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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 84 of 2011
Gangabhavani …Appellant
Versus
Rayapati Venkat Reddy & Ors.
…Respondents
With
CRIMINAL APPEAL NO. 86 of 2011
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. Both these appeals have been preferred against the impugned
judgment and order of the High Court of Andhra Pradesh at Hyderabad
dated 13.2.2007 passed in Criminal Appeal No. 41 of 2005, reversing
the judgment and order dated 22.12.2004 passed by the Additional
Sessions Judge, Kadapa at Proddatur in Sessions Case No. 374 of 2000,
by which and whereunder the respondents were found guilty and
convicted under Section 148 of Indian Penal Code, 1860 (hereinafter
referred as `the IPC’) and awarded a sentence of 2 years each. A1 and
A2 had been convicted for the offence punishable under Section 302 IPC
and they were awarded life imprisonment with a fine of Rs.500/- and in
default, to undergo further simple imprisonment for one month. They
were also convicted under the provisions of Section 3 of the Explosive
Substances Act, 1908 (hereinafter referred to as the ‘Act 1908’) and
had been awarded the sentence of 3 years with a fine of Rs.500/- and
Rs.200/- respectively and, in default, to further undergo simple
imprisonment for one month and 15 days respectively. They had further
been convicted under Section 5 of the Act 1908, and were awarded the
punishment of three years with a fine of Rs.500/- each, in default to
suffer simple imprisonment for one month. A3 to A6 had been convicted
and sentenced to undergo life imprisonment and to pay a fine of
Rs.500/- each under Section 302 read with Section 149 IPC and, in
default of payment of fine, to undergo a further period of simple
imprisonment of one month each. However, A3 was acquitted for the
offence under Section 6 of the Act 1908. A4 and A5 were further
convicted under Sections 3 and 5 of the Act 1908 and awarded the
punishment of 3 years on each count with a fine of Rs.500/- and, in
default, to undergo a further period of imprisonment for one month.
However, all the sentences were directed to run concurrently.
2. Facts and circumstances giving rise to these appeals are that:
A. On 4.12.1999, Y. Eswara Reddy (PW.1), Y. Gangadhar Reddy (PW.2)
and Y. Gangabhavani (PW.3) were working in their agricultural fields
alongwith Y. Ramachandra Reddy (deceased) and his brother Balagangi
Reddy and others.
B. Y. Ramachandra Reddy (deceased) and his brother Balagangi Reddy
supported the Congress-I party in the elections held for the State
Assembly, while the accused persons supported the Telugu Desham Party
(TDP). There were ill feelings between two groups as there existed
chronic factionalism between the families of the deceased and accused.
In State Assembly elections, the political parties created pressure
on their supporters to get maximum votes, by any means. The accused
persons were waiting for the opportunity to kill Balagangi Reddy and
Y. Ramachandra Reddy (deceased).
C. On 4.12.1999, when PW.1 to PW.3 and some others were doing
agricultural work in their fields alongwith Y. Ramachandra Reddy
(deceased) in the morning, they heard weeping cries from the
agricultural field nearby. All of them rushed to that place and found
that Rayapati Narayana Reddy had died due to electrocution. After
sometime, they returned to their fields and attended to their work.
At 7.30 A.M., the accused Rayapati Venkata Reddy (A1), Rayapati
Ramanjul Reddy (A2), Rayapati Bheema Reddy (A3), Korrapati Rami Reddy
(A4), Korrapati Thimma Reddy (A5), Kadiyam Rami Reddy (A6), Rayapati
Thirupathi Reddy (A7), Rayapati Pedda Venkata Reddy (A8), Kadiyam Rama
Subba Reddy (A9), Rayapati Pedda Venkata Reddy (A10), Rayapati Chinna
Bali Reddy (A11), Rayapati Venkata Reddy (A12) and Chinnapureddy Bala
Chenna Reddy (A13) came to the fields where PW.1 to PW.3, namely, Y.
Eswara Reddy (PW.1), Y. Gangadhar Reddy (PW.2) and Y. Gangabhavani
Reddy (PW.3) were working armed with deadly weapons like sticks,
knives, bombs and sickles whistling war cries and hurling bombs with
the intent to kill Ramachandra Reddy and Balagangi Reddy. Balagangi
Reddy fled his fields due to fear and was chased by A7 to A13. PW.1
hid himself under cheeky bushes near his field. Y. Ramachandra Reddy
(deceased) fled on his cycle. A2 hurled a bomb which fell on the
cycle of the deceased and exploded causing the deceased to fall from
his cycle. A1 also hurled a bomb which hit the head of Y. Ramachandra
Reddy. His head was fractured and he died due to injuries. A4 and
A5 also hurled bombs towards the deceased.
D. PW.1 to PW.3 witnessed the same, however, failed to give a
report immediately to the police due to fear of their lives. Y.
Eswara Reddy (PW.1) preferred a complaint to the police, thus, Case
Crime No. 137 of 1999 of Muddanur PS was registered. S.V. Ramana, C.I.
(PW.9) began investigation, and conducted the inquest over the dead
body of the deceased in presence of R. Pedda Naidu (PW.4) and M.
Pratap Naidu (PW.7). He also seized blood stained tar, control tar,
bomb blast thread pieces and the cycle of the deceased. Further, the
Dhoti, Banian and waist thread of the deceased were also seized.
Chappals of A5 which had been lying there were recovered in the
presence of M. Pedda Aswartha Reddy (PW.5). The dead body of Y.
Ramachandra Reddy (deceased) was sent for post-mortem which was
conducted by Dr. Y. Karunasree (PW.6) wherein it was opined that he
died of shock due to a fracture of the skull bones and lacerations to
brain matter. The materials collected were sent for forensic analysis
and it was found that the bombs contained Potassium, Chlorate
Chloride, Arsenic, Sulphide and Sulphate etc.
E. After concluding the investigation, a chargesheet was filed
against A1 to A13. During the trial, the prosecution examined 14
witnesses. The accused in their statement under Section 313 of Code
of Criminal Procedure, 1973, (hereinafter referred to as the
‘Cr.P.C.’) denied their involvement and submitted that they had been
falsely implicated because of political enmity. The defence also
examined one Penugonda Sreenivasulu (DW.1), who claimed to have
prepared the site plan (Ex.X-1) but not on the basis of scale
measurement.
F. On the basis of the evidence etc., the trial court found A1 to
A6 guilty of the aforesaid offences and awarded them sentences as
referred to hereinabove, however, A7 to A13 were acquitted.
G. Aggrieved, A1 to A6 filed Criminal Appeal No. 41 of 2005 which
has been allowed by the High Court.
Hence, these appeals by the complainant as well as by the State
of Andhra Pradesh.
3. Shri Sidharth Luthra, learned ASG appearing on behalf of the
State of Andhra Pradesh and Shri Huzefa Ahmadi, learned senior counsel
appearing on behalf of the appellant/complainant, have submitted that
the High Court acquitted the said respondents without any
justification. The High Court mainly found material contradictions in
the evidence of PW.1 to PW.3 and doubted their presence at the place
of occurrence; considered the delay in lodging the FIR fatal; found
contradictions in medical evidence and ocular evidence; doubted the
witnessing of the occurrence as there could be no visibility because
of the smoke created by the bombs at the time of explosion; PW.1 did
not mention that A6 used a sickle in the FIR; and that only interested
witnesses had been examined. It was contended that the High Court
erroneously did the same even though, the contradictions in the
medical and ocular evidence were insignificant and the contradictions
in the statements of PWs 1 to 3 were minor in nature. The findings of
fact recorded by the High Court are perverse being based on no
evidence. Thus, the appeals deserve to be allowed and the judgment of
the trial court deserves to be restored.
4. Per contra, Shri Altaf Ahmad, learned senior counsel appearing
on behalf of the respondents, opposed the appeal contending that this
Court should not interfere with the judgment of the High Court keeping
in mind the well settled parameters for interference with the order of
acquittal. The High Court has given cogent reasons for acquittal of
the respondents. The incident occurred in a faction-ridden village
and, admittedly, there had been a political rivalry between the
parties. The delay in lodging the FIR which is at about 3.00 P.M.,
though the incident occurred at 7.00 A.M.– 7.30 A.M., was inordinate
in view of the fact that the police had arrived at the scene of
occurrence at about 9.00 A.M. The FIR was lodged after due
deliberation with political leaders. Thus, no interference is called
for and appeals are liable to be dismissed.
5. We have considered the rival submissions made by the learned
counsel for the parties and perused the records. Before deciding the
factual controversies, we will first deal with LEGAL ISSUES:
APPEAL AGAINST ACQUITTAL:
6. This Court has persistently emphasised that there are
limitations while interfering with an order against acquittal. In
exceptional cases where there are compelling circumstances and the
judgment under appeal is found to be perverse, the appellate court can
interfere with the order of acquittal. The appellate court should bear
in mind the presumption of innocence of the accused and further that
the acquittal by the lower Court bolsters the presumption of his
innocence. Interference in a routine manner where the other view is
possible should be avoided, unless there are good reasons for
interference.
CONTRADICTIONS IN MEDICAL EVIDENCE AND OCULAR EVIDENCE:
7. It is a settled legal proposition that where the evidence of the
witnesses for the prosecution is totally inconsistent with the medical
evidence or the evidence of the ballistics expert, it amounts to a
fundamental defect in the prosecution case and unless it is reasonably
explained may discredit the entire case of the prosecution. However,
the opinion given by a medical witness need not be the last word on
the subject. Such an opinion is required to be tested by the court. If
the opinion is bereft of logic or objectivity, the court is not
obliged to go by that opinion. After all an opinion is what is formed
in the mind of a person regarding a particular fact situation. If one
doctor forms one opinion and another doctor forms a different opinion
on the same facts, it is open to the Judge to adopt the view which is
more objective or probable. Similarly, if the opinion given by one
doctor is not consistent or probable, the court has no liability to go
by that opinion merely because it is given by the doctor. “It would be
erroneous to accord undue primacy to the hypothetical answers of
medical witnesses to exclude the eyewitnesses’ account which had to be
tested independently and not treated as the ‘variable’ keeping the
medical evidence as the ‘constant’ ”.
Where the eyewitnesses’ account is found credible and trustworthy,
a medical opinion pointing to alternative possibilities cannot be
accepted as conclusive. The eyewitnesses’ account requires a careful
independent assessment and evaluation for its credibility, which
should not be adversely prejudged on the basis of any other evidence,
including medical evidence, as the sole touchstone for the test of
such credibility.
(Vide: Ram Narain Singh v. State of Punjab, AIR 1975 SC 1727; State of
Haryana v. Bhagirath, AIR 1999 SC 2005; Abdul Sayeed v. State of M.P.,
(2010) 10 SCC 259; and Rakesh v. State of M.P., (2011) 9 SCC 698).
8. Thus, the position of law in cases where there is a
contradiction between medical evidence and ocular evidence stands
crystallised to the effect that though the ocular testimony of a
witness has greater evidentiary value vis-à-vis medical evidence, when
medical evidence makes the ocular testimony improbable, that becomes a
relevant factor in the process of the evaluation of evidence. However,
where the medical evidence goes so far that it completely rules out
all possibility of the ocular evidence being true, the ocular evidence
may be disbelieved.
CONTRADICTIONS IN EVIDENCE:
9. In State of U.P. v. Naresh, (2011) 4 SCC 324, this Court after
considering a large number of its earlier judgments held:
“In all criminal cases, normal discrepancies are bound to
occur in the depositions of witnesses due to normal errors of
observation, namely, errors of memory due to lapse of time or
due to mental disposition such as shock and horror at the time
of occurrence. Where the omissions amount to a contradiction,
creating a serious doubt about the truthfulness of the witness
and other witnesses also make material improvement while
deposing in the court, such evidence cannot be safe to rely
upon. However, minor contradictions, inconsistencies,
embellishments or improvements on trivial matters which do not
affect the core of the prosecution case, should not be made a
ground on which the evidence can be rejected in its entirety.
The court has to form its opinion about the credibility of the
witness and record a finding as to whether his deposition
inspires confidence.
Exaggerations per se do not render the evidence brittle. But
it can be one of the factors to test credibility of the
prosecution version, when the entire evidence is put in a
crucible for being tested on the touchstone of credibility.
Therefore, mere marginal variations in the statements of a
witness cannot be dubbed as improvements as the same may be
elaborations of the statement made by the witness earlier. The
omissions which amount to contradictions in material particulars
i.e. go to the root of the case/materially affect the trial or
core of the prosecution’s case, render the testimony of the
witness liable to be discredited.”
A similar view has been re-iterated by this Court in Tehsildar Singh &
Anr. v. State of U.P., AIR 1959 SC 1012; Pudhu Raja & Anr. v. State,
Rep. by Inspector of Police, JT 2012 (9) SC 252; and Lal Bahadur v.
State (NCT of Delhi), (2013) 4 SCC 557).
10. Thus, it is evident that in case there are minor contradictions
in the depositions of the witnesses the same are bound to be ignored
as the same cannot be dubbed as improvements and it is likely to be so
as the statement in the court is recorded after an inordinate delay.
In case the contradictions are so material that the same go to the
root of the case, materially affect the trial or core of the
prosecution case, the court has to form its opinion about the
credibility of the witnesses and find out as to whether their
depositions inspire confidence.
EVIDENCE OF A RELATED/INTERESTED WITNESSES:
11. It is a settled legal proposition that the evidence of closely
related witnesses is required to be carefully scrutinised and
appreciated before any conclusion is made to rest upon it, regarding
the convict/accused in a given case. Thus, the evidence cannot be
disbelieved merely on the ground that the witnesses are related to
each other or to the deceased. In case the evidence has a ring of
truth to it, is cogent, credible and trustworthy, it can, and
certainly should, be relied upon.
(Vide: Bhagalool Lodh & Anr. v. State of U.P., AIR 2011 SC 2292; and
Dhari & Ors. v. State of U. P., AIR 2013 SC 308).
12. In State of Rajasthan v. Smt. Kalki & Anr. AIR 1981 SC 1390,
this Court held:
“5A. As mentioned above the High Court has declined to rely on
the evidence of P.W. 1 on two grounds: (1) she was a "highly
interested" witness because she "is the wife of the
deceased"……For, in the circumstances of the case, she was the
only and most natural witness; she was the only person present
in the hut with the deceased at the time of the occurrence, and
the only person who saw the occurrence. True it is she is the
wife of the deceased; but she cannot be called an 'interested'
witness. She is related to the deceased. 'Related' is not
equivalent to 'interested. A witness may be called 'interested'
only when he or she derives some benefit from the result of a
litigation; in the decree in a civil case, or in seeing an
accused person punished. A witness who is a natural one and is
the only possible eye witness in the circumstances of a case
cannot be said to be 'interested'. In the instant case P.W.1 had
no interest in protecting the real culprit, and falsely
implicating the respondents.”
(Emphasis added)
(See also: Chakali Maddilety & Ors. v. State of A. P., AIR 2010 SC
3473).
13. In Sachchey Lal Tiwari v. State of U.P., AIR 2004 SC 5039,
while dealing with the case this Court held:
“7. …..Murders are not committed with previous notice to
witnesses; soliciting their presence. If murder is committed in
a dwelling house, the inmates of the house are natural
witnesses. If murder is committed in a street, only passers-by
will be witnesses. Their evidence cannot be brushed aside or
viewed with suspicion on the ground that they are mere 'chance
witnesses'. The expression 'chance witness' is borrowed from
countries where every man's home is considered his castle and
everyone must have an explanation for his presence elsewhere or
in another man's castle. It is quite unsuitable an expression in
a country where people are less formal and more casual, at any
rate in the matter explaining their presence.”
14. In view of the above, it can safely be held that natural
witnesses may not be labelled as interested witnesses. Interested
witnesses are those who want to derive some benefit out of the
litigation/case. In case the circumstances reveal that a witness was
present on the scene of the occurrence and had witnessed the crime,
his deposition cannot be discarded merely on the ground of being
closely related to the victim/deceased.
DELAY IN LODGING FIR AND ITS CONTENTS:
15. The case of the prosecution cannot be rejected solely on the
ground of delay in lodging the FIR. The court has to examine the
explanation furnished by the prosecution for explaining the delay.
There may be various circumstances particularly the number of victims,
atmosphere prevailing at the scene of incidence, the complainant may
be scared and fearing the action against him in pursuance of the
incident that has taken place. If the prosecution explains the delay,
the court should not reject the case of the prosecution solely on this
ground. Therefore, the entire incident as narrated by the witnesses
has to be construed and examined to decide whether there was an
unreasonable and unexplained delay which goes to the root of the case
of the prosecution and even if there is some unexplained delay, the
court has to take into consideration whether it can be termed as
abnormal.
(Vide: P. Venkataswarlu v. State of A.P., AIR 2003 SC 574; and State
of U.P. v. Munesh, AIR 2013 SC 147).
16. It is also a settled legal proposition that merely not
mentioning all the names of all the accused or their overt acts
elaborately or details of injuries said to have been suffered, could
not render the FIR vague or unreliable. The FIR is not an
encyclopaedia of all the facts. More so, it is quite natural that all
the names and details may not be given in the FIR, where a large
number of accused are involved.
NON-CROSS EXAMINATION OF A WITNESS ON A PARTICULAR ISSUE:
17. This Court in Laxmibai (Dead) Thr. L.Rs. & Anr. v. Bhagwanthuva
(Dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 examined the effect of non-
cross examination of witness on a particular fact/circumstance and
held as under:
“31. Furthermore, there cannot be any dispute with respect to
the settled legal proposition, that if a party wishes to raise
any doubt as regards the correctness of the statement of a
witness, the said witness must be given an opportunity to
explain his statement by drawing his attention to that part of
it, which has been objected to by the other party, as being
untrue. Without this, it is not possible to impeach his
credibility. Such a law has been advanced in view of the
statutory provisions enshrined in Section 138 of the Evidence
Act, 1872, which enable the opposite party to cross-examine a
witness as regards information tendered in evidence by him
during his initial examination in chief, and the scope of this
provision stands enlarged by Section 146 of the Evidence Act,
which permits a witness to be questioned, inter-alia, in order
to test his veracity. Thereafter, the unchallenged part of his
evidence is to be relied upon, for the reason that it is
impossible for the witness to explain or elaborate upon any
doubts as regards the same, in the absence of questions put to
him with respect to the circumstances which indicate that the
version of events provided by him, is not fit to be believed,
and the witness himself, is unworthy of credit. Thus, if a party
intends to impeach a witness, he must provide adequate
opportunity to the witness in the witness box, to give a full
and proper explanation. The same is essential to ensure fair
play and fairness in dealing with witnesses.”
(Emphasis supplied)
(See also: Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181; and
Gian Chand & Ors. v. State of Haryana, JT 2013 (10) SC 515).
18. Thus, it becomes crystal clear that the defence cannot rely on
nor can the court base its finding on a particular fact or issue on
which the witness has not made any statement in his examination-in-
chief and the defence has not cross examined him on the said aspect of
the matter.
19. The case is thus, required to be examined with reference to the
aforesaid legal propositions.
Y. Eswara Reddy (PW.1) submitted the complaint stating that they
were working in their respective fields in the morning, and had gone
to the neighbouring field after hearing the hue and cry and found that
one Rayapati Narayana Reddy had died due to electrocution. When they
returned and began to work in their field, the accused persons came
there armed with sticks, knives, bombs and sickles and some of them
were whistling war cries. Y. Ramachandra Reddy (deceased) and his
brother Balagangi Reddy also came there. The accused trespassed in
their field and chased the deceased who escaped on his cycle. A2
hurled a bomb at Y. Ramachandra Reddy (deceased) which hit him on the
legs and he fell down from the cycle. A1 hurled a bomb which fell on
the head of Y. Ramachandra Reddy (deceased) and A3, A4 and A5 also
hurled bombs which fell in close proximity of Y. Ramachandra Reddy
(deceased). A6 hacked Y. Ramachandra Reddy (deceased) with a hunting
sickle on his head. The witness apprehended danger to his life and
ran away and hid in the bushes. When he returned he did not find any
person at the scene of occurrence. He came to the village at 10.30
A.M. The police took him into custody and took him to the
agricultural field where Rayapati Narayana Reddy had died as the
police suspected him to be involved in his murder. He wanted to lodge
a complaint regarding the death of his brother, however, as the police
was involved in settling down the tension in the village, he was told
that it would be registered after some time. He deposed that he was
totally illiterate and was asked by the police to get the complaint
written by somebody. He submitted it later at about 1.00 P.M.,
though, it was shown at 3.00 P.M. He had also disclosed that the two
groups belonged to different political parties and there was rivalry
between them.
20. The deposition of Y. Gangadhar Reddy (PW.2), the nephew of Y.
Ramachandra Reddy (deceased), corroborated the evidence of Y. Eswara
Reddy (PW.1) regarding the death of Rayapati Narayana Reddy who had
died due to electrocution. They came back to their field and started
working. The accused persons came fully armed with sticks, knives,
bombs and sickles and some of them were whistling war cries. Y.
Balagangi Reddy ran towards Railway Gate. Narayanamma and Y.
Gangabhavani (PW.3) followed him. Accused A7 to A13 chased Balagangi
Reddy. Apprehending danger to his life, Y. Ramachandra Reddy escaped
on his cycle. A1 to A6 chased him. A2 threw a bomb which hit Y.
Ramachandra Reddy (deceased) on his legs. He fell down from the cycle.
A1 hurled another bomb which hit him on his head and he suffered a
fracture. A3 to A5 also hurled bombs but the same fell in his close
proximity. A6 was holding a sickle with which he hacked the head of
deceased.
21. Y. Gangabhavani (PW.3) widow of Y. Ramachandra Reddy (deceased),
duly corroborated the evidence of Y. Eswara Reddy (PW.1) and Y.
Gangadhar Reddy (PW.2) by narrating the incident in the same manner.
She also deposed about how her husband fell down from the cycle after
being hit by the bomb which was hurled by A2. Bomb hurled by A1 hit
him on his head, which caused fracture on the head of deceased. A3 to
A5 hurled bombs which exploded by the side of her husband. A6 hacked
on the left side of the head of her husband with a hunting sickle. She
herself could not muster courage to come forward to save her husband
rather, she hid behind the bushes and came out only after the police
arrived. She identified the clothes of her husband and other articles
that belonged to him.
22. Dr. Y. Karunasree (PW.6) conducted the post-mortem examination,
who deposed that she found on the body of Y. Ramachandra Reddy, the
following injuries:
?External Injuries:
“1) Crushed lacerated extensive injury involving bones muscles,
vessels, like soft tissues (including brain matter) parts of
skull and right side of the face. Hairy part of the scalp
including upper part of the cranium, both eye balls, nose, upper
jaw, brain matter blown off. Blackening of the injured parts and
surrounding tissues present. Clotting present over wound edges.
2) Incised injury 3x2 cms into bone deep size present over left
cheek extended and ended into injury No.1.
3) Crushed lacerated injury involving left eye ball, nose, major
part of the upper lip and sparing the lower lip.
4) Multiple various sized splinter injuries present over right
side of the chest and upper abdominal region with blackening
surrounding tissues. Clotting present over the wound.
?
?5) Multiple various sized small contusions present over right
side back, left axillary's region, left waist region, left fore
arm and upper arm and front of the left knee joint.
6) Multiple various sized spinster injuries with blackening of
surrounding tissues present over front of the right upper limb,
front and back of the right thigh and back of left thigh.”
She opined that deceased appeared to have died of shock due to
fracture of skull bones and lacerations of brain matter. In her
opinion, death occurred 12 to 14 hours prior to her examination. In
her cross-examination she deposed that:
? “….Injury No.2 in EX.P-4 is possible by sharp edged weapon
(Addl. P.P. shown too hunting sickles to the witness). The
injury No.2 is possible with hunting sickles shown to me
Blackening mentioned in the Injury No.4 due to explosion bomb.
Injury NO.5 may be possible by falling on the ground. Injury
NO.6 is also possible with explosion of bomb…..”
23. M. Pratap Naidu (PW.7) was a panch witness in the inquest of the
dead body of Y. Ramachandra Reddy (deceased). D. Khader Basha, V.A.O.,
(PW.8) was taken by the police to the place of the occurrence. There
he found some bombs in a bucket and he signed some documents regarding
the recovery of the same. A1, A2 and A7 were taken in the police
custody in his presence. Some hunting sickles and other articles were
also recovered from the accused.
24. S.V. Ramana, C.I. (PW.9) is the police officer who received the
complaint. He deposed that he was posted at the concerned police
station as an S.I. He received vague information regarding the deaths
at Kodigandlapalli village. In view thereof, he left the police
station immediately at 9.40 A.M. and reached the place of occurrence.
Prior to his arrival, Inspector of Police, Mondapuram had already
reached to the scene of the offence. On the same day, he received a
written complaint at 3.00 P.M., on the basis of which, an FIR was
registered. In his cross-examination, he explained that when he
reached the place of occurrence, he asked the persons present there to
submit a complaint in writing but out of fear, nobody did the same.
He further deposed that the distance between the village and police
station was 16 Kms. He reiterated on being asked again in the cross-
examination that he tried his level best to get a complaint from a
person not concerned with the faction, but no one came forward.
25. S.M. Basha, H.C. (PW.10) is the investigating officer, incharge
of the police station and he deposed that the case was registered
against the accused persons and he further pointed out that three
murders had taken place and most of the police personnel had gone
there and only one or two persons were left in the police station. He
also deposed that after getting the complaint, it was forwarded to the
Magistrate’s Court which was received therein on 5.12.1999 at 1.20
A.M.
26. So far as P. Sreenivasulu (DW.1) was concerned, though he was
examined by the defence, he did not depose with respect to anything
worth mentioning either in support of prosecution or of the defence.
27. In view of the aforesaid evidence, the trial court came to the
conclusion that there was some delay in lodging the FIR and came to
the conclusion that it was duly established from the evidence of PWs.1
to 3 that A1 to A6 committed the offence against Y. Ramachandra Reddy
(deceased) and their narration about the manner in which the offence
was committed, could not be doubted as the witnesses have identified
the accused persons and material objects particularly M.O.1 to M.O.6.
The FSL report (Ex.P-8) also dealt with pieces of thread, blood
stained tar road sample and control tar road sample contained in
M.Os.1, 2, 4 and 7. The aforesaid articles were the result of the
explosion of a mixture containing Potassium, Chlorate Chloride,
Arsenic, Sulphide and Sulphate etc. The court also dealt with other
material objects contained in M.Os.9 and 11 and held that the accused
had bombs that exploded and killed Y. Ramachandra Reddy (deceased)
and, therefore, they were convicted.
28. The High Court reappreciated the evidence and found fault with
the judgment of the trial Court and held that there were
contradictions in medical evidence and ocular evidence. As per the
evidence of Dr. Y. Karunasree (PW.6) who conducted the post-mortem
examination, there were incised injuries 3x2 Cms., bone deep over the
left cheek which was possible only by a sharp edged weapon. However,
she did not mention in her cross-examination which weapon could have
caused such an injury.
29. In view of the fact that there is sufficient evidence on record
that Y. Ramachandra Reddy (deceased) was hacked with a hunting sickle
and in such a case, A6 was convicted under Section 148 IPC, the want
of such an explanation is irrelevant. The cause of death as opined by
the medical evidence was shock due to fracture of skull bone and
lacerations to the brain matter and that in normal circumstances
injury Nos. 1 to 3 could cause death. The doctor specifically deposed
that Y. Ramachandra Reddy (deceased) died of a fracture of skull bones
i.e. injury no. 1. Dr. Y. Karunasree (PW.6) further explained that
she did not mention the type of weapon used for the reason that she
was not asked about the same. However, she had clearly deposed that
injury no. 2 could have been caused by a hunting sickle. This
evidence of Dr. Y. Karunasree (PW.6) stood fully corroborated by the
version given by PWs. 1 to 3 who have clearly deposed that A6 hacked
the deceased with hunting sickle on his head.
30. In view thereof, we cannot concur with the finding recorded by
the High Court on this aspect. The High Court has also taken note of
the fact that the overt act assigned to A6 has not been mentioned in
the FIR. The evidence on record clearly revealed that A1 to A6 came
armed with deadly weapons whistling war cries and chased Y.
Ramachandra Reddy (deceased). The trial court convicted A6 with the
aid of Section 149 IPC and not independently for the reason that the
trial court was not satisfied that A6 had hacked the deceased. D.
Khader Basha, V.A.O., (PW.8), who was the witness to the recoveries,
deposed that seizure of hunting sickle etc. was made at the disclosure
statement of the accused and he had signed the recovery memos for the
same. Thus, the observations made by the High Court in this regard
cannot be approved.
31. The High Court erroneously observed that the eye-witnesses did
not speak of the explosion of bombs by certain accused and, therefore,
their presence at the place of occurrence was doubted and they could
also not have seen the incident because of smoke from the explosion.
Such a finding was totally unwarranted, uncalled for and is perverse
being based on no evidence. Not a single question had been put to the
eye-witnesses in this respect and, therefore, there is nothing on
record to show that their visibility was impaired due to the emanating
of smoke and the said finding recorded by the High Court could be
simply termed as illogical. The witnesses deposed that A3 to A5 also
hurled the bombs which had fallen in close vicinity of the body of Y.
Ramachandra Reddy (deceased) though they did not hit him. It was
specifically mentioned that bombs hurled by A1 and A2 had hit him,
therefore, it is clear that there is no discrepancy in the testimony
of the eye-witnesses with respect to the overt acts of the accused.
More so, the High Court doubted the version given by Y. Eswara Reddy
(PW.1) that out of fear he hid himself behind the bushes and returned
after some time and when he came back there, he did not find any
person, though, in his cross-examination, he explained that about two
hundred persons gathered at the place of occurrence after the accused
had left the place. The evidence is to be examined considering the
tension prevailing at the place of occurrence. It is natural that in
such a fact-situation every person would feel the apprehension of
danger to his life and may run away. There may be some discrepancy in
his evidence in cross-examination but it has to be examined while
taking into consideration the evidence on record as a whole. As he
explained the gathering of a crowd consisting of approximately 200
persons, may have been at a later point of time. Therefore, merely on
the basis of such a statement his presence could not be doubted and
his version could not be discarded.
32. So far as the delay in lodging of FIR is concerned, it has to be
considered in light of the prevailing circumstances on that fateful
day when two persons were murdered and third died of electrocution.
The incident occurred in a faction ridden village having only 80
houses. The accused persons used bombs etc. for killing two persons.
The police arrived at 10 O’clock in the morning in the village. Y.
Eswara Reddy (PW.1) was taken into custody suspecting his involvement
in the murder of Rayapati Narayana Reddy who died due to
electrocution. Therefore, in such a fact-situation, such adverse
inference could not have been drawn and testimony of Y. Eswara Reddy
(PW.1), who had submitted the FIR, since he was illiterate and, a
rustic villager and did not know the niceties of law, could not be
doubted. When he lodged an oral complaint, he was asked to get it
written by somebody and then present it for lodging the FIR. The
police officials made it clear in their cross-examination that they
had asked persons present at the place of occurrence to give a
complaint in regard to the incident twice, but nobody came forward to
give it. In view thereof, we do not think that a person who had lost
two of his family members and had been suspected of being involved in
the murder of Rayapati Narayana Reddy who died due to electrocution
alongwith the fact that no other person was willing to submit a
complaint, the delay of 6 hours, could be fatal, particularly in view
of depositions of the eye-witnesses. Thus, the delay has been fully
explained by the prosecution and there was no occasion for the High
Court to take it to be fatal to the case of the prosecution.
33. There could be no reason for the eye-witnesses i.e. PWs 1 to 3,
who had lost two of their family members, to falsely implicate the
respondents and spare the real assailants.
34. In view of the above, the findings recorded by the High Court
are liable to be set aside being perverse. The appeals succeed and are
allowed. The judgment and order of the High Court dated 13.2.2007
passed in Crl.Appeal No. 41 of 2005 is set aside, and judgment and
order of the trial court dated 22.12.2004 passed in Sessions Case No.
374/2000 is restored. The respondents are directed to surrender within
a period of 4 weeks from today to serve out the remaining sentence,
failing which the learned Additional Sessions Judge, Kadapa, is
requested to take them into custody and send them to jail to serve
their left over sentences. A copy of this judgment be sent to the said
court for information and compliance.
……..…………..…………J.
(Dr. B.S. CHAUHAN)
………..……………..……J.
(S.A. BOBDE)
New Delhi,
September 4, 2013
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 84 of 2011
Gangabhavani …Appellant
Versus
Rayapati Venkat Reddy & Ors.
…Respondents
With
CRIMINAL APPEAL NO. 86 of 2011
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. Both these appeals have been preferred against the impugned
judgment and order of the High Court of Andhra Pradesh at Hyderabad
dated 13.2.2007 passed in Criminal Appeal No. 41 of 2005, reversing
the judgment and order dated 22.12.2004 passed by the Additional
Sessions Judge, Kadapa at Proddatur in Sessions Case No. 374 of 2000,
by which and whereunder the respondents were found guilty and
convicted under Section 148 of Indian Penal Code, 1860 (hereinafter
referred as `the IPC’) and awarded a sentence of 2 years each. A1 and
A2 had been convicted for the offence punishable under Section 302 IPC
and they were awarded life imprisonment with a fine of Rs.500/- and in
default, to undergo further simple imprisonment for one month. They
were also convicted under the provisions of Section 3 of the Explosive
Substances Act, 1908 (hereinafter referred to as the ‘Act 1908’) and
had been awarded the sentence of 3 years with a fine of Rs.500/- and
Rs.200/- respectively and, in default, to further undergo simple
imprisonment for one month and 15 days respectively. They had further
been convicted under Section 5 of the Act 1908, and were awarded the
punishment of three years with a fine of Rs.500/- each, in default to
suffer simple imprisonment for one month. A3 to A6 had been convicted
and sentenced to undergo life imprisonment and to pay a fine of
Rs.500/- each under Section 302 read with Section 149 IPC and, in
default of payment of fine, to undergo a further period of simple
imprisonment of one month each. However, A3 was acquitted for the
offence under Section 6 of the Act 1908. A4 and A5 were further
convicted under Sections 3 and 5 of the Act 1908 and awarded the
punishment of 3 years on each count with a fine of Rs.500/- and, in
default, to undergo a further period of imprisonment for one month.
However, all the sentences were directed to run concurrently.
2. Facts and circumstances giving rise to these appeals are that:
A. On 4.12.1999, Y. Eswara Reddy (PW.1), Y. Gangadhar Reddy (PW.2)
and Y. Gangabhavani (PW.3) were working in their agricultural fields
alongwith Y. Ramachandra Reddy (deceased) and his brother Balagangi
Reddy and others.
B. Y. Ramachandra Reddy (deceased) and his brother Balagangi Reddy
supported the Congress-I party in the elections held for the State
Assembly, while the accused persons supported the Telugu Desham Party
(TDP). There were ill feelings between two groups as there existed
chronic factionalism between the families of the deceased and accused.
In State Assembly elections, the political parties created pressure
on their supporters to get maximum votes, by any means. The accused
persons were waiting for the opportunity to kill Balagangi Reddy and
Y. Ramachandra Reddy (deceased).
C. On 4.12.1999, when PW.1 to PW.3 and some others were doing
agricultural work in their fields alongwith Y. Ramachandra Reddy
(deceased) in the morning, they heard weeping cries from the
agricultural field nearby. All of them rushed to that place and found
that Rayapati Narayana Reddy had died due to electrocution. After
sometime, they returned to their fields and attended to their work.
At 7.30 A.M., the accused Rayapati Venkata Reddy (A1), Rayapati
Ramanjul Reddy (A2), Rayapati Bheema Reddy (A3), Korrapati Rami Reddy
(A4), Korrapati Thimma Reddy (A5), Kadiyam Rami Reddy (A6), Rayapati
Thirupathi Reddy (A7), Rayapati Pedda Venkata Reddy (A8), Kadiyam Rama
Subba Reddy (A9), Rayapati Pedda Venkata Reddy (A10), Rayapati Chinna
Bali Reddy (A11), Rayapati Venkata Reddy (A12) and Chinnapureddy Bala
Chenna Reddy (A13) came to the fields where PW.1 to PW.3, namely, Y.
Eswara Reddy (PW.1), Y. Gangadhar Reddy (PW.2) and Y. Gangabhavani
Reddy (PW.3) were working armed with deadly weapons like sticks,
knives, bombs and sickles whistling war cries and hurling bombs with
the intent to kill Ramachandra Reddy and Balagangi Reddy. Balagangi
Reddy fled his fields due to fear and was chased by A7 to A13. PW.1
hid himself under cheeky bushes near his field. Y. Ramachandra Reddy
(deceased) fled on his cycle. A2 hurled a bomb which fell on the
cycle of the deceased and exploded causing the deceased to fall from
his cycle. A1 also hurled a bomb which hit the head of Y. Ramachandra
Reddy. His head was fractured and he died due to injuries. A4 and
A5 also hurled bombs towards the deceased.
D. PW.1 to PW.3 witnessed the same, however, failed to give a
report immediately to the police due to fear of their lives. Y.
Eswara Reddy (PW.1) preferred a complaint to the police, thus, Case
Crime No. 137 of 1999 of Muddanur PS was registered. S.V. Ramana, C.I.
(PW.9) began investigation, and conducted the inquest over the dead
body of the deceased in presence of R. Pedda Naidu (PW.4) and M.
Pratap Naidu (PW.7). He also seized blood stained tar, control tar,
bomb blast thread pieces and the cycle of the deceased. Further, the
Dhoti, Banian and waist thread of the deceased were also seized.
Chappals of A5 which had been lying there were recovered in the
presence of M. Pedda Aswartha Reddy (PW.5). The dead body of Y.
Ramachandra Reddy (deceased) was sent for post-mortem which was
conducted by Dr. Y. Karunasree (PW.6) wherein it was opined that he
died of shock due to a fracture of the skull bones and lacerations to
brain matter. The materials collected were sent for forensic analysis
and it was found that the bombs contained Potassium, Chlorate
Chloride, Arsenic, Sulphide and Sulphate etc.
E. After concluding the investigation, a chargesheet was filed
against A1 to A13. During the trial, the prosecution examined 14
witnesses. The accused in their statement under Section 313 of Code
of Criminal Procedure, 1973, (hereinafter referred to as the
‘Cr.P.C.’) denied their involvement and submitted that they had been
falsely implicated because of political enmity. The defence also
examined one Penugonda Sreenivasulu (DW.1), who claimed to have
prepared the site plan (Ex.X-1) but not on the basis of scale
measurement.
F. On the basis of the evidence etc., the trial court found A1 to
A6 guilty of the aforesaid offences and awarded them sentences as
referred to hereinabove, however, A7 to A13 were acquitted.
G. Aggrieved, A1 to A6 filed Criminal Appeal No. 41 of 2005 which
has been allowed by the High Court.
Hence, these appeals by the complainant as well as by the State
of Andhra Pradesh.
3. Shri Sidharth Luthra, learned ASG appearing on behalf of the
State of Andhra Pradesh and Shri Huzefa Ahmadi, learned senior counsel
appearing on behalf of the appellant/complainant, have submitted that
the High Court acquitted the said respondents without any
justification. The High Court mainly found material contradictions in
the evidence of PW.1 to PW.3 and doubted their presence at the place
of occurrence; considered the delay in lodging the FIR fatal; found
contradictions in medical evidence and ocular evidence; doubted the
witnessing of the occurrence as there could be no visibility because
of the smoke created by the bombs at the time of explosion; PW.1 did
not mention that A6 used a sickle in the FIR; and that only interested
witnesses had been examined. It was contended that the High Court
erroneously did the same even though, the contradictions in the
medical and ocular evidence were insignificant and the contradictions
in the statements of PWs 1 to 3 were minor in nature. The findings of
fact recorded by the High Court are perverse being based on no
evidence. Thus, the appeals deserve to be allowed and the judgment of
the trial court deserves to be restored.
4. Per contra, Shri Altaf Ahmad, learned senior counsel appearing
on behalf of the respondents, opposed the appeal contending that this
Court should not interfere with the judgment of the High Court keeping
in mind the well settled parameters for interference with the order of
acquittal. The High Court has given cogent reasons for acquittal of
the respondents. The incident occurred in a faction-ridden village
and, admittedly, there had been a political rivalry between the
parties. The delay in lodging the FIR which is at about 3.00 P.M.,
though the incident occurred at 7.00 A.M.– 7.30 A.M., was inordinate
in view of the fact that the police had arrived at the scene of
occurrence at about 9.00 A.M. The FIR was lodged after due
deliberation with political leaders. Thus, no interference is called
for and appeals are liable to be dismissed.
5. We have considered the rival submissions made by the learned
counsel for the parties and perused the records. Before deciding the
factual controversies, we will first deal with LEGAL ISSUES:
APPEAL AGAINST ACQUITTAL:
6. This Court has persistently emphasised that there are
limitations while interfering with an order against acquittal. In
exceptional cases where there are compelling circumstances and the
judgment under appeal is found to be perverse, the appellate court can
interfere with the order of acquittal. The appellate court should bear
in mind the presumption of innocence of the accused and further that
the acquittal by the lower Court bolsters the presumption of his
innocence. Interference in a routine manner where the other view is
possible should be avoided, unless there are good reasons for
interference.
CONTRADICTIONS IN MEDICAL EVIDENCE AND OCULAR EVIDENCE:
7. It is a settled legal proposition that where the evidence of the
witnesses for the prosecution is totally inconsistent with the medical
evidence or the evidence of the ballistics expert, it amounts to a
fundamental defect in the prosecution case and unless it is reasonably
explained may discredit the entire case of the prosecution. However,
the opinion given by a medical witness need not be the last word on
the subject. Such an opinion is required to be tested by the court. If
the opinion is bereft of logic or objectivity, the court is not
obliged to go by that opinion. After all an opinion is what is formed
in the mind of a person regarding a particular fact situation. If one
doctor forms one opinion and another doctor forms a different opinion
on the same facts, it is open to the Judge to adopt the view which is
more objective or probable. Similarly, if the opinion given by one
doctor is not consistent or probable, the court has no liability to go
by that opinion merely because it is given by the doctor. “It would be
erroneous to accord undue primacy to the hypothetical answers of
medical witnesses to exclude the eyewitnesses’ account which had to be
tested independently and not treated as the ‘variable’ keeping the
medical evidence as the ‘constant’ ”.
Where the eyewitnesses’ account is found credible and trustworthy,
a medical opinion pointing to alternative possibilities cannot be
accepted as conclusive. The eyewitnesses’ account requires a careful
independent assessment and evaluation for its credibility, which
should not be adversely prejudged on the basis of any other evidence,
including medical evidence, as the sole touchstone for the test of
such credibility.
(Vide: Ram Narain Singh v. State of Punjab, AIR 1975 SC 1727; State of
Haryana v. Bhagirath, AIR 1999 SC 2005; Abdul Sayeed v. State of M.P.,
(2010) 10 SCC 259; and Rakesh v. State of M.P., (2011) 9 SCC 698).
8. Thus, the position of law in cases where there is a
contradiction between medical evidence and ocular evidence stands
crystallised to the effect that though the ocular testimony of a
witness has greater evidentiary value vis-à-vis medical evidence, when
medical evidence makes the ocular testimony improbable, that becomes a
relevant factor in the process of the evaluation of evidence. However,
where the medical evidence goes so far that it completely rules out
all possibility of the ocular evidence being true, the ocular evidence
may be disbelieved.
CONTRADICTIONS IN EVIDENCE:
9. In State of U.P. v. Naresh, (2011) 4 SCC 324, this Court after
considering a large number of its earlier judgments held:
“In all criminal cases, normal discrepancies are bound to
occur in the depositions of witnesses due to normal errors of
observation, namely, errors of memory due to lapse of time or
due to mental disposition such as shock and horror at the time
of occurrence. Where the omissions amount to a contradiction,
creating a serious doubt about the truthfulness of the witness
and other witnesses also make material improvement while
deposing in the court, such evidence cannot be safe to rely
upon. However, minor contradictions, inconsistencies,
embellishments or improvements on trivial matters which do not
affect the core of the prosecution case, should not be made a
ground on which the evidence can be rejected in its entirety.
The court has to form its opinion about the credibility of the
witness and record a finding as to whether his deposition
inspires confidence.
Exaggerations per se do not render the evidence brittle. But
it can be one of the factors to test credibility of the
prosecution version, when the entire evidence is put in a
crucible for being tested on the touchstone of credibility.
Therefore, mere marginal variations in the statements of a
witness cannot be dubbed as improvements as the same may be
elaborations of the statement made by the witness earlier. The
omissions which amount to contradictions in material particulars
i.e. go to the root of the case/materially affect the trial or
core of the prosecution’s case, render the testimony of the
witness liable to be discredited.”
A similar view has been re-iterated by this Court in Tehsildar Singh &
Anr. v. State of U.P., AIR 1959 SC 1012; Pudhu Raja & Anr. v. State,
Rep. by Inspector of Police, JT 2012 (9) SC 252; and Lal Bahadur v.
State (NCT of Delhi), (2013) 4 SCC 557).
10. Thus, it is evident that in case there are minor contradictions
in the depositions of the witnesses the same are bound to be ignored
as the same cannot be dubbed as improvements and it is likely to be so
as the statement in the court is recorded after an inordinate delay.
In case the contradictions are so material that the same go to the
root of the case, materially affect the trial or core of the
prosecution case, the court has to form its opinion about the
credibility of the witnesses and find out as to whether their
depositions inspire confidence.
EVIDENCE OF A RELATED/INTERESTED WITNESSES:
11. It is a settled legal proposition that the evidence of closely
related witnesses is required to be carefully scrutinised and
appreciated before any conclusion is made to rest upon it, regarding
the convict/accused in a given case. Thus, the evidence cannot be
disbelieved merely on the ground that the witnesses are related to
each other or to the deceased. In case the evidence has a ring of
truth to it, is cogent, credible and trustworthy, it can, and
certainly should, be relied upon.
(Vide: Bhagalool Lodh & Anr. v. State of U.P., AIR 2011 SC 2292; and
Dhari & Ors. v. State of U. P., AIR 2013 SC 308).
12. In State of Rajasthan v. Smt. Kalki & Anr. AIR 1981 SC 1390,
this Court held:
“5A. As mentioned above the High Court has declined to rely on
the evidence of P.W. 1 on two grounds: (1) she was a "highly
interested" witness because she "is the wife of the
deceased"……For, in the circumstances of the case, she was the
only and most natural witness; she was the only person present
in the hut with the deceased at the time of the occurrence, and
the only person who saw the occurrence. True it is she is the
wife of the deceased; but she cannot be called an 'interested'
witness. She is related to the deceased. 'Related' is not
equivalent to 'interested. A witness may be called 'interested'
only when he or she derives some benefit from the result of a
litigation; in the decree in a civil case, or in seeing an
accused person punished. A witness who is a natural one and is
the only possible eye witness in the circumstances of a case
cannot be said to be 'interested'. In the instant case P.W.1 had
no interest in protecting the real culprit, and falsely
implicating the respondents.”
(Emphasis added)
(See also: Chakali Maddilety & Ors. v. State of A. P., AIR 2010 SC
3473).
13. In Sachchey Lal Tiwari v. State of U.P., AIR 2004 SC 5039,
while dealing with the case this Court held:
“7. …..Murders are not committed with previous notice to
witnesses; soliciting their presence. If murder is committed in
a dwelling house, the inmates of the house are natural
witnesses. If murder is committed in a street, only passers-by
will be witnesses. Their evidence cannot be brushed aside or
viewed with suspicion on the ground that they are mere 'chance
witnesses'. The expression 'chance witness' is borrowed from
countries where every man's home is considered his castle and
everyone must have an explanation for his presence elsewhere or
in another man's castle. It is quite unsuitable an expression in
a country where people are less formal and more casual, at any
rate in the matter explaining their presence.”
14. In view of the above, it can safely be held that natural
witnesses may not be labelled as interested witnesses. Interested
witnesses are those who want to derive some benefit out of the
litigation/case. In case the circumstances reveal that a witness was
present on the scene of the occurrence and had witnessed the crime,
his deposition cannot be discarded merely on the ground of being
closely related to the victim/deceased.
DELAY IN LODGING FIR AND ITS CONTENTS:
15. The case of the prosecution cannot be rejected solely on the
ground of delay in lodging the FIR. The court has to examine the
explanation furnished by the prosecution for explaining the delay.
There may be various circumstances particularly the number of victims,
atmosphere prevailing at the scene of incidence, the complainant may
be scared and fearing the action against him in pursuance of the
incident that has taken place. If the prosecution explains the delay,
the court should not reject the case of the prosecution solely on this
ground. Therefore, the entire incident as narrated by the witnesses
has to be construed and examined to decide whether there was an
unreasonable and unexplained delay which goes to the root of the case
of the prosecution and even if there is some unexplained delay, the
court has to take into consideration whether it can be termed as
abnormal.
(Vide: P. Venkataswarlu v. State of A.P., AIR 2003 SC 574; and State
of U.P. v. Munesh, AIR 2013 SC 147).
16. It is also a settled legal proposition that merely not
mentioning all the names of all the accused or their overt acts
elaborately or details of injuries said to have been suffered, could
not render the FIR vague or unreliable. The FIR is not an
encyclopaedia of all the facts. More so, it is quite natural that all
the names and details may not be given in the FIR, where a large
number of accused are involved.
NON-CROSS EXAMINATION OF A WITNESS ON A PARTICULAR ISSUE:
17. This Court in Laxmibai (Dead) Thr. L.Rs. & Anr. v. Bhagwanthuva
(Dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 examined the effect of non-
cross examination of witness on a particular fact/circumstance and
held as under:
“31. Furthermore, there cannot be any dispute with respect to
the settled legal proposition, that if a party wishes to raise
any doubt as regards the correctness of the statement of a
witness, the said witness must be given an opportunity to
explain his statement by drawing his attention to that part of
it, which has been objected to by the other party, as being
untrue. Without this, it is not possible to impeach his
credibility. Such a law has been advanced in view of the
statutory provisions enshrined in Section 138 of the Evidence
Act, 1872, which enable the opposite party to cross-examine a
witness as regards information tendered in evidence by him
during his initial examination in chief, and the scope of this
provision stands enlarged by Section 146 of the Evidence Act,
which permits a witness to be questioned, inter-alia, in order
to test his veracity. Thereafter, the unchallenged part of his
evidence is to be relied upon, for the reason that it is
impossible for the witness to explain or elaborate upon any
doubts as regards the same, in the absence of questions put to
him with respect to the circumstances which indicate that the
version of events provided by him, is not fit to be believed,
and the witness himself, is unworthy of credit. Thus, if a party
intends to impeach a witness, he must provide adequate
opportunity to the witness in the witness box, to give a full
and proper explanation. The same is essential to ensure fair
play and fairness in dealing with witnesses.”
(Emphasis supplied)
(See also: Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181; and
Gian Chand & Ors. v. State of Haryana, JT 2013 (10) SC 515).
18. Thus, it becomes crystal clear that the defence cannot rely on
nor can the court base its finding on a particular fact or issue on
which the witness has not made any statement in his examination-in-
chief and the defence has not cross examined him on the said aspect of
the matter.
19. The case is thus, required to be examined with reference to the
aforesaid legal propositions.
Y. Eswara Reddy (PW.1) submitted the complaint stating that they
were working in their respective fields in the morning, and had gone
to the neighbouring field after hearing the hue and cry and found that
one Rayapati Narayana Reddy had died due to electrocution. When they
returned and began to work in their field, the accused persons came
there armed with sticks, knives, bombs and sickles and some of them
were whistling war cries. Y. Ramachandra Reddy (deceased) and his
brother Balagangi Reddy also came there. The accused trespassed in
their field and chased the deceased who escaped on his cycle. A2
hurled a bomb at Y. Ramachandra Reddy (deceased) which hit him on the
legs and he fell down from the cycle. A1 hurled a bomb which fell on
the head of Y. Ramachandra Reddy (deceased) and A3, A4 and A5 also
hurled bombs which fell in close proximity of Y. Ramachandra Reddy
(deceased). A6 hacked Y. Ramachandra Reddy (deceased) with a hunting
sickle on his head. The witness apprehended danger to his life and
ran away and hid in the bushes. When he returned he did not find any
person at the scene of occurrence. He came to the village at 10.30
A.M. The police took him into custody and took him to the
agricultural field where Rayapati Narayana Reddy had died as the
police suspected him to be involved in his murder. He wanted to lodge
a complaint regarding the death of his brother, however, as the police
was involved in settling down the tension in the village, he was told
that it would be registered after some time. He deposed that he was
totally illiterate and was asked by the police to get the complaint
written by somebody. He submitted it later at about 1.00 P.M.,
though, it was shown at 3.00 P.M. He had also disclosed that the two
groups belonged to different political parties and there was rivalry
between them.
20. The deposition of Y. Gangadhar Reddy (PW.2), the nephew of Y.
Ramachandra Reddy (deceased), corroborated the evidence of Y. Eswara
Reddy (PW.1) regarding the death of Rayapati Narayana Reddy who had
died due to electrocution. They came back to their field and started
working. The accused persons came fully armed with sticks, knives,
bombs and sickles and some of them were whistling war cries. Y.
Balagangi Reddy ran towards Railway Gate. Narayanamma and Y.
Gangabhavani (PW.3) followed him. Accused A7 to A13 chased Balagangi
Reddy. Apprehending danger to his life, Y. Ramachandra Reddy escaped
on his cycle. A1 to A6 chased him. A2 threw a bomb which hit Y.
Ramachandra Reddy (deceased) on his legs. He fell down from the cycle.
A1 hurled another bomb which hit him on his head and he suffered a
fracture. A3 to A5 also hurled bombs but the same fell in his close
proximity. A6 was holding a sickle with which he hacked the head of
deceased.
21. Y. Gangabhavani (PW.3) widow of Y. Ramachandra Reddy (deceased),
duly corroborated the evidence of Y. Eswara Reddy (PW.1) and Y.
Gangadhar Reddy (PW.2) by narrating the incident in the same manner.
She also deposed about how her husband fell down from the cycle after
being hit by the bomb which was hurled by A2. Bomb hurled by A1 hit
him on his head, which caused fracture on the head of deceased. A3 to
A5 hurled bombs which exploded by the side of her husband. A6 hacked
on the left side of the head of her husband with a hunting sickle. She
herself could not muster courage to come forward to save her husband
rather, she hid behind the bushes and came out only after the police
arrived. She identified the clothes of her husband and other articles
that belonged to him.
22. Dr. Y. Karunasree (PW.6) conducted the post-mortem examination,
who deposed that she found on the body of Y. Ramachandra Reddy, the
following injuries:
?External Injuries:
“1) Crushed lacerated extensive injury involving bones muscles,
vessels, like soft tissues (including brain matter) parts of
skull and right side of the face. Hairy part of the scalp
including upper part of the cranium, both eye balls, nose, upper
jaw, brain matter blown off. Blackening of the injured parts and
surrounding tissues present. Clotting present over wound edges.
2) Incised injury 3x2 cms into bone deep size present over left
cheek extended and ended into injury No.1.
3) Crushed lacerated injury involving left eye ball, nose, major
part of the upper lip and sparing the lower lip.
4) Multiple various sized splinter injuries present over right
side of the chest and upper abdominal region with blackening
surrounding tissues. Clotting present over the wound.
?
?5) Multiple various sized small contusions present over right
side back, left axillary's region, left waist region, left fore
arm and upper arm and front of the left knee joint.
6) Multiple various sized spinster injuries with blackening of
surrounding tissues present over front of the right upper limb,
front and back of the right thigh and back of left thigh.”
She opined that deceased appeared to have died of shock due to
fracture of skull bones and lacerations of brain matter. In her
opinion, death occurred 12 to 14 hours prior to her examination. In
her cross-examination she deposed that:
? “….Injury No.2 in EX.P-4 is possible by sharp edged weapon
(Addl. P.P. shown too hunting sickles to the witness). The
injury No.2 is possible with hunting sickles shown to me
Blackening mentioned in the Injury No.4 due to explosion bomb.
Injury NO.5 may be possible by falling on the ground. Injury
NO.6 is also possible with explosion of bomb…..”
23. M. Pratap Naidu (PW.7) was a panch witness in the inquest of the
dead body of Y. Ramachandra Reddy (deceased). D. Khader Basha, V.A.O.,
(PW.8) was taken by the police to the place of the occurrence. There
he found some bombs in a bucket and he signed some documents regarding
the recovery of the same. A1, A2 and A7 were taken in the police
custody in his presence. Some hunting sickles and other articles were
also recovered from the accused.
24. S.V. Ramana, C.I. (PW.9) is the police officer who received the
complaint. He deposed that he was posted at the concerned police
station as an S.I. He received vague information regarding the deaths
at Kodigandlapalli village. In view thereof, he left the police
station immediately at 9.40 A.M. and reached the place of occurrence.
Prior to his arrival, Inspector of Police, Mondapuram had already
reached to the scene of the offence. On the same day, he received a
written complaint at 3.00 P.M., on the basis of which, an FIR was
registered. In his cross-examination, he explained that when he
reached the place of occurrence, he asked the persons present there to
submit a complaint in writing but out of fear, nobody did the same.
He further deposed that the distance between the village and police
station was 16 Kms. He reiterated on being asked again in the cross-
examination that he tried his level best to get a complaint from a
person not concerned with the faction, but no one came forward.
25. S.M. Basha, H.C. (PW.10) is the investigating officer, incharge
of the police station and he deposed that the case was registered
against the accused persons and he further pointed out that three
murders had taken place and most of the police personnel had gone
there and only one or two persons were left in the police station. He
also deposed that after getting the complaint, it was forwarded to the
Magistrate’s Court which was received therein on 5.12.1999 at 1.20
A.M.
26. So far as P. Sreenivasulu (DW.1) was concerned, though he was
examined by the defence, he did not depose with respect to anything
worth mentioning either in support of prosecution or of the defence.
27. In view of the aforesaid evidence, the trial court came to the
conclusion that there was some delay in lodging the FIR and came to
the conclusion that it was duly established from the evidence of PWs.1
to 3 that A1 to A6 committed the offence against Y. Ramachandra Reddy
(deceased) and their narration about the manner in which the offence
was committed, could not be doubted as the witnesses have identified
the accused persons and material objects particularly M.O.1 to M.O.6.
The FSL report (Ex.P-8) also dealt with pieces of thread, blood
stained tar road sample and control tar road sample contained in
M.Os.1, 2, 4 and 7. The aforesaid articles were the result of the
explosion of a mixture containing Potassium, Chlorate Chloride,
Arsenic, Sulphide and Sulphate etc. The court also dealt with other
material objects contained in M.Os.9 and 11 and held that the accused
had bombs that exploded and killed Y. Ramachandra Reddy (deceased)
and, therefore, they were convicted.
28. The High Court reappreciated the evidence and found fault with
the judgment of the trial Court and held that there were
contradictions in medical evidence and ocular evidence. As per the
evidence of Dr. Y. Karunasree (PW.6) who conducted the post-mortem
examination, there were incised injuries 3x2 Cms., bone deep over the
left cheek which was possible only by a sharp edged weapon. However,
she did not mention in her cross-examination which weapon could have
caused such an injury.
29. In view of the fact that there is sufficient evidence on record
that Y. Ramachandra Reddy (deceased) was hacked with a hunting sickle
and in such a case, A6 was convicted under Section 148 IPC, the want
of such an explanation is irrelevant. The cause of death as opined by
the medical evidence was shock due to fracture of skull bone and
lacerations to the brain matter and that in normal circumstances
injury Nos. 1 to 3 could cause death. The doctor specifically deposed
that Y. Ramachandra Reddy (deceased) died of a fracture of skull bones
i.e. injury no. 1. Dr. Y. Karunasree (PW.6) further explained that
she did not mention the type of weapon used for the reason that she
was not asked about the same. However, she had clearly deposed that
injury no. 2 could have been caused by a hunting sickle. This
evidence of Dr. Y. Karunasree (PW.6) stood fully corroborated by the
version given by PWs. 1 to 3 who have clearly deposed that A6 hacked
the deceased with hunting sickle on his head.
30. In view thereof, we cannot concur with the finding recorded by
the High Court on this aspect. The High Court has also taken note of
the fact that the overt act assigned to A6 has not been mentioned in
the FIR. The evidence on record clearly revealed that A1 to A6 came
armed with deadly weapons whistling war cries and chased Y.
Ramachandra Reddy (deceased). The trial court convicted A6 with the
aid of Section 149 IPC and not independently for the reason that the
trial court was not satisfied that A6 had hacked the deceased. D.
Khader Basha, V.A.O., (PW.8), who was the witness to the recoveries,
deposed that seizure of hunting sickle etc. was made at the disclosure
statement of the accused and he had signed the recovery memos for the
same. Thus, the observations made by the High Court in this regard
cannot be approved.
31. The High Court erroneously observed that the eye-witnesses did
not speak of the explosion of bombs by certain accused and, therefore,
their presence at the place of occurrence was doubted and they could
also not have seen the incident because of smoke from the explosion.
Such a finding was totally unwarranted, uncalled for and is perverse
being based on no evidence. Not a single question had been put to the
eye-witnesses in this respect and, therefore, there is nothing on
record to show that their visibility was impaired due to the emanating
of smoke and the said finding recorded by the High Court could be
simply termed as illogical. The witnesses deposed that A3 to A5 also
hurled the bombs which had fallen in close vicinity of the body of Y.
Ramachandra Reddy (deceased) though they did not hit him. It was
specifically mentioned that bombs hurled by A1 and A2 had hit him,
therefore, it is clear that there is no discrepancy in the testimony
of the eye-witnesses with respect to the overt acts of the accused.
More so, the High Court doubted the version given by Y. Eswara Reddy
(PW.1) that out of fear he hid himself behind the bushes and returned
after some time and when he came back there, he did not find any
person, though, in his cross-examination, he explained that about two
hundred persons gathered at the place of occurrence after the accused
had left the place. The evidence is to be examined considering the
tension prevailing at the place of occurrence. It is natural that in
such a fact-situation every person would feel the apprehension of
danger to his life and may run away. There may be some discrepancy in
his evidence in cross-examination but it has to be examined while
taking into consideration the evidence on record as a whole. As he
explained the gathering of a crowd consisting of approximately 200
persons, may have been at a later point of time. Therefore, merely on
the basis of such a statement his presence could not be doubted and
his version could not be discarded.
32. So far as the delay in lodging of FIR is concerned, it has to be
considered in light of the prevailing circumstances on that fateful
day when two persons were murdered and third died of electrocution.
The incident occurred in a faction ridden village having only 80
houses. The accused persons used bombs etc. for killing two persons.
The police arrived at 10 O’clock in the morning in the village. Y.
Eswara Reddy (PW.1) was taken into custody suspecting his involvement
in the murder of Rayapati Narayana Reddy who died due to
electrocution. Therefore, in such a fact-situation, such adverse
inference could not have been drawn and testimony of Y. Eswara Reddy
(PW.1), who had submitted the FIR, since he was illiterate and, a
rustic villager and did not know the niceties of law, could not be
doubted. When he lodged an oral complaint, he was asked to get it
written by somebody and then present it for lodging the FIR. The
police officials made it clear in their cross-examination that they
had asked persons present at the place of occurrence to give a
complaint in regard to the incident twice, but nobody came forward to
give it. In view thereof, we do not think that a person who had lost
two of his family members and had been suspected of being involved in
the murder of Rayapati Narayana Reddy who died due to electrocution
alongwith the fact that no other person was willing to submit a
complaint, the delay of 6 hours, could be fatal, particularly in view
of depositions of the eye-witnesses. Thus, the delay has been fully
explained by the prosecution and there was no occasion for the High
Court to take it to be fatal to the case of the prosecution.
33. There could be no reason for the eye-witnesses i.e. PWs 1 to 3,
who had lost two of their family members, to falsely implicate the
respondents and spare the real assailants.
34. In view of the above, the findings recorded by the High Court
are liable to be set aside being perverse. The appeals succeed and are
allowed. The judgment and order of the High Court dated 13.2.2007
passed in Crl.Appeal No. 41 of 2005 is set aside, and judgment and
order of the trial court dated 22.12.2004 passed in Sessions Case No.
374/2000 is restored. The respondents are directed to surrender within
a period of 4 weeks from today to serve out the remaining sentence,
failing which the learned Additional Sessions Judge, Kadapa, is
requested to take them into custody and send them to jail to serve
their left over sentences. A copy of this judgment be sent to the said
court for information and compliance.
……..…………..…………J.
(Dr. B.S. CHAUHAN)
………..……………..……J.
(S.A. BOBDE)
New Delhi,
September 4, 2013
