  In view of the fact that this Court on 06.03.2009  

enlarged all the appellants on bail, if any portion of the  

sentence is left out, they are directed to surrender within a  

period of 2 weeks from today to undergo the remaining  

sentence.   

………….…………………………J.                  (P. SATHASIVAM)                                  

       ………….…………………………J.                 (RANJAN GOGOI)  

NEW DELHI; NOVEMBER 22, 2012.

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ITEM NO.1-E              COURT No.3              SECTION II (For judgment)

               S U P R E M E   C O U R T   O F   I N D I                          RECORD OF PROCEEDINGS

CRIMINAL     APPEAL     NO.454/2009    

BUSI KOTESWARA RAO & ORS.                       Appellant(s)

   Versus

STATE OF A.P.                 Respondent(s)

WITH     CRIMINAL     APPEAL     NO.455/2009   

DATE :22/11/2012       These matters were called    on for pronouncement of judgment  today.  

For Appellant(s)     Mr. V.N. Raghupathy, Adv.

For Respondent(s)     Mr. D. Mahesh Babu, Adv.         Mr. Mayur R. Shah, Adv.          Ms. Savita Devi, Adv.          Ms. Suchitra Hrangkhawl, Adv.          Mr. Amit K. Nain, Adv.          Mr. M.B. Shivudu, Adv.

      Hon'ble Mr. Justice P. Sathasivam  pronounced the  judgment of the Bench comprising His Lordship and Hon'ble Mr.  Justice Ranjan Gogoi.

   The appeals are dismissed.  In view of the fact that  this Court on 06.03.2009 enlarged all the appellants on bail,  if any portion of the sentence is left out, they are directed  to surrender within a period of 2 weeks from today to undergo  the remaining sentence.   

 (Usha Bhardwaj)              (Savita Sainani)     (Court Master)                          (Court Master)

      [Signed reportable judgment is placed on the file ]