THE DRUGS AND COSMETIC ACT - “….Sub-section (4) also makes it abundantly clear that the right to get the sample tested by the Central Government Laboratory (so as to make its report override the report of the Analyst) through the court accrues to a person accused in the case only if he had earlier notified in accordance with sub-section (3) his intention of adducing evidence in controversion of the report of the Government Analyst. To put it differently, unless requirement of sub-section (3) is complied 8with by the person concerned he cannot avail of his right under sub-section (4).”

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.  1489     of 2011
(Arising out of SLP(Crl.) No. 3 of 2011)
GlaxoSmithKline Pharmaceuticals Ltd. & Anr.              …Appellants
         Versus
State of Madhya Pradesh                 …Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. Leave granted.
2. This appeal has been preferred against the judgment and order
dated 14.9.2010 passed by the High Court of Madhya Pradesh at
Jabalpur in Misc. Criminal Case No. 6315 of 2008 which rejected the
application of the appellants for quashing the complaint under theprovisions of The Drugs and Cosmetics Act, 1940 (hereinafter called
`the Act 1940’).
3. Facts and circumstances giving rise to this appeal are that:
A. The Drug Inspector under the Act 1940 had taken a sample of
Betnesol tablets (Batch No. NC 160 Mfg. October 1996, expiry March
1998), manufactured by the appellant-company from the shop of one
Mahesh Agarwal at Chattarpur on 9.12.1996. The statutory authority
sent the medicine for chemical analysis to the laboratory i.e.
Government Analyst, Madhya Pradesh (Bhopal) on 10.12.1996.
B. The said Government Analyst vide certificate dated 27.8.1997
declared that the sample was not of “standard quality” as defined under
the Act 1940. The sample led to “analytical difficulties” for the purpose
of determining compliance with the official standards as stated under
uniformity of content.
C. In view thereof, a show cause notice was issued to the appellantcompany by the statutory authority on 29.9.1997 as to why proceedings
should not be initiated against the appellants and others. The appellant
submitted its reply on 3.11.1997, submitting that sample of the
aforesaid medicine ought to have been examined/analysed under Indian
2Pharmacopoeia (hereinafter called ‘I.P.’) 1996 and it had wrongly
been analysed under I.P. 1985. Subsequent thereto, the department
filed a complaint against the appellants on 3.7.2001 impleading the
company as well as its Managing Director and Officers under the
provisions of the Act 1940. A prayer was made that the appellants and
other accused be punished under Section 35 of the Act 1940 and
information of the said punishment be published in the newspapers at
the cost of the accused.
D. The Chief Judicial Magistrate, Chattarpur, took cognizance and
issued summons to all accused persons including the appellants. The
appellants filed an application under Section 25(3) of the Act 1940
before the Chief Judicial Magistrate, Chattarpur, with a prayer that
sample of Betnesol tablets be sent for chemical analysis to the Director,
Central Drugs Laboratory for being tested as per I.P.1996 on
1.10.2007. The said application stood rejected vide order dated
5.5.2008. The appellants approached the High Court by filing Misc.
Criminal Case No. 6315 of 2008 for quashing the proceedings in
Criminal Case No. 982 of 2001 (State of Madhya Pradesh v. M/s
Aggarwal Medical Stores and Ors.). The said application stood
3rejected by the impugned judgment and order dated 14.9.2010. Hence,
this appeal.
4. Shri R. Ramachandran, learned senior counsel appearing for the
appellants, submitted that the Drugs Inspector issued show cause notice
dated 29.9.1997 which was duly replied by the appellants on
3.11.1997. Therefore, there was no occasion for the respondentauthorities to file a complaint, that is too after the expiry of more than 3
years and 9 months of the expiry date of the medicine itself. The
appellants could not avail their remedy under Section 25(3) of the Act
1940 which can be exercised within 28 days from the date of service of
show cause notice. The chemical analyst’s report was not clear at all.
The certificate declared that the medicine “was not of the standard
quality”. The analyst had analytical difficulties in determining the
compliance with the official standards as stated “Under uniformity of
Contents”. The purpose of exercising his right under Section 25(3) of
Act 1940 is to ask the statutory authority to send the medicine to some
other laboratory for chemical analysis in case the report was not
acceptable to the accused. In the instant case, it was the technical
problem as the fault had been found in view of analytical defects, and
thus, there was no violation of substantive character. There could be no
4justification for the State to file the complaint at such a belated stage.
Thus, the High Court erred in rejecting the application for quashing the
complaint.
5. On the other hand, Ms. Vibha Datta Makhija, learned counsel
appearing for the respondent-State, has vehemently opposed the appeal
contending that the applicants are the manufacturer of drugs and under
Section 18(a)(i) of the Act 1940, they could not manufacture drugs of
sub-standard quality. They could have expressed their option to
adduce evidence in contravention of the analytical report within the
period of limitation i.e. 28 days which they did not do. Unless the
accused has given option that it would adduce evidence in
contravention of the analytical report, it cannot ask the court to send
the medicine for chemical analysis to the Central Government
Laboratory. As no such option had been made by the appellants, they
are not entitled to challenge the report. More so, the onus of proof was
on the appellants to tell as on what date the company had received the
show cause notice dated 29.9.1997. The appellants have not disclosed
the date of receipt of the show cause notice till date. The issue of
launching criminal prosecution at a much belated stage has not been
raised before the High Court in the gravity in which it is being agitated
5before this Court. Appeal lacks merit and thus, is liable to be
dismissed.
6. We have heard the learned counsel for the parties and perused
the records.
7.  The issue involving herein is no more res integra matter. The
issues have been examined time and again. It is a settled legal
proposition that report of the analyst is conclusive. It means that no
reasons are needed in support of conclusion given in the report, nor it is
required that the report should contain the mode or particulars of the
analysis. (See: Dhian Singh v. Municipal Board, Saharanpur &
Anr., AIR 1970 SC 318.)
       
               However, law permits the drug manufacturer to controvert the
report expressing his intention to adduce evidence to controvert the
report within the prescribed limitation of 28 days as provided under
Section 25(3) of the Act 1940. In the instant case, the report dated
27.8.1997 was received by the statutory authorities who sent the show
cause notice to the appellants on 29.9.1997 and the appellants replied
to that notice on 3.11.1997. The case of the statutory authorities is that
option/willingness to adduce evidence to controvert the analyst’s report
6was not filed within the period of 28 days i.e. limitation prescribed for
it. The appellants are the persons who knew the date on which the
show cause notice was received. For the reasons best known to them,
they have not disclosed the said date. It is a company which must be
having Receipt and Issue department and should have an office which
may inform on what date it has received the notice, and thus, should
have made the willingness to controvert the report. In fact, such
application had only been made on the technique adopted for analysis.
It has been the case that instead of testing the medicine under the I.P.
1985, it could have been done under I.P. 1996 because the I.P.1996 had
come into force prior to the date of taking the sample on 9.12.1996.
8. In view of the fact that the appellants did not express an intention
to adduce evidence to controvert the analyst report within the statutory
limitation period of 28 days, further delay in filing the complaint
becomes immaterial. Even otherwise, expiry date of the medicine was
March 1998 i.e. only after 4 months of submission of the reply by the
appellants, and they did not fulfill their burden of expressing intention
to adduce evidence in contravention of the report. Therefore, they
cannot raise the grievance that the complaint had been lodged at a
7much belated stage. So far as the application of I.P. 1985 or I.P. 1996
is concerned, such an issue can be agitated at the time of trial.
9. The judgment in Medicamen Biotech Limited & Anr. v.
Rubina Bose, Drug Inspector, (2008) 7 SCC 196, was heavily relied
on by Shri R. Ramachandran, learned senior counsel appearing for the
appellants. Nevertheless, the facts of the said case are quite
distinguishable. In that case, the complaint had been filed about a
month short of expiry date, and the accused therein had expressed their
option to lead evidence in contravention of the analyst’s report within
limitation time but were not able to do so as shortly thereafter the
medicine expired.
10. We agree with Ms. Makhija that the case is squarely covered by
the judgment of this Court in State of Haryana v. Brij Lal Mittal &
Ors.,   (1998) 5 SCC 343 wherein this Court has held as under:
“….Sub-section (4) also makes it abundantly
clear that the right to get the sample tested by the
Central Government Laboratory (so as to make
its report override the report of the Analyst)
through the court accrues to a person accused in
the case only if he had earlier notified in
accordance with sub-section (3) his intention of
adducing evidence in controversion of the report
of the Government Analyst. To put it differently,
unless requirement of sub-section (3) is complied
8with by the person concerned he cannot avail of
his right under sub-section (4).”
                     
In the said case, like the present case, the manufacturer did not
notify the Inspector within the prescribed period that he intended to
adduce evidence in contravention of the report. Also, akin to the case
at hand, the manufacturer’s right under section (3) of Section 25
expired few months before expiry of shelf life. Holding for the
directors of the manufacturing company on different grounds, the court
opined that the right to get drugs tested by Central Drugs Laboratory
does not arise unless requirement of sub-section (3) is complied with.
11. It is pertinent to mention herein that present appellants had
earlier also been informed by the Drug Inspector of various cities on
many occasions that the aforesaid medicine was i.e. Betnesol Tablet,
was not of standard quality and the authorities had been making an
attempt to initiate proceedings against them. As is evident from the
pleadings taken by the appellants themselves and the letter dated
1.7.1996 (Annexure P-9) wherein the appellant-company wrote a letter
to The Controller, Food and Drug Administration, Madhya Pradesh.
The relevant part thereof reads as under:
9“During the past one month we have
received requests from Drug Inspectors of Dhar,
Rewa, Seoni and Ambikapur all under your kind
control, to provide Memorandum of Articles of
Association, constitution etc. of our company to
initiate action for manufacturing Betnesol Tablets
B.No. NA 660, Mfd. Dec. 92, Exp. May 94, NB
290, Mfd. Nov. 94, Exp. Apr. 96, NB 538, Mfd.
May 95, Exp. Dec. 96 and NB 656, Mfd. Sep. 95,
Exp. Feb. 97, which were earlier declared as not
of standard quality by Government Analyst,
Bhopal for facing analytical difficulties during
the determination of uniformity of content by the
IP 1985 method.”
                                                                   (Emphasis added)
In that letter also the appellant company does not make its
intention clear to adduce any evidence to controvert the Government
Analyst’s report rather made the following request:
“Under these circumstances, we respectfully
reiterate that our product Betnesol Tablets
referred above are of standard quality and request
you to kindly treat all the matter as closed.”
12. As explained hereinabove, the appellants and other co-accused
did not give any option to adduce evidence in contravention of the
analyst’s report within statutory limitation period. Even if there was
inordinate delay in launching the criminal prosecution or filing the
complaint, it is thereby of no consequence. We do not find any ground
10to interfere with the well reasoned judgment of the High Court. The
appeal lacks merit and is, accordingly, dismissed.
……………………………J.
(P. SATHASIVAM)
                     
                                                   ……………………………J.
(Dr. B.S. CHAUHAN)
New Delhi,
July 28, 2011
11

no person should be allowed to keep an advantage which he has obtained by fraud. the contesting respondents herein inflated their marks in order to obtain admission in the primary teachers' training institute. Had the marks not been inflated in the aforesaid manner, the contesting respondents would not have got the admission in that particular institute as it is disclosed from the records. Therefore, the admission sought for was through an illegal means which is to be deprecated. The conduct of the contesting respondents being such, we cannot find fault with the course of action taken by the appellant herein.

                                                                 REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 6007 OF 2011

                 (Arising out of SLP (Civil) No. 26688 of 2010)




DISTRICT PRIMARY SCHOOL COUNCIL, WB                Appellant(s)


                                   VERSUS


MRITUNJOY DAS & ORS.                                          Respondent(s)


                                     WITH


                        CIVIL APPEAL NO. 6008 OF 2011

                 (Arising out of SLP (Civil) No. 26689 of 2010)




                                     O R D E R




1. Leave granted.




2. As the facts and the legal issues arising for our consideration in


  both   these   appeals   are   similar,   we   propose   to   dispose   of   both


  these appeals by this common judgment and order.




3. The contesting respondents herein got themselves admitted for a


  training   course,   for   obtaining   the   Primary   Teachers'   Training


  Institute   certificate,   which   is   pre-requisite   and   mandatory   in


  order to get appointment as Assistant Teacher in primary schools


  in   West   Bengal.     The   contesting   respondents   herein   obtained


  certificates   after   completing   their   training   course.     Thereafter,



                                      Page 1 of 6


   they   also   submitted   their   candidature   for   such   appointment   as


   Assistant Teacher in primary school in which they were selected


   and   were   consequently   appointed   as   teachers.     However,


   subsequently, it was found that they had taken admission in the


   aforesaid training course for Primary Teachers' Training Institute


   Certificate by inflating their marks.   It is pointed out that in the


   said institute, where they got admission for undergoing training,


   the minimum marks that one had to obtain for admission in that


   particular   year   was   600.     Both   the   contesting   respondents


   inflated   their   marks.     In   one   case,   it   was   621   as   against   430


   marks   actually   obtained   and   in   the   other   case,   it   was   614   as


   against   actual   obtained   marks   of   425.     After   the   aforesaid   fact


   came   to   light,   the   appellant   herein   issued   show   cause   notice   to


   the contesting respondents and the contesting respondents were


   also   called   for   a   personal   hearing.     However,   none   of   the


   contesting   respondents   availed   the   opportunity   of   personal


   hearing   given   to   them   despite   the   fact   they   submitted   their


   replies   to   the   show   cause   notices.   The   appellant   thereafter


   passed   orders   dismissing   the   contesting   respondents   from


   service.




4. Being   aggrieved   by   the   said   order   of   dismissal,   the   contesting


   respondents herein filed writ petitions in the Calcutta High Court





                                        Page 2 of 6


      which   were   dismissed.   On   appeals   filed   by   the   contesting


      respondents   before   the   Division   Bench   of   the   High   Court,   the


      same   were   allowed   as   against   which   the   present   appeals   have


      been filed.




5. The   issue   that   arises   for   our   consideration   in   these   appeals   is


      whether the aforesaid order of dismissal issued by the appellant


      was justified in view of the fact that at the time of appointment as


      Assistant   Teacher   in   primary   school,   there   was   no  fraud   played


      by   the   contesting   respondents   and   that   they   had   got   the


      appointment after qualifying in the test held for appointment as


      Assistant Teacher in primary schools.   It is  submitted that  they


      had also completed the training course successfully and got the


      appointment   after  duly   qualifying   in  the   test   and,  therefore,   the


      allegation   which   is   prior   to   the   said   date   could   not   and   should


      not have been given a weightage so as to disentitle the contesting


      respondents   from   continuing   with   their   job.     These   were   the


      contentions of the learned counsel for the contesting respondents


      in the writ petition.




         The  contentions  of the appellant  who were  respondents in  the
6.


      writ   petition   before   the   learned   Single   Judge   are   that   once   a


      fraud   is   played   and   certificate   is   obtained   fraudulently,   such


      conduct is required to be considered as adverse. It was submitted



                                            Page 3 of 6


      that   obtaining   a   certificate   in   a   fradulent   manner,   makes   the


      certificate itself  non-est and void ab initio. It is also submitted by


      the learned counsel appearing for the appellant that the aforesaid


      action   of   dismissal   from   service   of   the   contesting   respondents


      was   taken   in   view   of   their   conduct   as   it   was   thought   that   a


      person of such a conduct should not be allowed to be appointed


      and continue as a teacher in a primary school as at the stage the


      students   whom   the   respondents   are   going   to   teach   are   in


      formative stage.




          We   have   considered   the   submissions   of   the   counsel   for   the
7.


      parties.  On going through the records placed before us, what we


      find   is   that   the   contesting   respondents   herein   inflated   their


      marks   in   order   to   obtain   admission   in   the   primary   teachers'


      training   institute.     Had   the   marks   not   been   inflated   in   the


      aforesaid manner, the contesting respondents would not have got


      the admission  in that particular institute as it is disclosed from


      the records.  Therefore, the admission sought for was through an


      illegal   means   which   is   to   be   deprecated.     The   conduct   of   the


      contesting respondents being such, we cannot find fault with the


      course of action taken by the appellant herein.  It is not that the


      contesting   respondents   were   not   given   any   opportunity   of


      hearing.     They   were   given   a   show   cause   notice   and   were   also





                                           Page 4 of 6


   given   an   opportunity   of   hearing   which   opportunity   they   did   not


   accept although they submitted a reply to the show cause notice.


   There is, therefore, no violation of the principles of natural justice


   in   the   present   case.     If   a   particular   act   is   fraudulent,   any


   consequential   order   to   such   fradulent   act   or  conduct   is  non   est


   and  void   ab   initio  and,   therefore,   we   cannot   find   any   fault   with


   the   action   of   the   appellant   in   dismissing   the   service   of   the


   contesting respondents. In this context we refer to the decision of



   this   Court   in  Ram   Preeti   Yadav  v.  U.P.   Board  of  High  School


   and  Intermediate   Education  and   Others  reported   in  (2003)  8


   SCC 311 for the proposition that no person should be allowed to


   keep an advantage which he has obtained by fraud.




8. In view of the aforesaid position, we set aside the judgment and


   order   passed   by   the   Division   Bench   of   the   Calcutta   High   Court


   and restore the order passed by the learned Single Judge of the


   High Court.




9. The   appeals   are   allowed   to   the   aforesaid   extent   leaving   the


   parties to bear their own costs.





                                              .................................................

..J.

                                              (DR. MUKUNDAKAM SHARMA)





                                        Page 5 of 6


                      .............................................J.

                      (ANIL R. DAVE)


NEW DELHI

JULY 27, 2011.





                  Page 6 of 6

"The plea of alibi involves a question of fact and both the courts below have concurrently found that fact against the appellant. This Court, therefore, cannot, on an appeal by special leave, go behind that concurrent finding of fact." Political rivalry at times degenerates into personal vendetta where principles and policies take a back seat and personal ambition and longing for power drive men to - commit the foulest of deeds to avenge defeat and to settle scores.

                                                                        REPORTABLE



                         IN THE SUPREME COURT OF INDIA


                        CRIMINAL APPELLATE JURISDICITION


                        CRIMINAL APPEAL NO. 1321 OF 2006



Gosu Jairami Reddy & Anr.                                     ...Appellants
      Versus
State of A.P.                                                 ...Respondents


                      (With Crl. Appeal No.1327 of 2006)


Gosu Ramachandra Reddy & Ors.                        ...Appellants
      Versus
State of A.P.                                                 ...Respondents


                                  J U D G M E N T

T.S. THAKUR, J.

1.      Political   rivalry   at   times   degenerates   into   personal


vendetta   where   principles   and   policies   take   a   back   seat   and


personal ambition and longing for power drive men to -


commit the foulest of deeds to avenge defeat and to settle scores.


These   appeals   by   special   leave   present   a   somewhat   similar   picture


and   assail   the   judgment   and   orders   of   conviction   and   sentence


passed by the Additional Sessions Judge, Anantapur of Gooty and the


High Court of Andhra Pradesh in appeal. The prosecution case may be


summarised as under:


2.      Gosu   Ramchandra   Reddy   (A1)   and   his   two   brothers   Gosu


Jayarami Reddy (A2) & Gosu Jayaranga Reddy (A3) together with Gosu


Rameshwar   Reddy   (A4)   and   Gosu   Rajagopal   Reddy   (A5)   sons   of   Gosu


Ramchandra   Reddy   (A1)   all   residents   of   village   Aluru   of   Anantapur


District in the State of A.P. were political activists owing their


allegiance to the Telugu Desam Party.  The opposite group active in


the   region   and   owing   allegiance   to   the   Congress   party   comprised


Shri Midde Chinna Pulla Reddy (deceased) his son Shri M. Sanjeeva


Reddy   (PW1)   and   his   two   nephews   M.   Rammohan   Reddy   (PW2)   and   M.


Veeranjaneyuly   (PW3);   all   residents   of   village   Kaveti   Samudram   in


the District of Anantpur.


-


3.       Elections to MPTC/ZPTC were held in July 2001 which saw Gosu


Jayaranga   Reddy   (A3)   contesting   for   M.P.T.C.   from   Virapuram


village, while Gosu Ramchandra Reddy (A1) sought election from the


neighbouring   Yerraguntapalli   village.   Both   of   them   were   set   up   by


Telugu Desam Party. Electoral contest took a bitter turn when the


duo   mentioned   above   sought   the   support   of   the   deceased   M.   Chinna


Pulla   Reddy   which   he   declined   for   he   claimed   to   be   a   staunch


congressman   committed   to   supporting   the   candidate   set   up   by   his


party.     It   so   happened   that   A1   and   A3   were   both   defeated   at   the


hustings.


4.       The accused did not, according to the prosecution, reconcile


to   the   defeat.   Instead   they   started   nursing   a   grudge   against   M.


Chinna   Pulla   Reddy   who   was   in   their   view   the   cause   of   their


humiliation in the electoral battle.   The animosity arising out of


the   electoral   debacle   of   the   two   accused   persons   provided   the


motive   for   a   murderous   assault   and   resultant   death   of   M.   Chinna


Pulla   Reddy   on   31st  July,   2001   at   village   Sajjaladinne   where   the


deceased -


had established a slab polishing factory in the name and style of


Reddy & Reddy Slab Polishing factory.


5.       The   prosecution   case   is   that   the   deceased   Shri   M.   Chinna


Pulla   Reddy   reached   his   house   at   Tadipatri   from   his   village   in   a


Tata   Sumo   Jeep   alongwith   his   son   M.   Sanjeeva   Reddy   (PW1)   and   his


nephews   M.   Rammohan   Reddy   (PW2)   and   M.   Veeranjaneyuly   (PW3).   One


Hanumanatha   Reddy   and   Mabu   also   accompanied   them.   From   there   the


deceased and his companions came to the Slab Polishing Factory at


Sajjaladinne   at   about   5.00   p.m.     Hardly   had   Ganur   Shankar   the


driver of the jeep parked the jeep at the factory office when A1 to


A5 entered the factory from the main gate, with A2 carrying bombs


and A1 & A3 to A5 carrying hunting sickles. Coming closer, accused


Gosu Jayarami Reddy (A2) hurled two bombs towards the Jeep out of


which   one   fell   and   exploded   on   the   bonnet   of   the   Jeep   while   the


other   fell   on   its   left   side   door   and   exploded   thereby   partially


damaging   the   Jeep.     The   inmates   of   the   Jeep   ran   for   safety   in


different directions. The deceased also got down from the jeep and


started running towards -


the office room of the factory, when A-1 Gosu Ramchandra Reddy and


A3 to A5 viz. Gosu Jayaranga Reddy, Gosu Rameshwar Reddy and Gosu


Rajagopal   Reddy   attacked   him   with   the   hunting   sickles   which   they


were   carrying.     The   prosecution   case   is   that   A1   Gosu   Ramchanda


Reddy   hacked   the   deceased   on   his   head,   while   A3   Gosu   Jayaranga


Reddy   assaulted   him   on   his   neck.     A4   Gosu   Rameshwar   Reddy   and   A5


Gosu   Rajagopal   Reddy   also   similarly   hacked   the   deceased   resulting


in the death of the deceased on the spot.   The entire incident is


said to have been witnessed by M. Sanjeeva Reddy (PW1) from behind


the workers room and by M. Ram Mohan Reddy (PW2) from the Pial of


the Southern door of the office room.   The incident was witnessed


even by M. Veeranjane Reddy allegedly from the side of the labour


room.


6.       A   written   complaint   about   the   occurrence   was   lodged   by   M.


Sanjeeva   Reddy   (PW1)   on   the   basis   whereof   FIR   No.85/01   was


registered   in   the   Police   Station   at   Tadipatri   at   6   p.m.   on   31st


July, 2001. The police arrived at the scene of occurrence at about


7 p.m., conducted an inquest and sent -


the   dead   body   for   post-mortem   examination   to   the   Government


hospital   at   Tadipatri.     After   completion   of   the   investigation,   a


chargesheet   was   presented   against   A1   to   A5   and   five   others   for


commission   of   offences   punishable   under   Sections   147,   148   and   302


read   with   Section   149   IPC   and   Sections   3   and   5   of   the   Explosive


Substances   Act,   before   the   Judicial   Magistrate,   Ist   Class,


Tadipatri   who     committed   the   accused   persons   to   the   Court   of


Sessions   at   Anantpur.   The   case   was   then   made   over   to   VIth


Additional   District   and   Sessions   Judge,   (Fast   Track)   Anantapur


before   whom   the   accused   persons   pleaded   not   guilty   and   claimed   a


trial.


7.       In support of its case the prosecution examined PWs 1 to 10


apart from placing reliance upon the documents marked Ex.P1 to P22


and MOs marked 1 to 20. Accused Gosu Ramchandra Reddy (A1) and Gosu


Jayaranga   Reddy   (A3)   examined   DW1   to   DW4   apart   from   placing


reliance on documents marked D1 to D12, in support of the plea of


alibi raised in defence.


-


8.       By   its   judgment   and   order   dated   15th  July,   2005,   the   Trial


Court   convicted   A1   to   A5   for   commission   of   offences   punishable


under Sections 147, 148, 302 read with Section 149 and Sections 3


and   5   of   Explosive   Substances   Act   and   sentenced   them   to   suffer


rigorous imprisonment for a period of one year for the commission


of   an   offence   under   Section   147   IPC,   two   years   under   Section   148


IPC and life imprisonment for the offence punishable under Section


302   IPC.   They   were   also   convicted   and   sentenced   to   ten   years


imprisonment for the offence punishable under Sections 3 and 5 of


the   Explosive   Substances   Act.   The   sentences   were   ordered   to   run


concurrently.   The   Trial   Court   also   directed   payment   of   fine   of


Rs.10,000/- each by the accused persons and a default sentence of


three months simple imprisonment for the offence under Section 302


IPC and a fine of Rs.1,000/- each for the offence under Sections 3


and   5   of   the   Explosive   Substances   Act   and   in   default   simple


imprisonment   for   a   period   of   one   month.   A6   to   A10   were,   however,


acquitted of the charges framed against them.


-


9.       Aggrieved   by   the   judgment   and   order   passed   by   the   Trial


Court   the   appellants   filed   Criminal   Appeal   No.1112   of   2005   before


the High Court of Andhra Pradesh at Hyderabad. The High Court after


reappraisal   of   the   entire   evidence   on   record   affirmed   the


conviction and sentence awarded to the appellants and dismissed the


appeal. The present appeals by special leave assail the correctness


of the said judgment and order.                  


10.      We have heard learned counsel for the parties who have taken


pains   to   extensively   refer   to   the   evidence   adduced   by   the


prosecution and the defence before the Trial Court in a bid to show


that the Trial Court as well as the High Court both have failed to


properly appreciate the same hence erroneously found the appellants


guilty   of   the   offences   alleged   against   them.   Before   we   advert   to


the   criticism   levelled   against   the   inferences   &   conclusions   drawn


by   the   Courts   below   we   need   to   point   out   that   an   appeal   to   this


Court   by   special   leave   under   Article   136   of   the   Constitution   of


India   is   not   an   ordinary   or   regular   appeal   against   an   order   of


conviction recorded by a -


competent Court.   In an ordinary or regular appeal, the appellate


Court can and indeed is duty bound to re-appraise the evidence and


arrive at its own conclusions.  It has the same power as the Trial


Court when it comes to marshalling of facts and appreciation of the


probative   value   of   the   evidence   brought   on   record.     The   accused


can,   therefore,   expect   and   even   demand   a   thorough   scrutiny   and


discussion   of   his   case   in   all   its   factual   and   legal   aspects   from


the appellate Court, in the same manner as would be required of a


Trial   Court.     But   once   the   appellate   Court   has   done   its   task,   no


second appeal lies against the judgment; under the Cr.P.C. whether


to   the   High   Court   or   to   this   Court.     A   revision   against   an


appellate   judgment   of   a   criminal   Court   is   maintainable   before   the


High Court but the same has its own limitations.  Suffice it to say


that   the   extra-ordinary   jurisdiction   of   this   Court   under   Article


136   of   the   Constitution   is   not   and   cannot   be   a   substitute   for   a


regular appeal where the same is not provided for by the law. The


scope   of   any   such   appeal   has,   therefore,   to   be   limited   lest   the


spirit   and   the   intent   of   the   law   that   does   not   sanction   a   second


round of appellate hearing in criminal -


cases, is defeated and a remedy that is not provided directly made


available   indirectly;   through   the   medium   of   Article   136   of   the


Constitution.       The   decisions   of   this   Court   on   the   subject   are   a


legion.     Reference   to   some   of   them   would   however   suffice.     In


Gurbaksh Singh v. State of Punjab (AIR 1955 SC 320) this Court held

that it cannot consistently with its practice convert itself into a


third   Court   of   facts.   In  D.   Macropollo   and   (Pvt.)   Ltd.  v.  D.


Macropollo and (Pvt.) Ltd. Employees' Union and Ors. (AIR 1958 SC

1012)  this   Court   declared   that   it   will   not   disturb   concurrent

findings   of   fact   save   in   most   exceptional   cases.   In  Ramaniklal


Gokaldas & Ors.  v.  State of Gujarat (AIR 1975 SC 1752)  this Court

observed that it is not a regular Court of appeal which an accused


may approach as of right in criminal cases. It is an extraordinary


jurisdiction   which   this   court   exercises   when   it   entertains   an


appeal by special leave and this jurisdiction by its very nature is


exercisable only when the Court is satisfied that it is necessary


to   interfere   in   order   to   prevent   grave   or   serious   miscarriage   of


justice.   In  Pallavan Transport Corporation Ltd.  v.  M. Jagannathan


(2001 AIR SCW -


4786)  this Court held that reassessment of evidence in proceedings

under   Article   136   is   not   permissible   even   if   another   view   is


possible. In Radha Mohan Singh alias Lal Saheb and Ors. v. State of


U.P. (AIR 2006 SC 951) this Court declared that re-appreciation of

evidence was permissible only if the Trial Court or the High Court


is   shown   to   have   committed   an   error   of   law   or   procedure   and


conclusions arrived at are perverse.   This Court further held that


while   it   does   not   interfere   with   concurrent   findings   of   fact


reached by the Trial Court or the High Court, it will interfere in


those   rare   and   exceptional   cases   where   it   finds   that   several


important   circumstances   have   not   been   taken   into   account   by   the


Trial Court and the High Court resulting in serious miscarriage of


justice or where the trial is vitiated because of some illegality


or   irregularity   of   procedure   or   is   otherwise   held   in   a   manner


violating the rules of natural justice or that the judgment under


appeal   has   resulted   in   gross   miscarriage   of   justice.   (See   also


Bhagwan Singh v. State of Rajasthan (AIR 1976 SC 985), Suresh Kumar

Jain v. Shanti Swarup Jain and Ors. (AIR 1997 SC -

2291) and Kirpal Singh v. State of Utter Pradesh (AIR 1965 SC 712).

11.      It is in the light of the above pronouncements of this Court


evident   that   an   appeal   by   special   leave   against   the   judgment   and


order   of   conviction   and   sentence   is   not   a   regular   appeal   against


the judgment of the Trial Court. The appellant cannot seek reversal


of views taken by the Courts below simply because another view was


possible   on   the   evidence   adduced   in   the   case.   In   order   that   the


appellant   may   succeed   before   this   Court,   it   must   be   demonstrated


that the view taken by the Trial Court or the appellate Court for


that matter is affected by any procedural or legal infirmity or is


perverse or has caused miscarriage of justice.


12.      It   is   now   our   task   to   determine   whether   the   order   of


conviction   and   sentence   recorded   by   the   courts   below   suffers   from


any   such   infirmity   as   is   mentioned   above   so   as   to   justify


interference   with   the   same   in   exercise   of   our   extra   ordinary


jurisdiction.   On   behalf   of   the   appellants   it   was   argued   that   the


alleged   motive   behind   the   killing   of   the   deceased   Midde   Chinna


Pulla Reddy has not been -


established.   The   Trial   Court   has   according   to   the   learned   counsel


rejected   the   plea   of   political   rivalry   being   the   driving   force


behind   the   incident   in   question.   The   High   Court   was,   argued   the


learned   counsel   for   the   appellants,   in   error   in   reversing   that


finding   and   holding   that   the   prosecution   had   established   the


existence of political rivalry as the motive for the murder of the


deceased.     Absence   of   a   strong   motive   was   a   circumstance,   that


according   to   the   learned   counsel   rendered   the   entire   prosecution


story suspect, the benefit whereof ought to go to the appellants.


13.      It is settled by a series of decisions of this Court that in


cases based on eye witness account of the incident proof or absence


of a motive is not of any significant consequence. If a motive is


proved   it   may   supports   the   prosecution   version.   But   existence   or


otherwise   of   a   motive   plays   a   significant   role   in   cases   based   on


circumstantial   evidence.   The   prosecution   has   in   the   instant   case


examined as many as five eye witnesses in support of its case that


the deceased was done to death by the appellants.   The depositions


of Shri M. Sanjeeva Reddy (PW1), Shri M. -


Rammohan   Reddy   (PW2),   Shri   Veeranjaneyu   (PW3),   Shri   D.


Dastnagiramma (PW4) and Shri Eswaraiah (PW5) have been relied upon


by   the   prosecution   to   substantiate   the   charge   framed   against   the


appellants.   If   the   depositions   giving   the   eye   witness   account   of


the incident that led to the death of late Shri Midde Chinna Reddy


are indeed reliable as the same have been found to be, by the Trial


Court and the first appellate Court, absence of a motive would make


little difference.


14.      Having   said   that   we   need   to   examine   the   reasoning   of   the


Trial   Court   while   it   dealt   with   the   question   of   motive   -   which


finding of the trial Court has been reversed by the High Court. The


trial court has on the question of motive observed:


               
          "In   the   present   case   3   eye   witnesses   are   there   and
          their evidence is supported by PW.4.   Even though both
          parties   accused   group   and   the   deceased   group   belonged
          to   different   political   parties,   but   actually   there   is
          no   evidence   that   there   are   pending   civil   litigations
          between   them.     In   the   MPTC   Elections   the   accused   No.1
          and 3 contested for the post of MPTC on behalf of the
          Telugu   Desam   Party   and   the   deceased   supported   the
          congress   back   ground   candidates   and   who   succeeded   and
          the   accused   persons   were   defeated   in   the   elections.
          Except that there is no material to state that -
          the   deceased   and   his   sons   got   enmity   towards   the
          accused persons"  


15.       The   above   finding   was   manifestly   erroneous.   Not   only   was


there   evidence   on   record   in   the   form   of   depositions   of   Shri   M.


Sanjeeva   Reddy   PW1   and   Shri   M.   Rammohan   Reddy   PW2,   the   alleged


political rivalry between the two sides was mentioned even in the


first   information   report   lodged   by   PW1   in   writing.   The   complaint


and   so   also   the   FIR   registered   on   the   basis   of   the   same   clearly


referred   to   the   reason   why   the   deceased   had   been   killed.     It


attributed the reason for the ghastly murder of the deceased to his


refusal   to   support   the   candidature   of   A1   and   A3   in   the   ZPTC/MPTC


elections.     It   was   not,   therefore,   a   case   where   motive   was


introduced as an improvement in the prosecution story.   It was on


the   contrary   a   case   where   right   from   the   stage   of   lodging   of   the


FIR   till   recording   of   depositions   in   the   court   political   rivalry


was said to be the motive for the killing of the deceased.  Shri M.


Sanjeeva Reddy PW1, who was also the first informant had stood by


his version regarding the political rivalry being the cause for the


murder of his father Chinna Pulla Reddy.  So had M. Rammohan Reddy


PW 2 -


who   had   also   in   no   uncertain   terms   said   that   the   rivalry   between


the two groups was the reason why the deceased was done to death.


The High Court appreciated the above evidence and rightly observed:


         "From   the   above   evidence,   it   is   clear   that   there   was
         political   rivalry   between   the   accused   party   and   the
         deceased party and the accused bore grudge against the
         deceased   on   account   of   the   refusal   of   the   deceased   to
         support   them   in   the   elections   and   on   account   of   the
         defeat of A-1 and A-3 in the ZPTC elections."


16.      There is, in our opinion, no reason much less a compelling


one for us to take a view different from the one taken by the High


Court.   The   prosecution   case   that   these   accused   appellants   had   a


motive for the commission of the offence alleged against them thus


stood satisfactorily proved.


17.      It was next contended that the incident in question having


occurred   at   5   p.m.   the   first   information   report   lodged   at   6   p.m.


was   delayed   for   which   delay,   the   prosecution   had   offered   no


explanation.   It   was   further   contended   that   the   jurisdictional


Magistrate had received a copy of the FIR only at 1.05 a.m. Keeping


in view the -


distance between the place of occurrence and the Police Station as


also the distance between the Police Station and the jurisdictional


Magistrate's   court   the   delay   in   lodging   of   the   report   and   in


sending   a   copy   thereof   to   the   Magistrate   were   significant   which


would   in   the   absence   of   any   valid   explanation   render   the   entire


prosecution case, suspect.


18.      There is in our view no merit even in this submission of the


learned counsel. A report regarding the commission of a cognizable


offence, lodged within an hour of the incident cannot be said to be


so   inordinately   delayed   as   to   give   rise   to   a   suspicion   that   the


delay - if at all the time lag can be described to be constituting


delay,   was   caused   because   the   complainant,   resorted   to


deliberations   and   consultations   with   a   view   to   presenting   a


distorted,   inaccurate   or   exaggerated   version   of   the   actual


incident. No suggestion was made to PW1 the first informant that he


delayed the lodging of the report because he held any consultation


in order to present a false or distorted picture of the incident. A


promptly lodged report may also at times be inaccurate or distorted


just as a delayed report may -


despite   the   delay   remain   a   faithful   version   of   what   had   actually


happened.     It   is   the   totality   of   the   circumstances   that   would


determine whether the delay long or short has in any way affected


the   truthfulness   of   the   report   lodged   in   a   given   case.   The


credibility of a report cannot be judged only by reference to the


days,   hours   or   minutes   it   has   taken   to   reach   the   police   station


concerned.     Viewed   thus   the   credibility   of   the   report   was   not


affected on account of the so called delay of one hour in lodging


of   the   complaint.   So   also,   the   receipt   of   the   report   by   the


magistrate   at   1.05   a.m.   was   not   so   inordinately   delayed   as   to


render   suspect   the   entire   prosecution   case   especially   when   no


question regarding the cause of delay was put to the Investigating


Officer.   If delay in the despatch of the First Information Report


to   the   Magistrate   was   material   the   attention   of   the   Investigating


Officer   ought   to   have   been   drawn   to   that   aspect   to   give   him   an


opportunity to offer an explanation for the same. How far was the


explanation   acceptable   would   then   be   a   matter   for   the   court   to


consider.


-


19.      It   was   then   contended   by   the   learned   counsel   for   the


appellants   that   there   were   certain   erasures   and   interpolations   in


the   first   information   report   which   according   to   them   suggested   a


manipulation and raised a doubt about the registering of the first


information   report.     A   similar   contention,   it   appears   was   raised


even before the Trial Court, who repelled the same holding that the


only   discrepancy   in   the   first   information   report   was   a   correction


of   FIR   No.84   to   First   Information   Report   No.85.     The   Trial   Court


further held that the said correction was wholly immaterial and did


not affect the prosecution version. Before us, an attempt was made


by   the   learned   counsel   for   the   appellants   to   argue   that   the


correction   made   in   the   first   information   report   altered   the   FIR


number   from   86   to   85   meaning   thereby   that   the   first   information


report had been ante timed.   There is no merit in that contention


either.     The trial court has in our opinion correctly found that


the   over-writing   in   the   First   Information   Report   was   limited   to


converting   the   digit   4   to   digit   5   in   the   number   assigned   to   the


FIR.   This correction is visible to the naked eye. The contention


that the correction had the effect of converting -


FIR   No.86   into   FIR   No.85   is   not   supported   by   the   record.   As   a


matter of fact the correction simply altered the FIR number from 84


to 85. In the circumstances, unless the correction is shown to be


of   any   significance,   nothing   much   turns   on   the   same.   Learned


counsel   for   the   appellants   were   unable   to   demonstrate   that   the


correction   of   the   First   Information   Report   No.84   to   85   suggested


any   distortion   in   the   prosecution   case   or   prove   that   the   first


information   report   was   false   or   ante   timed.       It   is   also


significant   that   neither   in   the   memo   of   appeal   before   the   High


Court nor in the special leave petition filed before this Court had


the   appellants   pursued   the   challenge   or   urged   the   alleged


interpolation   in   the   First   Information   Report   as   a   ground


warranting rejection of the prosecution case.


20.      That   brings   us   to   the   substance   of   the   prosecution   case


which   essentially   comprises   the   depositions   of   M.   Sanjeeva   Reddy


PW1,   M.   Rammohan   Reddy,   PW2   and   M.   Veeranjaneya   Reddy   PW   3.


According to M. Sanjeeva Reddy PW 1, late Shri Chinna Pulla Reddy,


Ramamohan Reddy, Hanumantha Reddy, Veeranjaneya Reddy, Mabu -


and driver Shankar started from Kavetimasumdram in a Tata Sumo Jeep


driven by Shankar on 31st  of July, 2001 and reached Tadipatri at 4


p.m.     From   the   house   of   the   deceased   at   Tadipatri   the   aforesaid


persons   including   the   deceased   travelled   to   Sanjjaladinne   village


and reached the slab polishing factory by 5 p.m.  The driver of the


vehicle   drove   through   the   gate   of   the   factory   premises   and   then


reversed the same for parking the jeep facing the gate.  It was at


this   stage   that   A1   to   A5   came   running   through   the   gate   into   the


factory.     A2   was   armed   with   bombs   while   the   other   accused   were


armed with hunting sickles.  A2 hurled two bombs, one of which fell


on   the   bonnet   of   the   Jeep   and   exploded   while   the   other   bomb


exploded   on  the   left  side   door  of   the  vehicle.     All   of  them   were


terrified   by   the   sudden   attack   and   started   running   away   for


shelter.  The witness ran towards labour room of the factory on the


west side and stood behind the workers room from where he witnessed


the occurrence.   He saw that when the deceased was running to the


office   room   of   the   factory   Gosu   Ramachandra   Reddy   A1   hacked   him


with a hunting sickle on his head. Similarly Gosu Rajagopal Reddy


A3 also -


hacked the deceased on the neck.  Because of the blows sustained by


the   deceased  he   fell  down   at  a   distance  of   3  ft.   from  the   office


room.   A3 instigated the others to kill the deceased whereupon A4


and   A5   also   hacked   the   deceased.     The   witness   was   stunned   out   of


fear   and   remained   frozen   at   the   place   from   where   he   watched   the


occurrence,   while   the   accused   left   the   place   from   the   same   gate


carrying their hunting sickles stained with blood.


21.      The witness goes on to state that PW 3 M. Veeranjaneya Reddy


also came to the spot after the occurrence and saw the dead body of


the deceased.  Mabu and Ramamohan Reddy were sent by the witness to


the Village to inform his mother and brother.   The witness himself


went to the Police Station and lodged a report at Tadipatri Police


Station,   Ex.P1.     The   police   arrived   at   the   spot   and   conducted   an


inquest between 7 p.m. to 10 p.m. with the help of electric lights


and   two   petromax   lamps.     At   the   inquest   the   watchman   told   the


witness   that  he   had  seen   A6  to   A10  outside   the  factory   gate.    It


was on the basis of the said statement that the names of A6 to A10


were also -


included as persons responsible for the commission of the offence.


Despite   extensive   cross   examination   nothing   material   has   been


extracted   from   the   witnesses   which   could   possibly   discredit   his


testimony   nor   was   any   specific   contention   based   on   the   said


statement made in the courts below or urged before us.


22.      To the same effect are the depositions of PW 2 and PW3 who


too   have   fully   supported   the   prosecution   case   and   the   narrative


given by PW1.  The version of these witnesses who according to the


prosecution were eye witnesses to the occurrence has been accepted


as   truthful   by   the   trial   court   as   also   the   High   Court   in   appeal.


In the absence of any material contradiction in the version given


by   these   witnesses   and   in   the   absence   of   any   other   cogent   reason


rendering the   depositions unacceptable, we see no reason why the


said version should not be accepted as truthful.


23.      Deposition   of   D.   Dastagiramma   PW4   has   also   substantially


supported the prosecution version although she was declared hostile


by the public prosecutor on account of her refusal to identify the


accused.  According to -


this   witness   she   was   staying   in   the   slab   factory   of   the   deceased


Pulla Reddy in a labour room.  Pulla Reddy had come to the factory


along   with   PW1,   PW2   and   PW3.   Hanumantha   Reddy   and   Mabu,   Driver


Shankar   was   also   with   him   in   the   white   jeep.   They   reached   the


factory at 5 p.m.   The Jeep was reversed by the driver and parked


facing   towards   the   gate,   when   five   persons   came   running   from   the


gate.   One   person   was   having   bombs   while   the   remaining   were   armed


with   hunting   sickles.   Both   the   bombs   thrown   at   the   jeep   exploded


whereafter PW 1 to PW 3 ran away.  PW 1 had run towards the Labour


room while the five assailants surrounded the deceased China Pulla


Reddy.  At this stage the witness ran away due to fear to the back


side of the factory and left for Ramapuram her parents' village.


24.      Eswaraiah   PW5   was   also   a   labourer   who   was   working   in   the


factory of the deceased Pulla Reddy. This witness was taking care


of the poultry in the factory owned by the deceased. Since some of


the   birds   had   escaped   from   the   factory,   he   was   chasing   them   back


into the factory. At -


about 5 p.m. he heard a loud noise from the factory. He returned to


the factory within 10 minutes and found that Pulla Reddy had been


hacked   and  was   lying  dead   in  a   pool  of   blood  at   a  short   distance


from the jeep.  This witness saw PWs 1 to 3, Mabu, Hanumantha Reddy


near the dead body but did not see the assailants as they had run


away from there.


25.      It   is   evident   from   the   depositions   of   the   three   witnesses


referred   to   above   that   the   deceased   Pulla   Reddy   had   come   to   his


factory   accompanied   by   PW   1   M.   Sanjeeva   Reddy,   PW   2   M.   Rammohan


Reddy,   PW   3   M.   Veeranjaneya   Reddy   and   Shankar   the   driver   of   the


sumo   jeep   and   that   the   deceased   was   killed   inside   the   factory   by


five   persons.     The   depositions   of   PWs   4   and   5   substantially


supports   the   prosecution   case   and   proves   the   presence   of   the


deceased   Pulla   Reddy,   and   PWs   1,   2   and   3   apart   from   Shanker,   the


driver   of   the   Sumo   jeep   inside   the   compound   of   the   factory   at   5


p.m.   on   31st  July,   2001   when   the   incident   took   place.     Once   the


presence of PWs 1, 2 and 3 was established by their own depositions


which have remained unshattered -


and   the   supporting   evidence   of   PWs   4   and   5,   the   version   given   by


the said three witnesses cannot be brushed aside lightly.  


26.      Mr. Ranjit Kumar, learned Sr. counsel appearing for A1, A4


and   A5   contended   that   since   the   accused   persons   belonged   to   a


different village in the absence of any evidence to show, that they


knew   that   the   deceased   was   visiting   his   factory   it   would   be


difficult   to   believe   that   they   were   lying   in   wait   to   assault   and


kill   him.   There   is   indeed   no   evidence   to   show   that   the   accused


persons   knew   about   the   visit   of   the   deceased   to   his   factory   but


that   does   not   in   our   view,   make   any   material   difference.   What   is


important   is   that   the   stone   polishing   factory   was   owned   by   the


deceased and was not far from his house at Tadipatri.   A visit by


the   owner   of   the   factory   was   not   so   improbable   that   the   accused


could   not   expect   the   same   especially   when   those   with   a   sinister


design like a cold blooded murder, could lie in wait if necessary


to   strike   at   an   opportune   time.   The   fact   that   a   factory   owned   by


Accused No.1 was in close proximity to the factory of the deceased,


made it all the -


more easy for the assailants to carry out their nefarious design.


That   the   deceased   had   been   killed   in   the   factory,   is   not   even


questioned by the defence as indeed the same cannot be questioned


in   the   light   of   the   deposition   of   the   witnesses   examined   by   the


prosecution.   The depositions of the eye witnesses PWs 1 to 3 are


clear   and   free   from   any   embellishments   hence   completely   reliable.


It is also difficult to believe that the witnesses who are closely


related to the deceased would screen the real offenders and falsely


implicate   the   appellants   only   because   of   the   political   rivalry


between the two groups.


27.      Mr. Kumar next argued that the weapons allegedly used by the


appellants   were   said   to   be   hunting   sickles,   whereas   the   injuries


found   on   the   person   of   the   deceased   were   said   to   have   contused


margins which could not be caused by a hunting sickle.  It was also


argued   that   while   the   eye   witnesses   had   attributed   to   A3       an


injury on the neck of the deceased no such injury was reported by


the doctor in the post mortem examination. This was, according -


to   the   defence,   a   major   contradiction,   that   would   render   the


prosecution story doubtful.


28.      It   is   true   that   PW   1   has   in   his   depositions   attributed   an


injury to A 3 which according to the witness was inflicted on the


neck   of   the   deceased.     It   is   also   true   that   the   post   mortem


examination   did   not   reveal   any   injury   on   the   neck.     But   this


discrepancy cannot in the light of the evidence on record and the


fact   that   it   is   not   always   easy   for   an   eye   witness   to   a   ghastly


murder   to   register   the   precise   number   of   injuries   that   were


inflicted by the assailants and the part of the body on which the


same were inflicted.   A murderous assault is often a heart-rending


spectacle   in   which   even   a   witness   wholly   unconnected   to   the


assailant or the victim may also get a feeling of revulsion at the


gory   sight   involving   merciless   killing   of   a   human   being   in   cold


blood.     To   expect   from   a   witness   who   has   gone   through   such   a


nightmarish   experience,   meticulous   narration   of   who   hit   whom   at


what   precise   part   of   the   body   causing   what   kind   of   injury   and


leading to what kind of fractures or flow of how much blood, is to


expect too much.  Courts need to be -


realistic in their expectation from witnesses and go by what would


be   reasonable   based   on   ordinary   human   conduct   with   ordinary   human


frailties of memory and power to register events and their details.


A witness who is terrorised by the brutality of the attack cannot


be   disbelieved   only   because   in   his   description   of   who   hit   the


deceased   on   what   part   of   the   body   there   is   some   mix   up   or


confusion.     It   is   the   totality   of   the   evidence   on   record   and   its


credibility that would eventually determine whether the prosecution


has proved the charge against the accused.     Having said that let


us   see   the   nature   of   the   injuries   that   were   noticed   by   Dr.


Satyanarayana   Reddy   PW   6,   who   conducted   the   post   mortem   on   the


deceased   and   examine   whether   the   discrepancy   pointed   out   by   the


defence   makes   any   real   dent   in   the   prosecution   case.   The   witness


has described the injuries as under:


         "EXTERNAL INJURIES
         1.                   Incised   injury   over   left   side   of   head
         Fronto parietal area 15 cms x 2 cms x bone deep. Bones
         fractured.     Brain   matter   seen   out   side   through   the
         injuries.  Margins contused.
         2.                   Incised injury over the occipital area of
         head   on   right   side   8   cms   x   2   cms.   bone   deep,   margins
         contused.
         -
         3.                   Incised   injury   over   left   side   of   face   6
         cms. x 2 cms. muscle deep. Margins contused.
         4.                   Incised   injury   over   the   lower   Jaw
         extending on both side of face 16 cms. x 3 cms. x bone
         deep, margins contused, mandible fractured.
         5.                   Incised   injury   over   lower   lip   on   left
         side   7 cm x 2 cm. muscle deep, margins contused.
         6.                   Incised injury over right clavicle 6 cm x
         2   cm   bone   deep,   margins   contused,   right   clavicle
         fractrured.
         7.                   Incised injury over left shoulder 6 cm x
         2 cm muscle deep, margins contused.
         8.                   Incised   injury   over   left   side   of   chest
         below   clavicle   15   cm   x   2   cm   cavity   deep,   margins
         contused.   Lung   tissue   protruding   over   through   the
         injury.
         9.                   Incised injury over the palm of left hand
         near wrist 2 cm x 1 cm tissue deep, margins contused.
         10.         Incised   injury   over   the   palm   of   left   hand   near
         little   finger   2   cm   x   1   cm   tissue   deep,   margins
         contused.
         11.         Incised   injury   over   the   dorsal   aspect   of   left
         forearm   upper   1/3   5cm   x   2   cm   muscle   deep,   margins
         contused.
         12.         Incised   injury   over   the   back   of   left   scapular
         area 4 cm x 2 cm muscle deep, margins contused.
                             Deep   dissection   and   internal   examination:
         Skull: fracture of left frontal and left parietal bone
         present.     Fracture   of   occipital   bone   right   side
         fractured.     Brain   underlying   the   fractured   bones
         extensively injured.   Intracranial haemorrhage present.


          Hyoid normal fracture of mandible present.  Fracture of
          right   clavicle   present.     Thorax   on   left   side   fracture
          of   ribs   from   1   to   3   present.     Lung   tissue   protruding
          out through the injury.  Left lung extensively injured.
          Extravasations   of   blood   about   800   cc   present   in   left
          thoracic   cavity.     Heart   chambers   empty.     Right   lungs
          normal and pale.   Stomach contain digested food, Liver
          normal   and   pale.               Kidneys   normal   and   pale.
          Extravasations   of   blood   surrounding   all   external
          injuries.     The   injuries   are   ante   mortem   in   nature.
          Rectum empty. Bladder empty.
                    Opinion : The deceased would appear to have died
          of shock and haemorrhage due to  multiple injuries, -
          especially injuries to vital organs.   Brain: caused by
          injuries   No.1  and   2  and   injury  to   left  lung   caused  by
          the injury No.8 and died 15 to 18 hours prior to post
          mortem examination.  Injuries would have been caused by
          sharp   weapons   like   sickles.     The   P.M.   certificate   is
          Ex.P.3.     Injuries   1   to   12   are   ante   mortem   in   nature.
          The   above   injuries   sufficient   to   cause   to   death   in
          ordinary course of nature."
                       


29.      Two aspects are clear from the above.  First is that injury


no.6   (supra)   was   found   over   the   right   clavicle.     The   injury   was


bone deep and the clavicle fractured. A witness who has a momentary


view   of   the   incident   which   is   over   within   a   few   minutes   may   not


have his testimony rejected only because instead of describing the


injury to the clavicle he described the same to be an injury to the


neck.   It is not a case where the witness attributes an injury to


the   assailants   on   a   vital   part   like   the   head   but   no   such   actual


injury   is   found   in   that   region   of   the   body.   Instead   an   injury   is


found   say   on   the   leg   or   any   other   portion   of   the   body.     It   is   a


case where the witness describes the infliction of the injury in a


region   which   may   not   be   accurate   from   the   point   of   view   of   human


anatomy but which is capable of being -


understood in a layman's language to be an injury in an area that


is proximate.


30.      The   other   aspect   is   that   the   deposition   of   the   doctor


establishes the fact that the injuries noticed on the dead body of


the   deceased   had   been   inflicted   by   sharp   cutting   instrument   like


sickles.     It   is   further   stated   by   the   doctor   that   in   all


probabiliting the deceased might have died on receipt of the first


injury   itself.     There   is   nothing   in   the   examination   of   the   eye-


witnesses from which the court may infer that the injuries found in


the   post   mortem   examination   of   the   deceased   could   not   have   been


caused by sharp edged sickles that the accused were carrying with


them and are said to have used in the course of the incident. The


argument that there is a material contradiction between the ocular


evidence on the one hand and the medical evidence on the other must


therefore fail and is hereby rejected.            


31.      It was then contended on behalf of the appellants that the


prosecution   had   dropped   Shankar   the   driver   of   the   Sumo   Jeep   and


Hanumantha Reddy who according to the -


defence witnesses could have given true account of incident if at


all   they   were   accompanying   the   deceased   on   the   date   of   the


occurrence.   It   was   argued   by   Mr.   Sushil   Kumar,   learned   senior


counsel for the appellants that the non-examination of Shankar, the


driver   of   the   Jeep   assumes   importance   because   according   to   the


prosecution   version   the   driver   had   after   entering   the   factory


premises   reversed   the   Jeep   and   parked   it   facing   the   gate.     This


part   of   the   case   could   be   supported   only   by   the   driver   and   since


the driver had been given up at the trial the prosecution case that


the   vehicle   was   parked   facing   the   gate,   must   be   deemed   to   have


remained   unproved.   The   parking   of   the   vehicle   in   the   manner


suggested   by   the   prosecution   was   according   the   learned   counsel


material in as much as unless the prosecution introduced the theory


of the vehicle being parked by the driver facing the gate the so-


called eye-witness to the occurrence would have had no opportunity


to   see   the   accused   persons   entering   the   factory   with   bombs   and


sickles. We regret to say that there is no merit in that contention


either. It is well-settled that every witness that the prosecution


may have listed in the charge--


sheet need not be examined. It is entirely in the discretion of the


Public Prosecutor to decide as to how he proposes to establish his


case and which of the listed witnesses are essential for unfolding


the prosecution story. Simply because more than one witnesses have


been   cited   to   establish   the   very   same   fact   is   no   reason   why   the


prosecution   must   examine   all   of   them.   The   prosecution   in   the


present case examined three eye-witnesses to prove the incident in


question. There was no particular fact that could be proved only by


the   deposition   of   the   driver   and   not   by   other   witnesses.     That


Shanker   was   the   driver   of   the   vehicle   at   the   relevant   time,   and


that   he   reversed   the   vehicle   and   parked   it   facing   the   gate,   were


facts regarding which each one of the occupants of the vehicle was


a   competent   witness.     PWs.   1,   2   and   3   have   in   their   depositions


testified   that   the   vehicle   was   parked   facing   the   gate   by   Shankar


driver of the vehicle after reversing the same.   So also the non-


examination of Hanumantha Reddy does not, in our opinion, make any


dent in the prosecution case or render the version given by three


eye-witnesses   who   have   supported   the   prosecution   version   unworthy


of -


credit.     As   a   matter   of   fact   once   the   deposition   of   the   eye-


witnesses examined at the trial is accepted as trustworthy the non-


examination of other witnesses would become inconsequential.   This


Court in  Nirpal Singh  v.  State of Haryana  (1977) 2 SCC 131 stated


the principles in the following words:


            "The   real   question   for   determination   is   not   as   to
         what   is   the   effect   of   non-examination   of   certain
         witnesses   as   the   question   whether   the   witnesses
         examined in Court on sworn testimony should be believed
         or not.  Once the witnesses examined by the prosecution
         are   believed   by   the   Court   and   the   Court   comes   to   the
         conclusion   that   their   evidence   is   trust-worthy,   the
         non-examination of other witnesses will not affect the
         credibility   of   these   witnesses.     It   is   not   necessary
         for   the   prosecution   to   multiply   witnesses   after
         witnesses on the same point.  In the instant case, once
         the evidence of the eye witnesses is believed, there is
         an end of the matter."    


32.      To the same effect are the decisions of this Court in State


of   U.P.  v.  Hakim   Singh   and   Ors.  (1980)   3   SCC   55,  Nandu   Rastogi

alias Nandji Rastogi and Anr. v. State of Bihar (2002) 8 SCC 9, Hem

Raj & Ors. v. State of Haryana (AIR 2005 SC 2010), State of M.P. v.

Dharkole @ Govind Singh and Ors.  (AIR 2005 SC 44) and  Raj Narain

Singh v. State of U.P. & Ors. (2009) 10 SCC 362.

-


33.      It was argued on behalf of the appellants that the failure


of the Investigating Officer to seize the Jeep must give rise to an


adverse inference and discredit the entire prosecution story.  That


submission   needs   notice   only   to   be   rejected.   The   vehicle   in


question   was   not   used   for   the   commission   of   the   offence.   It   was,


therefore,   not   necessary   to   seize   the   vehicle.     All   that   the


prosecution was required to establish was that the Jeep was indeed


damaged on account of throwing of bombs one of which had exploded


on the bonnet of the vehicle and the other on the left side of its


door.  The Investigating Officer had taken care to have the damaged


portions   of   the   vehicle,   cut,   seized   and   sent   to   the   Forensic


Science   Laboratory   for   opinion.     The   report   from   the   FSL   marked


Ex.P20   supports   the   prosecution   case   and   proves   that   explosive


mixture used in manmade bombs was found in the same.  The relevant


part of the report is as under:



          "The above items are analysed and Potassium, Chlorate,
          Chloride, Arsenic, Sulphide, Sulphate are found in both
          of them.
          -
                   The above radicals are the resultant components
          and   residues   of   explosive   Potassium   Chlorate,   Arsenic
          Sulphide   and   Sulphur   after   explosion.     This   explosive
          mixture is used in countrymade bombs of throw type."
                                                         
34.      In the light of the above the non-seizure of the Jeep made


no difference to the veracity of the prosecution case.


35.      Time   now   to   examine   the   plea   of   alibi   set   up   by   accused


Nos.1   and   3.   In   support   of   their   plea   the   accused   have   examined


four witnesses viz. Thirupalu DW1, Radha Kumari, DW2 and Prem Nagi


Reddy DW 3 and Shri Jageeshwara Reddy D.W.4 as witnesses.  Based on


the depositions of the said witnesses the defence has attempted to


prove that A1 and A3 were at Anantpur from 11 a.m. to 5 p.m. on the


date   of   the   incident,   and   were   not   therefore   responsible   for   the


murder   of   deceased   Pulla   Chinna   Reddy   committed   at   5   p.m.   on   31st


July, 2001.     The Trial Court has carefully examined the evidence


adduced   by   defence   but   rejected   the   plea   that   accused   A1   and   A3


were at Anantpur at the time of the incident.   The High Court has


affirmed that finding upon a reappraisal of the evidence on record.


What we have to examine is whether  the -


concurrent finding on a question which is a pure question of fact


namely   whether   accused   A1   and   A3   were   at   Anantpur   at   the   time   of


incident leading to the murder of deceased Pulla Chinna Reddy took


place   in   his   stone   polishing   factory   at   Village   Sajjaladinne


warrants   any   interference.     We   may   at   the   threshold   say   that   a


finding of fact concurrently recorded on the question of alibi is


not   disturbed   by   this   Court   in   an   appeal   by   special   leave.     The


legal   position   in   this   regard   is   settled   by   the   decision   of   this


Court in  Thakur Prasad  v.  The State of Madhya Pradesh  AIR 1954 SC


30 Vol. 41



                   "The   plea   of   alibi   involves   a   question   of   fact
          and both the courts below have concurrently found that
          fact   against   the   appellant.     This   Court,   therefore,
          cannot,   on   an   appeal   by   special   leave,   go   behind   that
          concurrent finding of fact."


36.      That apart the plea of alibi has in our opinion been rightly


rejected by the courts below even on an appraisal of the evidence


on   record.     We   may   in   this   regard   briefly   refer   to   the   defence


evidence   adduced   in   support   of   the   plea.   Thirapalu,   DW1   an


Agriculturist from Tadipatri Mandal, -


deposed   that   3=   acres   of   land   owned   by   him   was   compulsorily


acquired   by   the   Government   for   a   public   purpose.   No   compensation


for   the   acquisition   was   however   paid   to   him.   It   was   in   that


connection that the witness had approached A1 for help before the


RDO   at   Anantpur.     According   to   the   witness   A1   and   A3   apart   from


Krishna Reddy, Gopal Reddy and one Ranga Reddy reached Anantpur and


went   to   the   house   of   Paritala   Ravindra   to   attend   a   meeting


organized   at   his   residence.     After   the   meeting,   they   went   to   a


hotel and then to the R&B Bungalow at Anantpur to meet the Hon'ble


Minister   Sri   Nimmala   Kristappa.     After   A1   had   spoken   to   the


Minister   for   a   few   minutes   they   went   to   the   office   of   RDO   where


they met some persons including Radhakumari, DW2 who had come there


in connection with the grant of a fair price shop licence. Accused


No.1 entered the RDO office and talked to one Allabakash, the clerk


in the said office, who dealt with payment of compensation and from


there   they   went   to   Panchayatraj   office   and   then   to   the   office   of


Superintendent of Police when Jagadeeswara Reddy, DW4 informed them


about the murder of Pulla China Reddy.  According to the -


witness,   the   police   detained   A3   in   the   SP   office   itself.


Thereafter   the   witness   returned   to   his   village.     There   are   in


deposition   of   this   witness   certain   striking   features   that   need   to


be   noticed.     The   witness   had   neither   any   notice   nor   any   other


record suggesting acquisition of land owned by him which was said


to be the reason for his alleged visit to Anantpur.   Secondly, A1


and A3 had according to the witness gone to the office of the RDO


and   talked   to   one   Allabaksh   posted   as   a   clerk   there.     No


application to the RDO or any other authority for that matter was


made   either   by   the   witness   or   by   the   accused   on   his   behalf.


Surprisingly the witness does not even talk to Allabaksh the clerk


although it was his case in connection with which the accused had


accompanied him to that office.   So also there was no evidence to


corroborate   the   version   given   by   the   witness   that   there   was   any


meeting   at   the   house   of   Partitala   Ravindra,   nor   any   evidence   to


show that any Minister had visited Anantpur on that day.


37.      Radhakumari   DW2   in   her   deposition   stated   that   she   had


studied up to 10th standard and had made an -


application   for   the   grant   of   a   fair   price   shop   licence.     On   the


date   of   the   incident   she   is   said   to   have   come   to   Anantpur   in


connection with an interview for the grant of the licence and met


A1 in the RDO office along with DW1 Thirapalu. The witness further


claimed that she was selected for the grant of licence in pursuance


of the interview held on 31st July, 2001.


38.      In her cross examination the witness admitted that she did


not   receive   any   appointment   letter   for   the   fair   price   shop


dealership   at   Sajjaladinne.     She   denied   the   suggestion   that   no


interview   was   fixed   for   31st  July,   2001   before   the   RDO   Anantpur.


The   witness   admitted   that   the   dealership   was   cancelled   but   denied


that   the   cancellation   was   because   of   malpractices   alleged   against


her.     What   is   significant   is   that   the   witness   did   not   have   any


supporting material like a copy of the application for the grant of


fair   price shop licence or a copy of the interview call inviting


her   for   interview   on   31st  July,   2001   or   a   copy   of   the   letter


informing her that she was selected and appointed pursuant to the


said interview. In the absence of any -


evidence   to   corroborate   the   version   of   the   witness   that   she   was


indeed   at   Anantpur   on   31st  July,   2001,   the   courts   below   were


justified in rejecting the same.


39.      Prem   Nagi   Reddy,   DW3   also   claims   to   be   at   Anantpur   on   31st


July,   2001.   He   was   there   in   connection   with   a   Review   meeting


allegedly fixed by the High Command of TDP.   The meeting was held


in   the   House   of   Paritala   Ravindra   at   Anantpur.   A1   and   A3   and   few


others accompanied them to SP office at about 5 pm.


40.      In   cross-examination   the   witness   admitted   that   he   was   a


prominent TDP leader and had contested, though unsuccessfully, the


assembly elections against Shri J.C. Diwakar Reddy thrice. That the


deceased Chinna Pulla Reddy was a close associate of Diwakar Reddy


and   that   Pulla   Reddy   was   a   senior   congress   party   leader   in


Tadipatri Mandal was also admitted by this witness. That A1 and A3


had contested MPTC elections as TDP candidates and got defeated at


the hands of the congress party candidate was also admitted just as


he   admitted   that   there   was   no   record   to   prove   that   a   TDP   review


meeting on 31st July, 2001 was -


held   at   Anantpur.   The   witness   also   admitted   having   been   convicted


in crime No. 17 of 1999 under Section 324 r/w Section 140 IPC and


having been sentenced to undergo rigorous imprisonment for one year


and   a   fine   but   acquitted   by   the   Appellate   Court.   He   expressed


ignorance about his being an accused in crime no.58 of 1988 under


Section 307 r/w 149 IPC, Sections 3 and 5 of E.S. Act and Section


25(1)(b)(a) of Arms Act of Yadiki P.S. He admitted that he was an


accused   person   in   crime   No.59   of   1992   under   Sections   3   and   5   of


E.S. Act registered in police Station Tadipatri, Crime No.1 of 1993


under Section 7(1) (a) of Crl. Law Amendment of Act, Crime No.127


of 1994 under Section 136 of R.P. Act and Crime No.4 of 1996 under


Section 307 r/w Sections 149 IPC and 3 & 5 of E.S. Act registered


in town Police Station Tadipatri.


41.      The courts below have rejected the testimony of this witness


also and in our opinion rightly so.  The close affiliation of this


witness   to   the   party   to   which   they   belong   and   his   antecedents,


suggesting involvement in several criminal cases registered against


him, was reason enough -


for   the   courts   to   disbelieve   his   version   also   and   consequently


reject the plea of alibi raised by the accused in their defence.


42.      In the circumstances we see no reason to interfere with the


view taken by the courts below.  These appeals accordingly fail and


are hereby dismissed.  




                                                        ...................................J.
                                                    (V.S. SIRPURKAR)




                                                         ................................J.
                                                   (T.S. THAKUR)
New Delhi
July 26, 2011