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Wednesday, September 4, 2013

murder case -High Court of Andhra Pradesh at Hyderabad dated 13.2.2007 passed in Criminal Appeal No. 41 of 2005, reversing the judgment and order dated 22.12.2004 passed by the Additional Sessions Judge, Kadapa at Proddatur in Sessions Case No. 374 of 2000, by which and whereunder the respondents were found guilty and convicted under Section 148 of Indian Penal Code, 1860 (hereinafter referred as `the IPC’) and awarded a sentence of 2 years each. A1 and A2 had been convicted for the offence punishable under Section 302 IPC and they were awarded life imprisonment with a fine of Rs.500/- and in default, to undergo further simple imprisonment for one month. They were also convicted under the provisions of Section 3 of the Explosive Substances Act, 1908 (hereinafter referred to as the ‘Act 1908’) and had been awarded the sentence of 3 years with a fine of Rs.500/- and Rs.200/- respectively and, in default, to further undergo simple imprisonment for one month and 15 days respectively. They had further been convicted under Section 5 of the Act 1908, and were awarded the punishment of three years with a fine of Rs.500/- each, in default to suffer simple imprisonment for one month. A3 to A6 had been convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.500/- each under Section 302 read with Section 149 IPC and, in default of payment of fine, to undergo a further period of simple imprisonment of one month each. However, A3 was acquitted for the offence under Section 6 of the Act 1908. A4 and A5 were further convicted under Sections 3 and 5 of the Act 1908 and awarded the punishment of 3 years on each count with a fine of Rs.500/- and, in default, to undergo a further period of imprisonment for one month. However, all the sentences were directed to run concurrently.= In view of the above, the findings recorded by the High Court are liable to be set aside being perverse. The appeals succeed and are allowed. The judgment and order of the High Court dated 13.2.2007 passed in Crl.Appeal No. 41 of 2005 is set aside, and judgment and order of the trial court dated 22.12.2004 passed in Sessions Case No. 374/2000 is restored.

published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40724
REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO. 84 of 2011




      Gangabhavani                                               …Appellant


                                   Versus


      Rayapati Venkat Reddy & Ors.
      …Respondents


                                    With


                       CRIMINAL APPEAL NO. 86 of 2011






                               J U D G M E N T




      Dr. B.S. CHAUHAN, J.




      1.    Both these appeals have  been  preferred  against  the  impugned
      judgment and order of the High Court of Andhra  Pradesh  at  Hyderabad
      dated 13.2.2007 passed in Criminal Appeal No. 41  of  2005,  reversing
      the judgment and order  dated  22.12.2004  passed  by  the  Additional
      Sessions Judge, Kadapa at Proddatur in Sessions Case No. 374 of  2000,
      by  which  and  whereunder  the  respondents  were  found  guilty  and
      convicted under Section 148 of Indian Penal  Code,  1860  (hereinafter
      referred as `the IPC’) and awarded a sentence of 2 years each. A1  and
      A2 had been convicted for the offence punishable under Section 302 IPC
      and they were awarded life imprisonment with a fine of Rs.500/- and in
      default, to undergo further simple imprisonment for one  month.   They
      were also convicted under the provisions of Section 3 of the Explosive
      Substances Act, 1908 (hereinafter referred to as the ‘Act 1908’)   and
      had been awarded the sentence of 3 years with a fine of  Rs.500/-  and
      Rs.200/- respectively and,  in  default,  to  further  undergo  simple
      imprisonment for one month and 15 days respectively. They had  further
      been convicted under Section 5 of the Act 1908, and were  awarded  the
      punishment of three years with a fine of Rs.500/- each, in default  to
      suffer simple imprisonment for one month.  A3 to A6 had been convicted
      and sentenced to undergo life  imprisonment  and  to  pay  a  fine  of
      Rs.500/- each under Section 302 read with  Section  149  IPC  and,  in
      default of payment of fine, to undergo a  further  period  of   simple
      imprisonment of one month each.  However, A3  was  acquitted  for  the
      offence under Section 6 of the Act  1908.   A4  and  A5  were  further
      convicted under Sections 3 and 5 of  the  Act  1908  and  awarded  the
      punishment of 3 years on each count with a fine of  Rs.500/-  and,  in
      default, to undergo a further period of imprisonment  for  one  month.
      However, all the sentences were directed to run concurrently.




      2.    Facts and circumstances giving rise to these appeals are that:
      A.    On 4.12.1999, Y. Eswara Reddy (PW.1), Y. Gangadhar Reddy  (PW.2)
      and Y. Gangabhavani (PW.3) were working in their  agricultural  fields
      alongwith Y. Ramachandra Reddy (deceased) and  his  brother  Balagangi
      Reddy and others.
      B.    Y. Ramachandra Reddy (deceased) and his brother Balagangi  Reddy
      supported the Congress-I party in the elections  held  for  the  State
      Assembly, while the accused persons supported the Telugu Desham  Party
      (TDP).  There were ill feelings between two groups  as  there  existed
      chronic factionalism between the families of the deceased and accused.
       In State Assembly elections, the political parties  created  pressure
      on their supporters to get maximum votes, by any means.   The  accused
      persons were waiting for the opportunity to kill Balagangi  Reddy  and
      Y. Ramachandra Reddy (deceased).
      C.    On 4.12.1999, when PW.1 to  PW.3  and  some  others  were  doing
      agricultural work in their  fields  alongwith   Y.  Ramachandra  Reddy
      (deceased)  in  the  morning,  they  heard  weeping  cries  from   the
      agricultural field nearby. All of them rushed to that place and  found
      that Rayapati Narayana Reddy had  died  due  to  electrocution.  After
      sometime, they returned to their fields and attended  to  their  work.
      At 7.30 A.M.,  the  accused  Rayapati  Venkata  Reddy  (A1),  Rayapati
      Ramanjul Reddy (A2), Rayapati Bheema Reddy (A3), Korrapati Rami  Reddy
      (A4), Korrapati Thimma Reddy (A5), Kadiyam Rami Reddy  (A6),  Rayapati
      Thirupathi Reddy (A7), Rayapati Pedda Venkata Reddy (A8), Kadiyam Rama
      Subba Reddy (A9), Rayapati Pedda Venkata Reddy (A10), Rayapati  Chinna
      Bali Reddy (A11), Rayapati Venkata Reddy (A12) and Chinnapureddy  Bala
      Chenna Reddy (A13) came to the fields where PW.1 to PW.3,  namely,  Y.
      Eswara Reddy (PW.1), Y. Gangadhar Reddy  (PW.2)  and  Y.  Gangabhavani
      Reddy (PW.3)  were working armed  with  deadly  weapons  like  sticks,
      knives, bombs and sickles whistling war cries and hurling  bombs  with
      the intent to kill Ramachandra Reddy and Balagangi  Reddy.   Balagangi
      Reddy fled his fields due to fear and was chased by A7  to  A13.  PW.1
      hid himself under cheeky bushes near his field.  Y. Ramachandra  Reddy
      (deceased) fled on his cycle.  A2 hurled a  bomb  which  fell  on  the
      cycle of the deceased and exploded causing the deceased to  fall  from
      his cycle.  A1 also hurled a bomb which hit the head of Y. Ramachandra
      Reddy.  His head was fractured and he died due to  injuries.   A4  and
      A5 also hurled bombs towards the deceased.
      D.    PW.1 to PW.3 witnessed the  same,  however,  failed  to  give  a
      report immediately to the police due  to  fear  of  their  lives.   Y.
      Eswara Reddy (PW.1) preferred a complaint to the  police,  thus,  Case
      Crime No. 137 of 1999 of Muddanur PS was registered. S.V. Ramana, C.I.
      (PW.9) began investigation, and conducted the inquest  over  the  dead
      body of the deceased in presence of R.  Pedda  Naidu  (PW.4)  and   M.
      Pratap Naidu (PW.7).  He also seized blood stained tar,  control  tar,
      bomb blast thread pieces and the cycle of the deceased.  Further,  the
      Dhoti, Banian and waist thread  of  the  deceased  were  also  seized.
      Chappals of A5 which had  been  lying  there  were  recovered  in  the
      presence of M. Pedda Aswartha Reddy  (PW.5).   The  dead  body  of  Y.
      Ramachandra Reddy  (deceased)  was  sent  for  post-mortem  which  was
      conducted by Dr. Y. Karunasree (PW.6) wherein it was  opined  that  he
      died of shock due to a fracture of the skull bones and lacerations  to
      brain matter.  The materials collected were sent for forensic analysis
      and  it  was  found  that  the  bombs  contained  Potassium,  Chlorate
      Chloride, Arsenic, Sulphide and Sulphate etc.
      E.    After concluding the  investigation,  a  chargesheet  was  filed
      against A1 to A13.  During the  trial,  the  prosecution  examined  14
      witnesses.  The accused in their statement under Section 313  of  Code
      of  Criminal  Procedure,  1973,  (hereinafter  referred  to   as   the
      ‘Cr.P.C.’) denied their involvement and submitted that they  had  been
      falsely implicated because  of  political  enmity.  The  defence  also
      examined one  Penugonda  Sreenivasulu  (DW.1),  who  claimed  to  have
      prepared the site  plan  (Ex.X-1)  but  not  on  the  basis  of  scale
      measurement.
      F.    On the basis of the evidence etc., the trial court found  A1  to
      A6 guilty of the aforesaid offences  and  awarded  them  sentences  as
      referred to hereinabove, however, A7 to A13 were acquitted.
      G.    Aggrieved, A1 to A6 filed Criminal Appeal No. 41 of  2005  which
      has been allowed by the High Court.
            Hence, these appeals by the complainant as well as by the  State
      of Andhra Pradesh.


      3.    Shri Sidharth Luthra, learned ASG appearing  on  behalf  of  the
      State of Andhra Pradesh and Shri Huzefa Ahmadi, learned senior counsel
      appearing on behalf of the appellant/complainant, have submitted  that
      the  High  Court  acquitted   the   said   respondents   without   any
      justification.  The High Court mainly found material contradictions in
      the evidence of PW.1 to PW.3 and doubted their presence at  the  place
      of occurrence; considered the delay in lodging the  FIR  fatal;  found
      contradictions in medical evidence and ocular  evidence;  doubted  the
      witnessing of the occurrence as there could be no  visibility  because
      of the smoke created by the bombs at the time of explosion;  PW.1  did
      not mention that A6 used a sickle in the FIR; and that only interested
      witnesses had been examined. It was  contended  that  the  High  Court
      erroneously did the  same  even  though,  the  contradictions  in  the
      medical and ocular evidence were insignificant and the  contradictions
      in the statements of PWs 1 to 3 were minor in nature.  The findings of
      fact recorded by the  High  Court  are  perverse  being  based  on  no
      evidence.  Thus, the appeals deserve to be allowed and the judgment of
      the trial court deserves to be restored.


      4.    Per contra, Shri Altaf Ahmad, learned senior  counsel  appearing
      on behalf of the respondents, opposed the appeal contending that  this
      Court should not interfere with the judgment of the High Court keeping
      in mind the well settled parameters for interference with the order of
      acquittal.  The High Court has given cogent reasons for  acquittal  of
      the respondents. The incident occurred  in  a  faction-ridden  village
      and, admittedly, there  had  been  a  political  rivalry  between  the
      parties.  The delay in lodging the FIR which is at  about  3.00  P.M.,
      though the incident occurred at 7.00 A.M.– 7.30 A.M.,  was  inordinate
      in view of the fact that the  police  had  arrived  at  the  scene  of
      occurrence  at  about  9.00  A.M.   The  FIR  was  lodged  after   due
      deliberation with political leaders.  Thus, no interference is  called
      for and appeals are liable to be dismissed.


      5.    We have considered the rival submissions  made  by  the  learned
      counsel for the parties and perused the records. Before  deciding  the
      factual controversies, we will first deal with LEGAL ISSUES:


      APPEAL AGAINST ACQUITTAL:
      6.     This  Court  has  persistently  emphasised   that   there   are
      limitations while interfering with  an  order  against  acquittal.  In
      exceptional cases where there are  compelling  circumstances  and  the
      judgment under appeal is found to be perverse, the appellate court can
      interfere with the order of acquittal. The appellate court should bear
      in mind the presumption of innocence of the accused and  further  that
      the acquittal by the lower  Court  bolsters  the  presumption  of  his
      innocence. Interference in a routine manner where the  other  view  is
      possible  should  be  avoided,  unless  there  are  good  reasons  for
      interference.


      CONTRADICTIONS IN MEDICAL EVIDENCE AND OCULAR EVIDENCE:


      7.    It is a settled legal proposition that where the evidence of the
      witnesses for the prosecution is totally inconsistent with the medical
      evidence or the evidence of the ballistics expert,  it  amounts  to  a
      fundamental defect in the prosecution case and unless it is reasonably
      explained may discredit the entire case of the  prosecution.  However,
      the opinion given by a medical witness need not be the  last  word  on
      the subject. Such an opinion is required to be tested by the court. If
      the opinion is bereft of  logic  or  objectivity,  the  court  is  not
      obliged to go by that opinion. After all an opinion is what is  formed
      in the mind of a person regarding a particular fact situation. If  one
      doctor forms one opinion and another doctor forms a different  opinion
      on the same facts, it is open to the Judge to adopt the view which  is
      more objective or probable. Similarly, if the  opinion  given  by  one
      doctor is not consistent or probable, the court has no liability to go
      by that opinion merely because it is given by the doctor. “It would be
      erroneous to accord undue  primacy  to  the  hypothetical  answers  of
      medical witnesses to exclude the eyewitnesses’ account which had to be
      tested independently and not treated as  the  ‘variable’  keeping  the
      medical evidence as the ‘constant’ ”.
         Where the eyewitnesses’ account is found credible and trustworthy,
      a medical opinion pointing  to  alternative  possibilities  cannot  be
      accepted as conclusive. The eyewitnesses’ account requires  a  careful
      independent assessment  and  evaluation  for  its  credibility,  which
      should not be adversely prejudged on the basis of any other  evidence,
      including medical evidence, as the sole touchstone  for  the  test  of
      such credibility.
      (Vide: Ram Narain Singh v. State of Punjab, AIR 1975 SC 1727; State of
      Haryana v. Bhagirath, AIR 1999 SC 2005; Abdul Sayeed v. State of M.P.,
      (2010) 10 SCC 259; and Rakesh v. State of M.P., (2011) 9 SCC 698).


      8.      Thus,  the  position  of  law  in  cases  where  there  is   a
      contradiction between medical  evidence  and  ocular  evidence  stands
      crystallised to the effect that  though  the  ocular  testimony  of  a
      witness has greater evidentiary value vis-à-vis medical evidence, when
      medical evidence makes the ocular testimony improbable, that becomes a
      relevant factor in the process of the evaluation of evidence. However,
      where the medical evidence goes so far that it  completely  rules  out
      all possibility of the ocular evidence being true, the ocular evidence
      may be disbelieved.


      CONTRADICTIONS IN EVIDENCE:
      9.    In State of U.P. v. Naresh, (2011) 4 SCC 324, this  Court  after
      considering a large number of its earlier judgments held:

              “In all criminal cases, normal  discrepancies  are  bound  to
           occur in the depositions of witnesses due to  normal  errors  of
           observation, namely, errors of memory due to lapse  of  time  or
           due to mental disposition such as shock and horror at  the  time
           of occurrence. Where the omissions amount  to  a  contradiction,
           creating a serious doubt about the truthfulness of  the  witness
           and  other  witnesses  also  make  material  improvement   while
           deposing in the court, such evidence  cannot  be  safe  to  rely
           upon.   However,    minor    contradictions,    inconsistencies,
           embellishments or improvements on trivial matters which  do  not
           affect the core of the prosecution case, should not  be  made  a
           ground on which the evidence can be rejected  in  its  entirety.
           The court has to form its opinion about the credibility  of  the
           witness and record  a  finding  as  to  whether  his  deposition
           inspires confidence.

               Exaggerations per se do not render the evidence brittle. But
           it can be  one  of  the  factors  to  test  credibility  of  the
           prosecution version, when  the  entire  evidence  is  put  in  a
           crucible for being tested on the touchstone of credibility.

              Therefore, mere marginal variations in the  statements  of  a
           witness cannot be dubbed as improvements  as  the  same  may  be
           elaborations of the statement made by the witness  earlier.  The
           omissions which amount to contradictions in material particulars
           i.e. go to the root of the case/materially affect the  trial  or
           core of the prosecution’s case,  render  the  testimony  of  the
           witness liable to be discredited.”


      A similar view has been re-iterated by this Court in Tehsildar Singh &
      Anr. v. State of U.P., AIR 1959 SC 1012; Pudhu Raja & Anr.  v.  State,
      Rep. by Inspector of Police, JT 2012 (9) SC 252; and  Lal  Bahadur  v.
      State (NCT of Delhi), (2013) 4 SCC 557).


      10.   Thus, it is evident that in case there are minor  contradictions
      in the depositions of the witnesses the same are bound to  be  ignored
      as the same cannot be dubbed as improvements and it is likely to be so
      as the statement in the court is recorded after an  inordinate  delay.
      In case the contradictions are so material that the  same  go  to  the
      root of  the  case,  materially  affect  the  trial  or  core  of  the
      prosecution case,  the  court  has  to  form  its  opinion  about  the
      credibility of  the  witnesses  and  find  out  as  to  whether  their
      depositions inspire confidence.


      EVIDENCE OF A RELATED/INTERESTED WITNESSES:
      11.    It is a settled legal proposition that the evidence of  closely
      related  witnesses  is  required  to  be  carefully  scrutinised   and
      appreciated before any conclusion is made to rest upon  it,  regarding
      the convict/accused in a given case.  Thus,  the  evidence  cannot  be
      disbelieved merely on the ground that the  witnesses  are  related  to
      each other or to the deceased. In case the  evidence  has  a  ring  of
      truth to  it,  is  cogent,  credible  and  trustworthy,  it  can,  and
      certainly should, be relied upon.
      (Vide: Bhagalool Lodh & Anr. v. State of U.P.,  AIR 2011 SC 2292;  and
      Dhari & Ors. v. State of U. P., AIR 2013 SC 308).


      12.   In State of Rajasthan v. Smt. Kalki & Anr.  AIR  1981  SC  1390,
      this Court held:
           “5A. As mentioned above the High Court has declined to  rely  on
           the evidence of P.W. 1 on two grounds: (1)  she  was  a  "highly
           interested"  witness  because  she   "is   the   wife   of   the
           deceased"……For, in the circumstances of the case,  she  was  the
           only and most natural witness; she was the only  person  present
           in the hut with the deceased at the time of the occurrence,  and
           the only person who saw the occurrence. True it is  she  is  the
           wife of the deceased; but she cannot be called  an  'interested'
           witness. She is  related  to  the  deceased.  'Related'  is  not
           equivalent to 'interested. A witness may be called  'interested'
           only when he or she derives some benefit from the  result  of  a
           litigation; in the decree in a  civil  case,  or  in  seeing  an
           accused person punished. A witness who is a natural one  and  is
           the only possible eye witness in the  circumstances  of  a  case
           cannot be said to be 'interested'. In the instant case P.W.1 had
           no  interest  in  protecting  the  real  culprit,  and   falsely
           implicating the respondents.”
                                                   (Emphasis added)


      (See also: Chakali Maddilety & Ors. v. State of A. P.,   AIR  2010  SC
      3473).
      13.   In Sachchey Lal Tiwari v. State of  U.P.,   AIR  2004  SC  5039,
      while dealing with the case this Court held:
           “7.  …..Murders  are  not  committed  with  previous  notice  to
           witnesses; soliciting their presence. If murder is committed  in
           a  dwelling  house,  the  inmates  of  the  house  are   natural
           witnesses. If murder is committed in a street,  only  passers-by
           will be witnesses. Their evidence cannot  be  brushed  aside  or
           viewed with suspicion on the ground that they are  mere  'chance
           witnesses'. The expression 'chance  witness'  is  borrowed  from
           countries where every man's home is considered  his  castle  and
           everyone must have an explanation for his presence elsewhere  or
           in another man's castle. It is quite unsuitable an expression in
           a country where people are less formal and more casual,  at  any
           rate in the matter explaining their presence.”




      14.   In view of the  above,  it  can  safely  be  held  that  natural
      witnesses may not be  labelled  as  interested  witnesses.  Interested
      witnesses are those who  want  to  derive  some  benefit  out  of  the
      litigation/case. In case the circumstances reveal that a  witness  was
      present on the scene of the occurrence and had  witnessed  the  crime,
      his deposition cannot be discarded  merely  on  the  ground  of  being
      closely related to the victim/deceased.


      DELAY IN LODGING FIR AND ITS CONTENTS:
      15.   The case of the prosecution cannot be  rejected  solely  on  the
      ground of delay in lodging the FIR.  The  court  has  to  examine  the
      explanation furnished by the prosecution  for  explaining  the  delay.
      There may be various circumstances particularly the number of victims,
      atmosphere prevailing at the scene of incidence, the  complainant  may
      be scared and fearing the action  against  him  in  pursuance  of  the
      incident that has taken place.  If the prosecution explains the delay,
      the court should not reject the case of the prosecution solely on this
      ground.  Therefore, the entire incident as narrated by  the  witnesses
      has to be construed and  examined  to  decide  whether  there  was  an
      unreasonable and unexplained delay which goes to the root of the  case
      of the prosecution and even if there is some  unexplained  delay,  the
      court has to take into consideration  whether  it  can  be  termed  as
      abnormal.
      (Vide: P. Venkataswarlu v. State of A.P., AIR 2003 SC 574;  and  State
      of U.P. v. Munesh, AIR 2013 SC 147).


      16.    It  is  also  a  settled  legal  proposition  that  merely  not
      mentioning all the names of  all  the  accused  or  their  overt  acts
      elaborately or details of injuries said to have been  suffered,  could
      not  render  the  FIR  vague  or  unreliable.   The  FIR  is  not   an
      encyclopaedia of all the facts.  More so, it is quite natural that all
      the names and details may not be given  in  the  FIR,  where  a  large
      number of accused are involved.


      NON-CROSS EXAMINATION OF A WITNESS ON A PARTICULAR ISSUE:




      17.   This Court in Laxmibai (Dead) Thr. L.Rs. & Anr. v.  Bhagwanthuva
      (Dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 examined the effect of non-
      cross examination of witness on  a  particular  fact/circumstance  and
      held as under:
           “31. Furthermore, there cannot be any dispute  with  respect  to
           the settled legal proposition, that if a party wishes  to  raise
           any doubt as regards the  correctness  of  the  statement  of  a
           witness, the said  witness  must  be  given  an  opportunity  to
           explain his statement by drawing his attention to that  part  of
           it, which has been objected to by  the  other  party,  as  being
           untrue.  Without  this,  it  is  not  possible  to  impeach  his
           credibility. Such a  law  has  been  advanced  in  view  of  the
           statutory provisions enshrined in Section 138  of  the  Evidence
           Act, 1872, which enable the opposite party  to  cross-examine  a
           witness as regards  information  tendered  in  evidence  by  him
           during his initial examination in chief, and the scope  of  this
           provision stands enlarged by Section 146 of  the  Evidence  Act,
           which permits a witness to be questioned, inter-alia,  in  order
           to test his veracity. Thereafter, the unchallenged part  of  his
           evidence is to be  relied  upon,  for  the  reason  that  it  is
           impossible for the witness to  explain  or  elaborate  upon  any
           doubts as regards the same, in the absence of questions  put  to
           him with respect to the circumstances which  indicate  that  the
           version of events provided by him, is not fit  to  be  believed,
           and the witness himself, is unworthy of credit. Thus, if a party
           intends  to  impeach  a  witness,  he  must   provide   adequate
           opportunity to the witness in the witness box, to  give  a  full
           and proper explanation. The same is  essential  to  ensure  fair
           play and fairness in dealing with witnesses.”

     (Emphasis supplied)
      (See also:  Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181; and
      Gian Chand & Ors. v. State of Haryana, JT 2013 (10) SC 515).
      18.   Thus, it becomes crystal clear that the defence cannot  rely  on
      nor can the court base its finding on a particular fact  or  issue  on
      which the witness has not made any statement  in  his  examination-in-
      chief and the defence has not cross examined him on the said aspect of
      the matter.


      19.   The case is thus, required to be examined with reference to  the
      aforesaid legal propositions.
           Y. Eswara Reddy (PW.1) submitted the complaint stating that they
      were working in their respective fields in the morning, and  had  gone
      to the neighbouring field after hearing the hue and cry and found that
      one Rayapati Narayana Reddy had died due to electrocution.  When  they
      returned  and began to work in their field, the accused  persons  came
      there armed with sticks, knives, bombs and sickles and  some  of  them
      were whistling war cries. Y.  Ramachandra  Reddy  (deceased)  and  his
      brother Balagangi Reddy also came there.  The  accused  trespassed  in
      their field and chased the deceased who  escaped  on  his  cycle.   A2
      hurled a bomb at Y. Ramachandra Reddy (deceased) which hit him on  the
      legs and he fell down from the cycle. A1 hurled a bomb which  fell  on
      the head of Y. Ramachandra Reddy (deceased) and A3,  A4  and  A5  also
      hurled bombs which fell in close proximity  of  Y.  Ramachandra  Reddy
      (deceased).  A6 hacked Y. Ramachandra Reddy (deceased) with a  hunting
      sickle on his head.  The witness apprehended danger to  his  life  and
      ran away and hid in the bushes. When he returned he did not  find  any
      person at the scene of occurrence.  He came to the  village  at  10.30
      A.M.   The  police  took  him  into  custody  and  took  him  to   the
      agricultural field where Rayapati  Narayana  Reddy  had  died  as  the
      police suspected him to be involved in his murder. He wanted to  lodge
      a complaint regarding the death of his brother, however, as the police
      was involved in settling down the tension in the village, he was  told
      that it would be registered after some time. He deposed  that  he  was
      totally illiterate and was asked by the police to  get  the  complaint
      written by somebody.  He  submitted  it  later  at  about  1.00  P.M.,
      though, it was shown at 3.00 P.M. He had also disclosed that  the  two
      groups belonged to different political parties and there  was  rivalry
      between them.


      20.   The deposition of Y. Gangadhar Reddy (PW.2), the  nephew  of  Y.
      Ramachandra Reddy (deceased), corroborated the evidence of  Y.  Eswara
      Reddy (PW.1) regarding the death of Rayapati Narayana  Reddy  who  had
      died due to electrocution. They came back to their field  and  started
      working.  The accused persons came fully armed  with  sticks,  knives,
      bombs and sickles and some  of  them  were  whistling  war  cries.  Y.
      Balagangi  Reddy  ran  towards  Railway  Gate.   Narayanamma  and   Y.
      Gangabhavani (PW.3) followed him.  Accused A7 to A13 chased  Balagangi
      Reddy.  Apprehending danger to his life, Y. Ramachandra Reddy  escaped
      on his cycle.  A1 to A6  chased him. A2 threw  a  bomb  which  hit  Y.
      Ramachandra Reddy (deceased) on his legs. He fell down from the cycle.
       A1 hurled another bomb which hit him on his head and  he  suffered  a
      fracture. A3 to A5 also hurled bombs but the same fell  in  his  close
      proximity.  A6 was holding a sickle with which he hacked the  head  of
      deceased.


      21.   Y. Gangabhavani (PW.3) widow of Y. Ramachandra Reddy (deceased),
      duly corroborated the evidence  of  Y.  Eswara  Reddy  (PW.1)  and  Y.
      Gangadhar Reddy (PW.2) by narrating the incident in the  same  manner.
      She also deposed about how her husband fell down from the cycle  after
      being hit by the bomb which was hurled by A2.  Bomb hurled by  A1  hit
      him on his head, which caused fracture on the head of deceased. A3  to
      A5 hurled bombs which exploded by the side of her husband.  A6  hacked
      on the left side of the head of her husband with a hunting sickle. She
      herself could not muster courage to come forward to save  her  husband
      rather, she hid behind the bushes and came out only after  the  police
      arrived. She identified the clothes of her husband and other  articles
      that belonged to him.


      22.   Dr. Y. Karunasree (PW.6) conducted the post-mortem  examination,
      who deposed that she found on the body of Y.  Ramachandra  Reddy,  the
      following injuries:
      ?External Injuries:
           “1) Crushed lacerated extensive injury involving bones  muscles,
           vessels, like soft tissues (including  brain  matter)  parts  of
           skull and right side of  the  face.  Hairy  part  of  the  scalp
           including upper part of the cranium, both eye balls, nose, upper
           jaw, brain matter blown off. Blackening of the injured parts and
           surrounding tissues present. Clotting present over wound edges.


           2) Incised injury 3x2 cms into bone deep size present over  left
           cheek extended and ended into injury No.1.


           3) Crushed lacerated injury involving left eye ball, nose, major
           part of the upper lip and sparing the lower lip.


           4) Multiple various sized splinter injuries present  over  right
           side of the chest and upper  abdominal  region  with  blackening
           surrounding tissues. Clotting present over the wound.
           ?
           ?5) Multiple various sized small contusions  present  over  right
           side back, left axillary's region, left waist region, left  fore
           arm and upper arm and front of the left knee joint.


           6) Multiple various sized spinster injuries with  blackening  of
           surrounding tissues present over front of the right upper  limb,
           front and back of the right thigh and back of left thigh.”




            She opined that deceased appeared to have died of shock  due  to
      fracture of skull bones and  lacerations  of  brain  matter.   In  her
      opinion, death occurred 12 to 14 hours prior to her  examination.   In
      her cross-examination she deposed that:
           ? “….Injury No.2 in EX.P-4 is  possible  by  sharp  edged  weapon
           (Addl. P.P. shown too hunting  sickles  to  the  witness).   The
           injury No.2  is  possible  with  hunting  sickles  shown  to  me
           Blackening mentioned in the Injury No.4 due to  explosion  bomb.
           Injury NO.5 may be possible by falling  on  the  ground.  Injury
           NO.6 is also possible with explosion of bomb…..”


      23.   M. Pratap Naidu (PW.7) was a panch witness in the inquest of the
      dead body of Y. Ramachandra Reddy (deceased). D. Khader Basha, V.A.O.,
      (PW.8) was taken by the police to the place of the occurrence.   There
      he found some bombs in a bucket and he signed some documents regarding
      the recovery of the same.  A1, A2 and A7  were  taken  in  the  police
      custody in his presence. Some hunting sickles and other articles  were
      also recovered from the accused.


      24.   S.V. Ramana, C.I. (PW.9) is the police officer who received  the
      complaint.  He deposed that he was  posted  at  the  concerned  police
      station as an S.I.  He received vague information regarding the deaths
      at Kodigandlapalli village.  In  view  thereof,  he  left  the  police
      station immediately at 9.40 A.M. and reached the place of  occurrence.
      Prior to his arrival, Inspector  of  Police,  Mondapuram  had  already
      reached to the scene of the offence.   On the same day, he received  a
      written complaint at 3.00 P.M., on the basis  of  which,  an  FIR  was
      registered.  In his  cross-examination,  he  explained  that  when  he
      reached the place of occurrence, he asked the persons present there to
      submit a complaint in writing but out of fear, nobody  did  the  same.
      He further deposed that the distance between the  village  and  police
      station was 16 Kms. He reiterated on being asked again in  the  cross-
      examination that he tried his level best to get  a  complaint  from  a
      person not concerned with the faction, but no one came forward.


      25.    S.M. Basha, H.C. (PW.10) is the investigating officer, incharge
      of the police station and he deposed  that  the  case  was  registered
      against the accused persons and he  further  pointed  out  that  three
      murders had taken place and most of  the  police  personnel  had  gone
      there and only one or two persons were left in the police station.  He
      also deposed that after getting the complaint, it was forwarded to the
      Magistrate’s Court which was received therein  on  5.12.1999  at  1.20
      A.M.


      26.   So far as P. Sreenivasulu (DW.1) was concerned,  though  he  was
      examined by the defence, he did not depose with  respect  to  anything
      worth mentioning either in support of prosecution or of the defence.


      27.   In view of the aforesaid evidence, the trial court came  to  the
      conclusion that there was some delay in lodging the FIR  and  came  to
      the conclusion that it was duly established from the evidence of PWs.1
      to 3 that A1 to A6 committed the offence against Y. Ramachandra  Reddy
      (deceased) and their narration about the manner in which  the  offence
      was committed, could not be doubted as the witnesses  have  identified
      the accused persons and material objects particularly M.O.1 to  M.O.6.
      The FSL report (Ex.P-8)  also  dealt  with  pieces  of  thread,  blood
      stained tar road sample and  control  tar  road  sample  contained  in
      M.Os.1, 2, 4 and 7.  The aforesaid articles were  the  result  of  the
      explosion  of  a  mixture  containing  Potassium,  Chlorate  Chloride,
      Arsenic, Sulphide and Sulphate etc.  The court also dealt  with  other
      material objects contained in M.Os.9 and 11  and held that the accused
      had bombs that exploded and killed  Y.  Ramachandra  Reddy  (deceased)
      and, therefore, they were convicted.


      28.   The High Court reappreciated the evidence and found  fault  with
      the  judgment  of  the  trial  Court  and   held   that   there   were
      contradictions in medical evidence and ocular  evidence.  As  per  the
      evidence of Dr. Y. Karunasree (PW.6)  who  conducted  the  post-mortem
      examination,  there were incised injuries 3x2 Cms., bone deep over the
      left cheek which was possible only by a sharp edged  weapon.  However,
      she did not mention in her cross-examination which weapon  could  have
      caused such an injury.


      29.   In view of the fact that there is sufficient evidence on  record
      that Y. Ramachandra Reddy (deceased) was hacked with a hunting  sickle
      and in such a case, A6 was convicted under Section 148 IPC,  the  want
      of such an explanation is irrelevant.  The cause of death as opined by
      the medical evidence was shock due  to  fracture  of  skull  bone  and
      lacerations to the brain  matter  and  that  in  normal  circumstances
      injury Nos. 1 to 3 could cause death. The doctor specifically  deposed
      that Y. Ramachandra Reddy (deceased) died of a fracture of skull bones
      i.e. injury no. 1.  Dr. Y. Karunasree (PW.6)  further  explained  that
      she did not mention the type of weapon used for the  reason  that  she
      was not asked about the same.   However, she had clearly deposed  that
      injury no. 2 could have  been  caused  by  a  hunting  sickle.    This
      evidence of Dr. Y. Karunasree (PW.6) stood fully corroborated  by  the
      version given by PWs. 1 to 3 who have clearly deposed that  A6  hacked
      the deceased with hunting sickle on his head.


      30.   In view thereof, we cannot concur with the finding  recorded  by
      the High Court on this aspect. The High Court has also taken  note  of
      the fact that the overt act assigned to A6 has not been  mentioned  in
      the FIR.  The evidence on record clearly revealed that A1 to  A6  came
      armed  with  deadly  weapons  whistling  war  cries  and   chased   Y.
      Ramachandra Reddy (deceased). The trial court convicted  A6  with  the
      aid of Section 149 IPC and not independently for the reason  that  the
      trial court was not satisfied that A6 had  hacked  the  deceased.   D.
      Khader Basha, V.A.O., (PW.8), who was the witness to  the  recoveries,
      deposed that seizure of hunting sickle etc. was made at the disclosure
      statement of the accused and he had signed the recovery memos for  the
      same.   Thus, the observations made by the High Court in  this  regard
      cannot be approved.


      31.   The High Court erroneously observed that the  eye-witnesses  did
      not speak of the explosion of bombs by certain accused and, therefore,
      their presence at the place of occurrence was doubted and  they  could
      also not have seen the incident because of smoke from  the  explosion.
      Such a finding was totally unwarranted,  uncalled for and is  perverse
      being based on no evidence.  Not a single question had been put to the
      eye-witnesses in this respect and,  therefore,  there  is  nothing  on
      record to show that their visibility was impaired due to the emanating
      of smoke and the said finding recorded by  the  High  Court  could  be
      simply termed as illogical. The witnesses deposed that A3 to  A5  also
      hurled the bombs which had fallen in close vicinity of the body of  Y.
      Ramachandra Reddy (deceased) though they did  not  hit  him.   It  was
      specifically mentioned that bombs hurled by A1 and  A2  had  hit  him,
      therefore, it is clear that there is no discrepancy in  the  testimony
      of the eye-witnesses with respect to the overt acts  of  the  accused.
      More so, the High Court doubted the version given by Y.  Eswara  Reddy
      (PW.1) that out of fear he hid himself behind the bushes and  returned
      after some time and when he came back  there,  he  did  not  find  any
      person, though, in his cross-examination, he  explained that about two
      hundred persons gathered at the place of occurrence after the  accused
      had left the place.  The evidence is to be  examined  considering  the
      tension prevailing at the place of occurrence. It is natural  that  in
      such a fact-situation every person  would  feel  the  apprehension  of
      danger to his life and may run away.  There may be some discrepancy in
      his evidence in cross-examination but it  has  to  be  examined  while
      taking into consideration the evidence on record as a  whole.   As  he
      explained the gathering of a crowd  consisting  of  approximately  200
      persons, may have been at a later point of time.  Therefore, merely on
      the basis of such a statement his presence could not  be  doubted  and
      his version could not be discarded.


      32.   So far as the delay in lodging of FIR is concerned, it has to be
      considered in light of the prevailing circumstances  on  that  fateful
      day when two persons were murdered and third  died  of  electrocution.
      The incident occurred in a  faction  ridden  village  having  only  80
      houses.  The accused persons used bombs etc. for killing two  persons.
      The police arrived at 10 O’clock in the morning in  the  village.   Y.
      Eswara Reddy (PW.1) was taken into custody suspecting his  involvement
      in  the  murder  of  Rayapati  Narayana  Reddy   who   died   due   to
      electrocution. Therefore,  in  such  a  fact-situation,  such  adverse
      inference could not have been drawn and testimony of Y.  Eswara  Reddy
      (PW.1), who had submitted the FIR, since  he  was  illiterate  and,  a
      rustic villager and did not know the niceties of  law,  could  not  be
      doubted.  When he lodged an oral complaint, he was  asked  to  get  it
      written by somebody and then present  it  for  lodging  the  FIR.  The
      police officials made it clear in their  cross-examination  that  they
      had asked persons present  at  the  place  of  occurrence  to  give  a
      complaint in regard to the incident twice, but nobody came forward  to
      give it.  In view thereof, we do not think that a person who had  lost
      two of his family members and had been suspected of being involved  in
      the murder of Rayapati Narayana Reddy who died  due  to  electrocution
      alongwith the fact that no  other  person  was  willing  to  submit  a
      complaint, the delay of 6 hours, could be fatal, particularly in  view
      of depositions of the eye-witnesses.  Thus, the delay has  been  fully
      explained by the prosecution and there was no occasion  for  the  High
      Court to take it to be fatal to the case of the prosecution.
      33.   There could be no reason for the eye-witnesses i.e. PWs 1 to  3,
      who had lost two of their family members,  to  falsely  implicate  the
      respondents and spare the real assailants.
      34.   In view of the above, the findings recorded by  the  High  Court
      are liable to be set aside being perverse. The appeals succeed and are
      allowed.  The judgment and order of the  High  Court  dated  13.2.2007
      passed in Crl.Appeal No. 41 of 2005 is set  aside,  and  judgment  and
      order of the trial court dated 22.12.2004 passed in Sessions Case  No.
      374/2000 is restored. The respondents are directed to surrender within
      a period of 4 weeks from today to serve out  the  remaining  sentence,
      failing which  the  learned  Additional  Sessions  Judge,  Kadapa,  is
      requested to take them into custody and send them  to  jail  to  serve
      their left over sentences. A copy of this judgment be sent to the said
      court for information and compliance.


                                                     ……..…………..…………J.
                                                      (Dr. B.S. CHAUHAN)


                                                      ………..……………..……J.
                                                      (S.A. BOBDE)
      New Delhi,
      September 4, 2013























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