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
