1
"Reportable"
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1849 OF 2008
Maloth Somaraju ... Appellant
Versus
State of A.P. ... Respondent
J U D G M E N T
V.S. SIRPURKAR, J.
1. Appellant Maloth Somaraju challenges the judgment of
the High Court whereby the High Court allowed the State
appeal challenging the acquittal by the Trial Court. He
was tried for the offence punishable under Section 302, IPC
on the allegation that on 15.05.1999 at about 2 a.m. at
night he committed the murder of his elder brother Maloth
Krishna (hereafter referred to as "deceased" for short) by
causing his death with an axe injuring his temporal region,
nose and face which ultimately resulted in his death.
The prosecution story in short conspectus
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Deceased was a worker in Singereni Collaries. He used
to go for his duty at about 12.30 p.m. at night every day.
On the fateful day, he did not go for his duty. At the
time when the incident happened, he was sleeping on his cot
along with one son. It is the prosecution case that
besides him was another cot on which his wife Heeramani
(PW-1) was sleeping along with another son. Besides these
two cots, there was another cot on which was one Haridas
(PW-9) who was the cousin of Heeramani (PW-1) was sleeping.
2. It is the case of the prosecution that at that time
suddenly the appellant came and assaulted Krishna which
incident was seen by Heeramani (PW-1) who raised cry which
attracted the neighbours who were mostly the relatives of
her husband including his parents, his brother, his sister-
in-law and cousins of the deceased. All his relatives are
Banjara by caste. The deceased was immediately carried in
an auto rickshaw to Singereni hospital where he was
declared as brought dead. On that Maloth Heeramani (PW-1)
had lodged a report before Kothagudem Police Station.
Since she was illiterate, Heeramani (PW-1) got scribed the
report by Rayala Sathyanarayana (PW-14) and submitted it to
Kothagudem police station at 6.30 in the morning. It has
come on record that the report was immediately forwarded to
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the concerned Magistrate who received it at 7.30 in the
morning. In this report Heeramani (PW-1) complained that
in the midnight she woke up her husband for answering the
call of nature. After that, she and her husband slept. As
they were talking to each other, her brother-in-law Maloth
Somaraju, the accused-appellant came from behind the house
with a sickle (Kota Kathi) and attacked her husband on his
left temporal, nose and under the nose due to which there
was heavy bleeding. She further suggested that she raised
cry and on hearing her cries, her father-in-law Balunayak
(PW-2), her mother-in-law, Maloth Bhikri (PW-3), elder
brother in law Amar Singh (PW-4), his wife Kausalya (PW-5),
her second brother in law Phool Singh (PW-6), his wife
Maloth Dwali (PW-7) came there. On seeing them, accused
Somaraju fled away. After that her husband was shifted in
the auto of Mohan Rao to Company Singereni main hospital.
However, the doctors there told that her husband was dead.
She then narrated that accused/appellant was addicted to
drinking and used to come to house and beat her in-laws and
was harassing them for which her husband had to pacify them
and about fifteen days back when the accused bit her in-
laws, her husband had beaten the accused and it was because
of this that he bore grudge against her husband and axed
her husband. The offence was registered and the
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investigating officer rushed to the spot, got executed
inquest Panchnama as also got drawn the map of the spot and
sent the body for autopsy. Autopsy was conducted by M.
Gopal Swamy (PW-16). Autopsy report is Exhibit P-19. The
autopsy was conducted at 11 a.m. in the morning. According
to the doctors, the approximate time of death was 8 to 10
hours before the autopsy. After the completion of the
investigation, the charge-sheet was filed. At the trial,
the prosecution examined as many as 20 witnesses and marked
31 documents. In his defence, the plea of accused is of
total deny. There was no defence evidence tendered by him.
The Sessions Judge acquitted the accused which acquittal
was challenged by the State by filing an appeal which
appeal was allowed convicting the accused of the offence
under Section 302, IPC and awarding sentence of life
imprisonment.
3. Shri Anand Dey, learned counsel appearing on behalf of
the appellant contended before us that the High Court had
committed an error in upsetting the verdict of acquittal
given by the trial Court. The learned counsel urged that
the Sessions Judge had taken a possible view and merely
because another view could be taken of the matter, the High
Court could not have converted the verdict of acquittal
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into that of conviction. The learned counsel strenuously
and painstakingly took us through all the evidence and
contended that Heeramani (PW-1) was the sole eye witness
and it was impossible for her to identify the accused as
admittedly she as well as the deceased were sleeping in the
courtyard and that was a new moon night and thereby there
was complete darkness. Learned counsel further argued that
there were number of suspicious circumstances in the matter
inasmuch as though her own cousin was sleeping on the third
cot, he did not support the prosecution when he was
examined as PW-8. In fact the learned counsel was at pains
to suggest that Heeramani (PW-1) had a definite motive to
falsely implicate the accused inasmuch as the sister of her
husband had married her brother and both her brother as
well as his wife had died unnatural death because of which
the relations between her family and the family of her
husband were strained. It was further argued that the
whole investigation was slipshod and casual inasmuch as the
investigating officer had not even sent the blood stained
clothes of the only eye witness for examination. He did not
even send the clothes which were blood stained. Learned
counsel pointed out from the record that though it was the
version of the witness that there were three cots in the
courtyard, when the investigating officer went there, only
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one cot was found. The investigating officer did not even
bother to seize the cot which was blood stained. That
apart, the learned counsel pointed out that there were
serious discrepancies in the matter as the scribe of the
FIR, Rayala Sathyanarayana (PW-14) had suggested that he
had written the report at about 9-9.30 a.m. According to
the learned counsel, by then, her relations and, more
particularly, Bhukya Dhalsingh (PW-13) had come and,
therefore, there was every possibility that the relatives
had persuaded her to falsely implicate the accused on
account of the strained relations. The learned counsel
also pointed out that it had come in the evidence that the
Heeramani (PW-10) was in fact sleeping inside the house and
outer door was chained from outside and in fact it was only
after the said door was opened by her father in law, who
come immediately after the assault, that she came out and,
therefore, it was impossible for her to see the accused.
In the FIR, she had never referred to any bulb and that she
had made the improvement regarding existence of a bulb/
source of light only in her cross-examination. Learned
counsel, therefore, urged that if all these suspicious
circumstances were viewed in favour of the verdict of
acquittal, the High court should not have upset the verdict
merely because some other view favouring the conviction was
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possible.
4. As against this, Shri I. Venkatanarayana, learned
senior counsel appearing on behalf of the State very
strongly supported judgment of the High court and contended
that though the house of the deceased was in the village,
it was right on the road, and therefore, there was a
possibility of the street lights being there. The learned
counsel argued that the evidence of Heeramani (PW-1) is
natural evidence as she could not have been elsewhere when
the incident occurred. Her presence, therefore, was
absolutely natural. He also pointed that her version is
confirmed as she had taken the name of the accused barely
in 3-4 hours after the incident, in her FIR. Considering
that she was an illiterate lady there was no question of
her falsely implicating the accused. The learned counsel
pointed out that her own relations from her father's side
could not have been present at 6.30 a.m. as they are the
residents of the other village. He further pointed that
the investigating officer had given the full explanation as
to why he did not seize her blood stained clothes. As
regards the cots, the explanation given by him was that it
was possible that the cots were removed for being cleaned
as admittedly there was huge amount of blood which was
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clear from the fact that even the earth became blood
stained. The learned counsel further pointed out that the
version given by her father-in-law about the door being
closed and chained from outside was obviously false as it
was not supported by any other witness and it was clear
that all the hostile witnesses who were the direct
relations of the accused had the sole intention to save the
accused. The learned counsel supported the judgment of the
High Court saying that no other view was possible on the
basis of the evidence led. He pointed out that even
assuming there was darkness, Heeramani (PW-1) could not
have committed mistake in identifying her own brother-in-
law who was barely 2-3 feet from her when the incident
occurred. He pointed out that the prosecution had proved
all the contradictions brought out in the cross-examination
by the Additional Public Prosecutor of the hostile
witnesses. As regards the discrepancy in the FIR regarding
its timing, the learned counsel pointed out that if the
copy of the FIR reached the Magistrate as early as 7.30 in
the morning and it was not expected that an illiterate lady
like Heeramani (PW-1) to have necessary intention to
falsely implicate the accused. It is on the basis of these
conflicting claims that we have to see whether the High
Court was justified in upsetting and convicting the accused
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for the offence of murder.
5. The law dealing with the judgments of acquittal is now
settled. There can be no two opinions that merely because
the acquittal is found to be wrong and another view can be
taken, the judgment of acquittal cannot be upset. The
appellate Court has more and serious responsibility while
dealing with the judgment of acquittal and unless the
acquittal is found to be perverse or not at all supportable
and where the appellate Court comes to the conclusion that
conviction is a must, the judgment of acquittal cannot be
upset. We have to examine as to whether the High Court,
while upsetting the acquittal, has taken such care and it
is quite clear from the High Court's judgment that the High
Court has certainly taken that care.
6. The High Court has wholly relied on the direct
testimony of Heeramani (PW-1) and has carefully examined
her evidence threadbare. Firstly, the High Court has
correctly found that she had a close relation with the
accused who was her real brother-in-law and she was not
expected to commit any mistake in identifying him. The
High Court has correctly observed that she would certainly
be interested in naming the culprit since she had lost her
husband. The High Court has rightly found that she was a
1
natural witness and her presence in her own household was
also absolutely natural. Her version that she woke up her
husband to attend the call of nature is the most natural
version and that has been specifically stated in the first
information report which was filed barely within 4 - 4=
hours after the incident. The High Court refuted the
defence version that she could not have identified the
accused because of the darkness on the basis of the theory
of the bulb, introduced in the cross-examination. Very
significantly, she had not spoken about her having lighted
the bulb, in her examination-in-chief; however, in her
cross-examination, when it was suggested to her that there
was no power during that night, she specifically refuted
the suggestion and then asserted that she had switched off
the bulb before going to the bed and had switched on the
same after she had awakened to attend the call of nature.
This theory of her switching on the bulb, having been
introduced in the cross-examination, becomes all the more
significant. The High Court, therefore, accepted her
version that she had put on the bulb and had not switched
it off after she and her deceased husband returned to the
bed after answering the call of nature. Therefore,
whatever doubts could have been raised because of the night
being a new moon night and the prevalence of darkness on
1
the spot, were also got dispelled by the defence by its
cross-examination. The High Court has also considered the
contention raised on behalf of the defence that the accused
could not have inflicted the injuries on the face of the
deceased and, more particularly, front part thereof, if
after answering the call of nature, both were talking to
each other, meaning thereby that the deceased was in a
sitting position. The High Court has pointed out through
the evidence of Heeramani (PW-1) that the deceased was in
the lying position and it is on that basis that the High
Court has rejected the defence theory and upheld the
evidence of Heeramani (PW-1). The High Court has also
found that there could not have been any motive on the part
of Heeramani (PW-1) to falsely implicate her husband's
brother. The defence theory was that the sister of the
deceased was married to her brother and her brother had
committed suicide and in fact Heeramani (PW-1) was holding
the accused to be responsible for the suicide. There being
no support to this theory in evidence, the High Court has
chosen to ignore the same and in our opinion, rightly. The
witness was not cross-examined in respect of the
controversy regarding the number of cots. She, in her
evidence, had claimed that there were three cots and she,
her husband and two sons were sleeping on the two cots,
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whereas the third cot was occupied by her cousin. Relying
on the sketch (Exhibit P-30) drawn by the investigating
officer as also on the photographs, it was suggested that
only one cot was found. The High Court has rejected this
theory that the sketch (Exhibit P-30) which is the sketch
drawn by the investigating officer was admissible in
evidence. The High Court has found that even if it was
held to be admissible, admittedly, the sketch was drawn by
11.30 am and, therefore, the possibility of the two other
cots, which had no signs of any blood or any other material
evidence having been found, could not be ruled out. Even
before us, Shri Anand Dey, learned counsel appearing on
behalf of the appellant very strenuously argued on the
aspect of the cot as well as the position of the deceased
and the location of the injuries on the face of the
deceased. We are quite satisfied by the reasoning given by
the High Court to reject the claim of the defence in this
behalf. Similar is the situation regarding her clothes
being stained with blood. It is an admitted position that
her clothes which were stained with blood were neither
seized by the investigating agency nor were they sent for
the chemical examination. The High Court accepted the
explanation of Sub Inspector M. Konda Reddy (PW-20) that
her clothes even otherwise could have stained with blood
1
because she had carried the deceased in the auto rickshaw
to the hospital and, therefore, the clothes were not
material. We do not see any reason to reject this
reasoning of the High Court. Shri Dey, learned counsel,
very strenuously urged that it was a doubtful circumstance
and that in the absence of the blood-stained clothes, the
version of Heeramani (PW-1) could not be believed by the
High Court and by this Court. We do not see any reason to
accept the argument by the learned counsel.
7. Heeramani (PW-1) was thoroughly cross-examined and
nothing could be brought out in her cross-examination which
would bring her testimony into dark. On the other hand,
the theory of switching on the bulb was introduced by the
defence in her cross-examination. What impresses us most
about the evidence of this witness is the fact that she
lodged the FIR barely within 4-4= hours of the incident.
She is an illiterate lady, which is clear from the thumb
mark on the FIR. It must be noted that after the incident
which took place at 2 O' clock at night, the deceased was
taken by her to the hospital. It has come in the evidence
of this witness that immediately after the incident, her
father-in-law Balunayak (PW-2), her mother-in-law Maloth
Bhikri (PW-3), Phool Singh (PW-6), her other brother-in-law
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and Dwali (PW-7), wife of Phool Singh (PW-6) had rushed to
the spot and then the deceased was carried to the hospital.
It is obvious that she alone could not have carried her
husband to the hospital and she must have been accompanied
by the relatives on her husband's side. After her husband
was declared dead by the hospital authorities, she
straightaway went to the police station and lodged the FIR
at 6.30 in the morning which is clear from the evidence of
Sub Inspector M. Konda Reddy (PW-20) as also from the FIR
which we have seen ourselves. What impresses this Court
most is the fact that a copy of the FIR was sent to the
Magistrate almost immediately and it was received by the
Magistrate at 7.30 in the morning. It was urged by Shri
Dey, learned counsel, that this FIR was scribed by Rayala
Sathyanarayana (PW-14) as per the dictation of Heeramani
(PW-1) and that the same was scribed near the police
station. The learned counsel invited our attention to the
evidence of this witness where he has claimed that he
scribed the FIR (Exhibit P-1) at about 10 a.m. It has also
come in the evidence of this witness that the distance
between the police station and the hospital is about 2 Kms.
and the distance between the police station and the spot of
occurrence is about 3 Kms. The learned counsel, therefore,
very vehemently argued that the theory that the FIR was
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lodged at 6.30 am has to fall on the ground of evidence of
this witness. The argument is absolutely incorrect. True
it is that the witness had stated that he scribed the FIR
at 10' o clock in the morning; however, Sub Inspector M.
Konda Reddy (PW-20) has claimed that he received the FIR at
6.30 a.m. on 15.5.1999, on the basis of which he took up
the investigation. Men may lie, but the circumstances and
the documents don't. The copy of the FIR is seen by us
which specifically mentions the time of recording of FIR
6.30 a.m. Further, the receipt of this FIR by the
Magistrate at 7.30 a.m. would obviously put an end to the
theory that the FIR was written by Rayala Sathyanarayana
(PW-14) at 10 O' clock in the morning. It has also come in
the evidence that the inquest on the dead body was itself
held between 7 a.m. and 9.30 a.m. in presence of Banothu
Srinivas (PW-15) and M. Gopal Swamy (PW-16). Had the FIR
been written at 10 a.m., the inquest held between 7 a.m.
and 9.30 a.m. would never have been possible. We see no
reason to disbelieve the inquest report (Exhibit P-21).
The version of Sub Inspector M. Konda Reddy (PW-20) is also
supported by the fact that he registered the offence and
mentioned in the proforma FIR the time as 6.30 a.m. We
have seen the evidence of Sub Inspector M. Konda Reddy (PW-
20) very closely on this aspect. There is no cross-
1
examination on this aspect excepting the bald suggestion
that the time of the offence and the time of the report
were manipulated to cover up the lapses on the part of the
investigating agency. We do not see any justification to
this bald suggestion, particularly in view of a clear
endorsement by the Magistrate that the FIR reached the
Magistrate at 7.30 a.m. Once this aspect of the timing is
proved, the same must clinch the issue and then it cannot
be imagined that Heeramani (PW-1) who was in the company of
her relatives on her husband's side, would falsely
implicate her own brother-in-law. The theory of false
implication is just not possible as the lady hardly had any
time to think about the false implication of her brother-
in-law. The lady is illiterate. She could not have just
created the theory that it was her brother-in-law who was
the culprit, unless that was the truth. On this backdrop,
when we read the FIR, it completely corroborates her
evidence.
8. The first information report given by this witness is
complete in all the details. She very specifically stated
that on that day her husband did not go for the duty and on
that night she and her husband and her cousin were sleeping
and she woke up her husband to attend the call of nature.
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Thereafter, she and her husband slept and while they were
talking to each other the accused came from behind and axed
the husband on his temporal, nose and under the nose. She
also spoke about her raising cries and her relatives,
namely, Balunayak (PW-2), her father-in-law, Maloth Bhikri
(PW-3), her mother-in-law, Amar Singh (PW-4), her elder
brother-in-law, his wife Kausalya (PW-5) and the other
brother-in-law Phool Singh (PW-6) and his wife Dwali (PW-7)
having come on the spot. She has also referred to the fact
that on seeing them the accused fled away. She has further
stated that after they brought the husband to the hospital
in the auto of one Mohan Rao, the doctor told them that her
husband was dead. She has also given reasons for the
accused to attack her husband. The name of scribe is also
to be found in the first information report. There were no
contradictions in her evidence. She has supported the
first information report fully.
9. It was stated by the learned defence counsel that the
scribe has given an altogether different time regarding
writing of the first information report and had stated in
the examination-in-chief as well as the cross examination
the totally different timing. Very strangely, it has come
in the cross examination itself by the defence that there
1
was rumour among the people gathered there that the accused
had killed the deceased. The first information report was
scribed by PW-14 Rayala Sathyanarayana who said in his
cross examination that it was at about 10 a.m. that he
scribed the FIR. The learned defence counsel very heavily
relied on this assertion and pointed out that though the
FIR is shown to have been registered at 6.30 a.m., in fact
it was scribed at 10 O' clock. We have seen the evidence
and we are of the firm opinion that his assertion that the
FIR was scribed at 10 O' clock cannot be correct,
particularly, in view of the registration of the offence at
6.30 a.m. in the morning and the copy of the FIR having
reached the Magistrate at 7.30 a.m. It is obvious that the
witness was falsely claiming the time of the FIR to be 10
O' Clock. Bhukya Dhalsingh (PW-13) is a resident of
another village called Jethyathanda. He is related to the
accused as well as Heeramani (PW-1). He could reach the
hospital at about 8 or 9 p.m. He asserted that Heeramani
(PW-1) and others were in the hospital and he was told by
Heeramani (PW-1) that the accused killed her husband. Of
course, this evidence would be of no consequence excepting
to the evidence of judging the behaviour of Heeramani (PW-
1) in revealing the name of the accused in his cross
examination by the defence. He was made to say that there
1
was rumour among the people gathered there that the accused
had killed the deceased. The evidence of M. Jithendar
Reddy (PW-19) completely supports the theory that the FIR
was received at 6.30 a.m. and at the same time was
registered. He has also asserted that he sent the printed
registered FIR to the Additional JFCM, Mothagudem and also
marked the copies to concerned officers. There is
absolutely no cross examination of this witness excepting a
bald suggestion that the time of the report was
manipulated. All this evidence clearly shows that
Heeramani (PW-1) was a truthful witness. She stood her
cross examination extremely well.
10. It is not the quantity but the quality of the evidence
which clinches the issue in the criminal trial of this
type. The quality of the evidence of Heeramani (PW-1) is
very high and her evidence alone is sufficient for the
conviction of the accused. We will, however, consider the
evidence of other witnesses like Balunayak (PW-2), the
father of the deceased who claimed that he was called at 12
midnight or at 1 a.m. by his deceased son that somebody had
hit him and had broken his head. He claimed to have tied
the towel to the head of the deceased and gave him water.
At that time Heeramani (PW-1) and her children were
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sleeping in the house and the door was bolted from outside.
He claimed to have opened the door and it is then that
Heeramani (PW-1) came out. He was declared hostile and the
whole statement made by him being totally contradictory was
got proved by the Public Prosecutor.
11. He has of course failed to say anything about the
bolted door from outside and about his having woken up his
daughter in law i.e. Heeramani (PW -1) in his statement
before the police. Those are clear omissions. On the
other hand, the story told by him in contradictory portions
of his statement under Section 161, Cr.P.C. suggests that
he is not a truthful witness. This is apart from the fact
that he was extremely interested in saving the life of
accused who is his son and further this part of his
evidence was not supported by another witness including his
wife Maloth Bhikri (PW-3) and the other witness, namely,
Amar Singh (PW-4). Amar Singh (PW-4) significantly enough
deposed that on the night of death of Krishna he heard the
cries of Heeramani (PW-1) at 1.30. a.m. which is the time
told by Heeramani (PW-1) also. He was awakened by the
cries of PW-1 and not by the cries of the deceased as was
claimed by Balunayak (PW-2). That is the corroboration to
the evidence of PW-1 at least in respect of the time. It
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also wipes out the story of Balunayak (PW-2) that the
deceased had shouted. Significantly enough, no other
witness has stated to have been awakened by the cries of
the deceased. In his cross examination by the defence, it
has come that Heeramani (PW-1) had told him in the hospital
that the accused was the person responsible for the
injuries. Thus, Heeramani (PW-1) had told the name of the
accused even to this witness which is a relevant piece of
evidence. The evidence of Kausalya (PW-5) and Phool Singh
(PW-6) is of no consequence excepting to the extent that he
was present along with Amar Singh (PW-4) and his father
Balunayak (PW-2) in the hospital. He tried to improve upon
his story to the effect that Heeramani (PW-1) had expressed
to him as to who was the assailant. He was also declared
hostile. Therefore, his evidence would be of no
consequence. Similar is the story of Banoth Dwali (PW-7),
Vankudoth Haridas (PW-8), Maloth Haridas (PW-9), Maloth
Badru (PW-10), Maloth Devadas (PW-11) and Banoth Khalu (PW-
12). All these witnesses were declared hostile and their
evidence is of no consequence excepting to the extent
stated earlier. We have already referred to the evidence
of Bhukya Dhalsingh (PW-13) and Rayala Sathyanarayana (PW-
14) in the earlier part of the judgment. The panch
witnesses, namely, Banothu Srinivas (PW-15) and Malothu
2
Balu (PW-16) have also turned hostile. When we compare the
evidence of all these persons who were the relatives of the
deceased, it is significant that it has nowhere come that
Heeramani's (PW-1) paternal relatives were there. In fact
she was surrounded by all the relatives of her husband and
yet she has named her husband's younger brother as the
accused in her FIR. We cannot imagine that she would be
falsely implicating the accused in presence of all the
relatives of her husband's side. Therefore, we are of the
opinion that Heeramani (PW-1) is a completely reliable
witness.
12. It was argued that in this case, the discrepancy of
the murder weapon was not properly proved and Shaik Gouse
(PW-17) was a stock witness who was a criminal. We also do
not propose to believe the evidence of discovery for the
reasons given by the Courts below; however, that would not
give any benefit to the accused whose presence on the spot
and whose act of hacking the deceased has been fully proved
by the evidence of Heeramani (PW-1). It was tried to be
argued by Shri Dey, learned defence counsel, that the
prosecution did not examine the two child witnesses. We do
not think that that could be viewed against the
prosecution. After all, they were of the tender age and to
2
put them in the witness box would have been hazardous.
Besides the prosecution had put all the witnesses in the
witness box who had rushed on hearing the shrieks by
Heeramani (PW-1) and initially all those witnesses had
allegedly seen the appellant/accused. It is a different
affair that all of them turned hostile, obviously in order
to save the appellant/accused who was their own kith and
kin. We, therefore, do not view this to be a suspicious
circumstance.
13. The learned defence counsel Shri Dey also argued that
the weapon was different. While in the FIR, Heeramani (PW-
1) had said the weapon to be Kota Kathi (hunting sickle),
the learned defence counsel pointed out that the weapon
which was seized was an axe. We do not attach much
importance to this insignificant discrepancy as it may be
that Heeramani (PW-1) could not differentiate between the
hunting sickle and the axe, both of which are fitted with a
wooden handle. We have also some suspicious circumstances
mentioned in the judgment of the trial Court. The first is
regarding existence of bulb. The trial Court held that the
time of incident was not mentioned in the FIR (Exhibit P-
1), but ignored the fact that the subject of bulb was
brought in the cross-examination by the defence. The
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second circumstance is about Heeramani (PW-1) sitting on
the cot and talking with her husband and not mentioning
that the husband was also lying on the cot. In our
opinion, this circumstance is absolutely insignificant as
it has been shown that her husband was actually lying on
the cot as per her version in the Court. Third
circumstance is the possibility of their not talking. That
is absolutely insignificant and has to be ignored. It is
nothing unnatural. Fourth circumstance is the account of
darkness. We have already explained that circumstance that
even in the light that was available, it was quite possible
for Heeramani (PW-1) to identify, which identification was
further corroborated by her immediately naming the accused.
Fifth circumstance is about the position of the deceased
which we have already explained. This circumstance could
not be availed by the trial Court. Sixth circumstance is
about existence of only one cot near the fence at some
distance which was seen in photos. We have already
explained this circumstance to be insignificant as there
was possibility of removing the cots since the panchnama
took place at about 11 O' clock in the morning. Seventh
circumstance is about blood stained clothes of Heeramani
(PW-1) not being seized to establish her presence. We have
explained this circumstance that there was very good
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explanation given by the investigating officer. Eighth
circumstance is obviously incorrect, that being the delay
in giving the report. Ninth circumstance is the cousin of
Heeramani (PW-1) not supporting the prosecution. That by
itself cannot be a suspicious circumstance, particularly,
on the backdrop of the FIR having been registered at 6.30
a.m. and the same having been received by the Magistrate at
7.30 a.m. Tenth circumstance is about the relatives
completely turning hostile and not supporting the version.
This could not be held to be a suspicious circumstance for
the simple reason that they were all interested in the
accused. Eleventh circumstance is that there was no strong
motive to kill. The motive looses all its significance in
the wake of eye-witness's account. Twelfth circumstance is
that there were possibilities of some other persons
attacking the deceased. There is absolutely no basis for
this wild imagination. We have already referred to the
thirteenth circumstance about bill book and held it to be
not a suspicious circumstance. Fourteenth circumstance is
merely inferential. Fifteenth circumstance is that
Heeramani (PW-1) did not try to obstruct the deceased to
give him blow after first blow. That circumstance depends
upon the individual reaction. We do not attach any
importance to such a circumstance. Last circumstance is
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again about the cot. We do not think that that is any
relevant circumstance. Therefore, it is clear that the
trial court got swayed away by the so-called irrelevant
suspicious circumstances which resulted into the acquittal
of the appellant. The High Court has, in its judgment,
dealt with all the other aspects in detail and has also
considered the evidence without being influenced by all
these irrelevant and imaginary suspicious circumstances.
We wholly approve of the judgment of the High Court and
confirm the same. In the result, the appeal has no merits
and it is dismissed.
..............................J.
[V.S. Sirpurkar]
..............................J.
[T.S. Thakur]
August 17, 2011;
New Delhi.
