Full Judgment Text
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CASE NO.:
Appeal (crl.) 1097 of 2006
PETITIONER:
Bathula Nagamalleswara Rao & Ors
RESPONDENT:
State rep. by Public Prosecutor
DATE OF JUDGMENT: 22/04/2008
BENCH:
P. P. Naolekar & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
REPORTABLE
CRIMINAL APPEAL NO. 1097 OF 2006
Lokeshwar Singh Panta, J.
1. Bathula Nagamalleswara Rao, Bathula Laxminarayana,
Bathula Seshaiah, Narne Subba Rao and Morakonda Bapa
Rao have filed this appeal against the judgment and order
dated 10th April, 2006 passed by the Division Bench of the
High Court of Judicature, Andhra Pradesh at Hyderabad in
Criminal Appeal No. 942 of 2004 confirming their conviction
and sentences imposed upon them by the trial court.
2. In all, 12 accused, namely, B. Nagamalleswara Rao (A-
1), B. Laxminarayana, (A-2), B. Gopalan, (A-3), B. Subba Rao
(A-4), B. Sreenu (A-5), B. Venkateswara Rao (A-6),
Jonnalgadda Ramu (A-7), Jonnalagadda Suresh (A-8), B
Kotaiah (A-9), B. Seshaiah (A-10), Narne Subba Rao (A-11) and
Morakonda Baparao (A-12) were charged and tried by
Additional Sessions Judge, Guntur, for offences under
Sections 148/449/302/302 r/w 149/302 /302 r/w 149 and
427 of the Indian Penal Code [for short ’IPC’] for committing
murder of two persons namely, Marchavarapu Venkatarao
(deceased no.1) and Thalluri Sambasiva Rao (deceased No.2)
in village Uddandarayunipalem.
3. The VII Additional Sessions Judge, Guntur, by
judgment dated 31st May, 2004 convicted all the accused
(except A-3) and sentenced them as under:-
Accused
Nos.
Conviction by Trial Court
Sentence Imposed by Trial Court
A-1
U/s. 302 r/w. 149, 302, 148 & 449
Life Imprisonment
A-2
302 r/w. 149, 302, 148 & 449
Life Imprisonment
A-4
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302 r/w. 149 & 449
Life Imprisonment
A-5
302 r/w 149 & 449
Life Imprisonment
A-6
302 r/w 149, 302 & 449
Life Imprisonment
A-7
302 r/w 149 & 449
Life Imprisonment
A-8
302 r/w 149 & 449
Life Imprisonment
A-9
302 r/w 149 & 449
Life Imprisonment
A-10
302 r/w 149, 302 & 449
Life Imprisonment
A-11
302 r/w 149, 302 & 449
Life Imprisonment
A-12
302 r/w 149, 302 & 449
Life Imprisonment
4. The accused were also imposed a fine of Rs. 500/- each
on each count and in default of payment of fine, to suffer S.I.
for six months and they were also sentenced to suffer R.I. for a
period of five years and to pay a fine of Rs. 1000/- each for the
offence under Section 449 of the IPC and in default of payment
of fine to undergo S.I. for a period of six months. All the
substantive sentences were ordered to run concurrently.
5. The trial court, however, acquitted A-4, A-5, A-7 to A-9
for the offences under Section 427, IPC. A-3 died during the
pendency of the trial and trial against him, accordingly, stood
abated.
6. Brief facts necessary for disposal of this appeal are as
follows:-
All the accused, deceased no.1, deceased no.2 and other
material witnesses are all residents of village
Uddandarayunipalem within the jurisdiction of Thulluru Police
Station. In the last panchayat elections held in the village
area, deceased No. 1 was elected as Sarpanch of the village as
a candidate of Telugu Desam Party by defeating his rival
Congress Party candidate namely, Puli Babu who had the
support of Bathula Venkateswara Rao (A-6). It was alleged
that one Tadikoda Venkateswara Rao s/o Pedalakshmi
Narayana approached deceased No. 1 for settlement of the
pending land dispute between him and A-6. Deceased No. 1
alleged to have advised both the parties to approach the village
elders and if their dispute still remained unsettled, then they
could approach the competent court of law. It was alleged
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that A-6 bore grudge against deceased no.1 as the latter was
trying to support Tadikolana Venkateswara Rao in the said
matter.
7. On the day of occurrence i.e. 18th July, 1996 around 6:30
p.m. Rama Mohan Rao, son of A-6 was murdered at the
outskirts of the same village. The accused persons believed
that Tadikolana Venkateswara Rao might have murdered the
son of A-6. On the same day at about 7:30 p.m. M.
Shakuntala (PW-1), wife of deceased no.1, was standing on the
verandah of their house, while deceased no. 1 and deceased
no.2 were chit-chatting with M. Srihari (PW-2) and B.
Sathyanarayana (PW-3) - both friends of deceased no.1, in
front of the house of deceased no.1, they noticed a group of
men armed with dangerous weapons moving towards the
house of deceased no.1. On the advice of PW-3, deceased no.1
and his wife PW-1 rushed inside the house and bolted its door
from inside. In the meanwhile, all the twelve accused
trespassed into the house and committed mischief by breaking
the telephone and other valuable articles lying in the house of
deceased No. 1 and in the process, the accused noticed
deceased no.1 concealing himself in the bedroom. The
accused attacked deceased no. 1 indiscriminately with lethal
weapons. It was the case of the prosecution that A-3 stabbed
deceased No.1 with a crow bar thrice below stomach and in
left side of his abdomen. A-1 assaulted deceased no.1 with a
knife on both sides of the neck and chest. A-2 hacked on the
right upper arm and A-3 cut the right wrist of deceased no.1
with a crow bar. Thereafter A-1 to A-3 continued inflicting
injuries on other parts of the body of deceased no.1 in the
presence of his wife PW-1 and as a result of severe injuries,
Venkateswara Rao deceased No.1 died at the spot. It was
alleged that the remaining accused chased Thalluri Sambasiva
Rao deceased No. 2 who tried to escape from the scene of
occurrence when A-6, A-10, A-11 and A-12 attacked deceased
no.2 with axe, spears and crow bars. As a result of multiple
injuries suffered by deceased No. 2 upon his body, he died in
the bathroom of the house of deceased No.1. The whole
incident was witnessed by P.Ws. 1, 2 and 3. On seeing the
accused persons mercilessly attacking and assaulting
deceased No. 1 and deceased No. 2 with dangerous weapons,
both PWs-2 and 3 got frightened and they escaped from the
scene of occurrence by jumping over the wall of the house. A-
4, A-5, A-7, A-8 and A-9 in the process damaged the doors,
window glass panes of the house, motorcycle, television, etc. of
deceased no.1. All the accused thereafter left the scene of
occurrence.
8. On receiving the information about the incident, P.
Maqbool Khan (PW-11) Sub-Inspector of Thulluru Police
Station, rushed to the scene of occurrence and noticed the
dead bodies of deceased No. 1 and deceased No. 2 lying in the
house of deceased No.1. He recorded the statement of P.W. 1
at about 9:00 p.m (Exhibit P-1). On the basis of Exhibit P.1,
PW-8 \026 Head Cosntable P. Mallikarjuna Rao of Thulluru Police
Station registered First Information Report (F.I.R.) in Crime
No. 63/1996 under Exhibit P-5. Thereafter, K. Babu Rao (PW-
13), Circle Inspector of Police, took up investigation and
conducted Panchnama (Exhibit P-2) of the scene of occurrence
in the presence of B. Subba Rao (PW-5), held inquest over the
dead bodies of both the deceased in the presence of M. Subba
Rao (PW-6) and Puli Sambayya (PW-7) and prepared a joint
Inquest Report (Exhibit P-4). Then, P.W. 13 got the scene of
occurrence photographed through J. Rambabu (PW-9). On
receipt of requisition from the Police on 19th July, 1996, Dr. K.
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Mahipal Reddy (PW-12) held autopsy over the dead bodies of
deceased nos. 1 and 2 and issued post mortem certificates
[Exhibits P9 and P10[ respectively. He opined that both the
deceased appeared to have died due to multiple injuries. On
6th August, 1996 at about 8:00 a.m. P.W. 11 arrested A-7, A-8
and A-9. On 23rd August, 1996, he arrested A-2 and A-11
whereas A-1, A-3, A-4, A-6 and A-10 were arrested by PW-11
on 8th September, 1996.
9. After completion of the investigation and after receipt of
the post mortem report, charge sheet was filed against the
accused persons in the Court of Additional Munsif Magistrate,
Mangalagiri. Additional Munsif Magistrate committed trial to
the learned Sessions Judge, Guntur who, in turn, made over
the trial of the case to the court of 2nd Additional Sessions
Judge, Guntur. The learned Additional Sessions Judge,
Guntur framed charges under Section 148 IPC against A-1, A-
2, A-4 to A-12 and under Section 449 of IPC against A-6, A-10
to A-12 and under Section 302 read with Section 149 IPC
against A-4, A-5, A-7 to A-9. All the accused persons pleaded
not guilty to the charges and claimed to be tried.
Subsequently, the trial of the case was transferred to VII
Additional Sessions Judge, Guntur.
10. The prosecution in support of its case examined as many
as 13 witnesses. In their statements recorded under Section
313 of the Code of Criminal Procedure [for short ’Cr.P.C’], the
accused denied their involvement in the crime and pleaded
false implication on suspension. In defence, the accused have
examined Thummala Veeraiah Chowdary (D.W.1), Machiraju
Koti Surya Prakasharao (D.W. 2), Yethirajula Srinivasarao
(D.W.3) and Garji Rambabu (D.W. 4). The trial court, on
scrutiny of the evidence on record, held the accused guilty of
the aforesaid offences and, accordingly, convicted and
sentenced them.
11. Being aggrieved, the accused filed the appeal under
Section 374 Cr.P.C. before the High Court and the High Court,
confirmed the conviction and sentence imposed upon A-1, A-2,
A-10, A-11 and A-12 by the trial court. The High Court,
however, has acquitted A-4, A-5, A-6, A-7, A-8 and A-9 of all
the charges levelled against them. Now, A-1, A-2, A-10, A-11
and A-12 are appellants before us in appeal.
12. We have heard the learned counsel for the parties and
with their assistance examined the judgment of the High Court
and re-appraised the entire material evidence placed on
record. Mr. P.S. Patwalia, learned senior Advocate appearing
on behalf of A-1, A-2, A-9, A-11 and A-12, assailed the
judgment of the High Court inter alia contending :-
(i) that the High Court erred in not considering the fact
that there is unconscionable delay of 16 hours in
sending the FIR (Ex. P5) to the Magistrate especially
when the Police had taken the statement of PW-1 at
7.30 p.m. itself regarding the commission of the
offences on the basis of which the FIR was recorded at
9.00 p.m. in the Police Station. According to him, the
unexplained delay in sending the FIR to the Magistrate
created a serious doubt about the correctness and
truthfulness of the prosecution case. He emphasized
that the FIR on the face of it indicates that the same
was prepared after due deliberation and consultation
between PW-1, and other interested witnesses in
connivance of the police. He submitted that if FIR was
in existence at 11:00 p.m. on 18.07.1996 in which the
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names of A-8 and A-9 were mentioned as assailants,
they could have been arrested by the Investigating
Officer on the spot itself as the evidence shows that
they were present at the scene of occurrence when
police reached the place and this circumstance would
also prove that the FIR was a tainted, anti-timed and
anti-dated document prepared by the police around
3:00 p.m. on 19.07.1996.
(ii) that the testimony of PW-1, wife of deceased No.1 is
wholly unreliable, unbelievable and inherently
improbable and has been wrongly believed by the
Courts below. If she was shocked into silence at the
time of incident of murder it could not have been
possible for her in the normal course to have given
precise details of the injuries being inflicted by each of
the accused with a particular weapon on different
parts of the body of deceased No. 1. According to the
learned counsel, PW -1 is not an eye witness to the
incident of murder and she has been projected later on
by the Investigating Officer after receipt of the injuries
statements from the doctor who conducted the post
mortem over the dead bodies of both the deceased,
otherwise PW-1 could not have accurately detailed the
precise injuries on the body of deceased No.1 in her
statement (Ex. P1)
(iii) that the High Court has disbelieved the testimony of
PW-3 in regard to the presence of A-4 to A-9 at the
scene of occurrence and their participation in the
commission of crime and, therefore, they were given
benefit of doubt. The conviction of A-1, A-2, A-10, A-
11 and A-12 relying upon the same set of evidence of
P.W. 3 being one of the accused in FIR No. 64/1996
for the murder of A-6, therefore, is not proper and
sustainable as PW-3 is positively an interested witness
to frame the appellants in a false case.
13. Mr. R. Sundaravardhan, learned senior counsel for the
respondent-State on the other hand contended that the
reasons given by the trial court as well as by the High Court
for recording the order of conviction of the appellants are
based upon proper appreciation of evidence led by the
prosecution in the case. According to the learned counsel, the
courts below have accepted the explanation of the prosecution
for causing delay in submitting the FIR to the Magistrate and
therefore, this Court shall not be obliged to disturb the finding
of facts recorded by Courts below. He then submitted that
merely because P.W. 1 and P.W. 3 the two eye witnesses are
relative and friend respectively of deceased no.1, their
testimony cannot be disbelieved and discarded on this premise
only as their evidence corroborated by other evidence is
cogent, clear and satisfactory with the hypothesis of the guilt
of the appellants and this Court should be slow to interfere in
the well-reasoned and well-merited judgments of the courts
below.
14. We have given our anxious consideration to the rival
contentions of the learned counsel for the parties. The
arguments put forward by Mr. Patwalia although are extremely
attractive, yet we find ourselves unable to agree with the same.
It is no doubt true that FIR (Ex. P5) came to be recorded at
11:00 a.m. on 18.07.1996 in the Police Station by Head
Constable P. Mallikajunarao (PW-8), who was posted at the
relevant time at Police Station, Thulluru. The incident of
murder of deceased No. 1 and deceased No. 2 took place at
7:30 p.m. on 18.07.1996 as per Complaint (Ex. P1) made by
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PW-1 to Sub-Inspector Maqbool Khan (PW-11), which was sent
to Police Station, Thulluru, through PC No.2896 for
registration of the FIR. It has come in the cross-examination
of PW-8 that the distance between Police Station, Thulluru,
and Mangalagiri where the Magistrate holds court is about 20
kms. PW-8 categorically stated that FIR (Ex. P5) was
registered by him at 11:00 p.m. on 18.07.1996 and even if the
copy of the FIR was to be sent to the Magistrate during the
mid-night, it was not possible for the Police Constable to take
the FIR and deliver the same to the Magistrate at Mangalagiri
on the intervening night of 18/19.07.1996 as there was no
bus service available during the night time between the two
places. The trial court in its judgment observed that the FIR
was received by the Magistrate at 4.00 p.m. on 19.07.1996.
The trial court has noticed but not accepted the contention of
the learned counsel for the accused persons that in these
circumstances the statement of PW-1 (Ex. P1) might have been
recorded at 3.00 p.m. on 19.07.1996 at village
Uddandayunipalem and from the village itself the statement
might have been sent to Mangalagiri in a police vehicle and
therefore, the same was received by the Magistrate at 4.00
p.m. on 19.07.1996. We have independently scrutinized the
evidence of PW-1 and PW-11, the Investigating Officer. It is
their clear and consistent testimony that statement (Ex. P1)
was recorded at 9.00 p.m. on the night of 18.07.1996 after the
incident of murder had occurred at 7.30 p.m. It is undisputed
fact that one Ramamohanarao, son of A-6, was murdered on
the same evening at about 6.00 or 6.30 p.m. at the outskirts of
village Uddandayunipalem. It is the evidence of PW-11, Sub-
Inspector of Police, that about 7.15 p.m. M. Venkatarao
informed him that his rival group of men armed with deadly
weapons was moving towards their village and on receiving the
information he along with other police personnel had
immediately proceeded to village Uddandayunipalem in a
private jeep for maintaining law and order. PW, Head
Constable, in cross-examination, corroborated the version of
PW, Sub-Inspector of Police, that on 18.07.1996 around 7.15
p.m. on receipt of the information in regard to some incident of
violence in the village, P.W. 11 along with five staff members
left the Police Station for maintaining law and order in the
village. PW-8 sent FIR (Ex. P5) to the Magistrate through PC
No.2896 who brought statement of PW-1 [Ex. P-1] at 11:00
p.m. to the Police Station. PW-13, Circle Inspector of Police,
stated that on the mid night of 18/19.07.1996 at about 00.15
hours he received a copy of express FIR through PC No.2896
disclosing the incidents of murder of three persons in village
Uddandayunipalem. The endorsement made on FIR (Ex. P5)
by the Magistrate on its bare perusal would reveal that he
received a copy of the F.I.R. through PC No.1293 and not
through PC No.2896 as deposed by P.W. 8. It appears from
the record that PC No.2896 handed over a copy of express FIR
to PW-13, Circle Inspector of Police, at village
Uddandayunipalem at 00.15 hours on the intervening night of
18/19.07.1996 and then constable PC No.1293 might have
been deputed to deliver the FIR (Ex. P5) to the Magistrate at
Mangalagiri. The trial court in its judgment observed that
keeping in view the serious and tense situation in the village
because of the murder of three persons on the same evening,
the entire staff of Police Station was deputed to maintain law
and order problem there. Out of the victims, one was the son
of A-6, ex-Sarpanch of the village, whereas deceased No.1 was
the sitting Sarpanch of the same village. Taking these
circumstances into consideration, the trial court held that
there was no delay in lodging the FIR with the police and delay
in sending a copy of the FIR to the Magistrate was a result of
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shortage of police personnel who could not be deputed to
deliver the same to the Magistrate during the night of
18.07.1996 or in the early hours of 19.07.1996. The High
Court has re-examined the evidence on record and held that
the delay in sending FIR to the Magistrate was not deliberate
or intentional, but because of some technical errors committed
by the Investigating Officer during the course of investigation
of the case which could not be found fatal to the case of the
prosecution, especially when the Investigation Officer was not
cross-examined on this point.
15. Mr. Patwalia, in support of the submission that the FIR
(Ex. P5) was anti-timed and anti-dated and delay of 16 hours
in sending the FIR to the Magistrate would cast a serious
doubt of its correctness, has relied upon the decisions of this
Court in Thulia Kali v. The State of Tamil Nadu [(1972) 3 SCC
393]; Arjun Marik & Ors. v. State of Bihar [(1994) Supp. (2)
SCC 372]; Meharaj Singh (L/Nk.) v. State of U. P. [(1994) 5
SCC 188]; Thanedar Singh v. State of M. P. [(2002) 1 SCC 487]
and Kunju Muhammed Alias Khumani & Anr. v. State of Kerala
[(2004) 9 SCC 193].
16. It is not in dispute that this Court in series of
judgments has repeatedly and consistently emphasized that
First Information Report in a criminal case is an extremely
vital and valuable piece of evidence for the purpose of
corroborating the oral evidence adduced at the time of trial.
The importance of the report can hardly be over- estimated
from the standpoint of the accused. The object of insisting
upon prompt lodging of the report to the police in respect of
commission of an offence is to obtain early information
regarding the circumstances in which the crime was
committed, the names of the actual culprits and the part
played by them as well as the names of the eye-witnesses
present at the scene of occurrence and requirement of sending
the FIR to the Magistrate forthwith is to enable the Magistrate
concerned to have a watch on the progress of the
investigation. In Thulia Kali v. State of Tamil Nadu (supra), it
is held that delay in lodging the First Information Report often
results in embellishment which is a creature of after-thought.
On account of delay the report not only gets benefits of the
advantage of spontaneity, danger creeps in of the introduction
of coloured version, exaggerated account of connected story as
a result of deliberation and consultation. It is held that in
order to avoid all criticisms of the defence, it is therefore
essential that the delay in lodging of the First Information
Report should be satisfactorily explained.
17. In Arjun Marik & Ors. v. State of Bihar (supra), this Court
held that Section 157 of Cr.P.C. mandates that if, from
information received or otherwise, an officer in charge of Police
Station has reason to suspect the commission of an offence
which he is empowered under Section 156 to investigate, he
shall forthwith send a report of the same to the Magistrate
empowered to take cognizance of such offence upon a police
report. Section 157, Cr.P.C. thus, in other words, directs the
sending of the report forthwith, i.e. without any delay and
immediately. Further, Section 159 Cr. P.C. envisages that on
receiving such report, the Magistrate may direct an
investigation or, if he thinks fit, to proceed at once or depute
any other Magistrate subordinate to him to proceed to hold a
preliminary inquiry into the case in the manner provided in
the Code of Criminal Procedure. The forwarding of the
occurrence report is indispensable and absolute and it has to
be forwarded with earliest despatch which intention is implicit
with the use of the word "forthwith" occurring in Section 157,
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which means promptly and without any undue delay. The
purpose and object is so obvious which is spelt out from the
combined reading of Sections 157 and 159 Cr.P.C. It has the
dual purpose, firstly to avoid the possibility of improvement in
the prosecution story and introduction of any distorted version
by deliberations and consultation and secondly to enable the
Magistrate concerned to have a watch on the progress of the
investigation.
18. In Meharaj Singh (L/Nk.) v. State of U. P. (supra), this
Court held that delay in sending special report to the
Magistrate or failure to send copy of the FIR to the Medical
Officer along with dead body for post mortem and absence of
its reference in inquest report can give rise to an inference that
the FIR had been anti-timed and had not been recorded till the
inquest proceedings were over at the spot by the Investigating
Officer.
19. Again in Thanedar Singh v. State of M. P. (supra), this
Court held on facts that failure of the prosecution to clear
doubt regarding the date and time of recording of the FIR and
delay in sending FIR to Magistrate cast a serious doubt on the
correctness of the FIR.
20. In Kunju Muhammed Alias Khumani & Anr. v. State of
Kerala [(2004) 9 SCC 193], this Court reiterated that the delay
in sending the FIR to the Magistrate without giving satisfactory
explanation creates a serious doubt about the prosecution
case. In that case it was found: (a) the statement of PW-1 that
the complaint was signed on the mid night of 3.11.1991; (b)
FIR reaching the Jurisdictional Magistrate more than 36 hours
after the incident in question though the court is situated in
the same town; (c) the evidence of the doctor as to the
presence of rigor mortis on the body of the deceased indicating
death must have occurred much earlier than 8.15 to 8.30 a.m.
on 03.11.191 and (d) recording in the inquest report (Ex. P6)
that the body of the deceased when examined was found to be
cold and frozen. In the circumstances noticed above, the
Court held that, delay of more than 36 hours in sending the
FIR to the Magistrate created a serious doubt about the
prosecution case and had found the accused persons entitled
for benefit of doubt.
21. We have earlier pointed out that in the present case
there was a delay of about 16 hours in sending the FIR (Ex.
P5) to the Magistrate, but the explanation as recorded by the
trial court that the majority of the police personnel were
deputed in village Uddandarayunipalem for maintaining the
law and order situation which was too tense in view of the
murder of three men of the village on the same evening, we do
not find any cogent and convincing reason for doubting the
correctness and truthfulness of the FIR which was promptly
lodged in the Police Station at 9:00 p.m. in relation to the
murder of deceased No.1 and deceased No.2 at about 7:30
p.m. The Investigating Officer in cross-examination denied the
suggestion of the defence that Ex. P1 was brought into
existence around 2:35 p.m. or 3:00 p.m. on the next day, i.e.
19.07.1996, after a good deal of consultations and
confabulations with the leaders of rival group of the accused
and particularly after observing the injuries on the dead body
of deceased No. 1. He categorically stated that he recorded the
statement (Ex. P1) made by PW-1 between 9:00 p.m. to 10:00
p.m. on 18.07.1996 and on completion thereof, the same was
sent through P.C. No. 2896 to the Police Station for
registration of the FIR and after registration on the same
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constable brought the copy of the FIR to the scene of
occurrence at about 12:00 mid night and thereafter PW-11
took up further investigation of the case. A suggestion of the
defence that his superiors also aided in fabrication of Ex. P1
and under their instructions he had not only anti-timed but
also anti-dated the FIR and planted witnesses and having
done so he deposed falsely against the accused persons, has
categorically been denied by him.
22. The evidence of PW-1 was attacked by A-1, A-2, A-3, A-
10, A-11 and A-12 on the ground that her presence at the
relevant time on the spot on the day of occurrence was
doubtful as in the morning she had gone to the house of her
daughter at Vijayawada and was summoned after the incident
of murder for making the statement (Ex.P1) on the basis of
which FIR came to be registered. We have independently
scrutinized the evidence of PW-1, wife of deceased No.1. It is
her clear and consistent evidence that on 18.07.1996 at about
7:30 p.m. while she was standing at the verandah of her house
and her husband along with Talluri Sambasivarao (deceased
No.2), M. Srihari (P.W. 2), B. Satyanarayana (P.W. 3) and some
more persons were chit-chatting in front of their house, she
saw about 40 persons armed with dangerous weapons rushing
to their house and on seeing them, P.W. 3 asked her and her
husband Venkatarao to conceal themselves inside the house
otherwise they would be killed by the rival group men.
According to her, A-1, A-2, A-4 to A-12 along with A-3 came to
the verandah of their house and after breaking open the doors,
they caused damage to the T.V. and other articles lying in the
rooms. A-3 was armed with crow-bar, A-1 was armed with
knife, A-2 was having an axe in his hand. They entered into
their bedroom through the bottom portion of the door. When
her husband was standing at the corner of the bedroom, she
requested A-1 to A-3 not to harm her husband. A-1 pulled her
aside and A-3 stabbed her husband thrice with the crow-bar.
A-2 assaulted him on the right arm. When her husband fell
down on the floor, A-1 to A-3 indiscriminately inflicted more
injuries on his body. Thereafter, her mother-in-law knocked
at the door of the house and on opening the door she was
informed by her mother-in-law that A-6, A-10, A-11 and A-12
had murdered Talluri Sambasivarao (deceased No.2) in their
bathroom with crow-bars and axes. The trial court as also the
High Court both have accepted the evidence of PW-1 in its
entirety without any suspicion and embellishment The
deceased No.1 sustained as many as 26 injuries on his body
as noticed by Dr. K. Mahipal Reddy (PW-12) in post mortem
certificate (Ex. P10). The cause of death of deceased No.1 in
the opinion of the doctor was due to multiple injuries
sustained by him with sharp-edged weapon. Ex. P1, which
was the earliest version of the incident of murder narrated by
PW-1 to the police would reveal that she had categorically
named A-1, A-2, A-3 (A-3 died during the pendency of the
trial), A-10, A-11 and A-12 as assailants who mercilessly
inflicted multiple injuries on almost every part of the body of
her husband with lethal weapons resulting in his death. The
evidence of PW-1 finds corroboration from the medical
evidence. Despite lengthy cross-examination, nothing has
been elicited to discredit and discard her testimony, which has
remained unshattered and consistent. A suggestion of the
defence that A-10 was unable to walk without assistance of
any person as he, at the relevant time, was aged about 70
years, has been denied by her. She categorically reasserted
that firstly A-1 to A-3 encircled her husband and then A-1
assaulted him thrice with knife, while A-2 assaulted him on
the right fore-arm with an axe and again A-1 and A-3 one after
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the other inflicted more severe injuries on the body of her
husband with the weapons they were holding in their hands.
A series of suggestions were put to her by the defence: (a) that
on the morning of the day of the incident of murder of her
husband she had gone to Vijayawada to look after her
daughter Vasavi who was sick, (b) she was not present in the
village and that about 10:00 p.m. or 11:00 p.m. she was called
from Vijayawada, (c) after due deliberation and consultation
among her well-wishers and relatives, she got complaint (Ex.
P1) fabricated at about 2 0’ clock in the intervening night of
18/19.07.1996, (d) the contents of Ex. P1 were not stated by
her and she only subscribed her signatures thereon and (e) the
police also contributed their role in fabricating her statement
(Ex. P1) have emphatically and categorically been denied by
her. She, however, admitted that A-6 is a leader of one group
in her village, but she denied that on account of ill-feelings
between two rival groups of the people in the village, a false
case was foisted against the appellants by her. She also
denied the further suggestion that none of the appellants was
responsible for causing death of her husband or the death of
Sambasivarao, deceased no.2.
23. The testimony of this witness has been corroborated by
PW-3, another eye-witness of the occurrence and PW-11, the
Investigating Officer. The presence of PW-3 on the scene of
murder has fully been established. It is the evidence of PW-3
that on 18.07.1996 at about 7.30 p.m. he along with PW-2,
deceased No.2 and few more people was present in the house
of deceased No. 1 and when they were chit-chatting in front of
the house, all the accused persons armed with crow-bars,
spears, axes and knives rushed to the house of deceased No.1
and on seeing them, he advised deceased No.1 and his wife
PW-1 to conceal themselves inside their house as he
apprehended some danger to the life of deceased No. 1. PW-1
and deceased No. 1 went inside their house and bolted the
door from inside. He saw that out of twelve accused persons
half of them had surrounded the house of deceased No.1 and
the remaining accused chased deceased No.2, who was
running to his house, which is at a distance of 10 yards from
the house of deceased No.1. He saw A-6, A-10, A-11 and A-12
breaking open the door of the bathroom of deceased No. 1
where they killed deceased No.2 with crow-bars, axes and
spears. In his presence, the police conducted inquest over the
dead body of both the deceased persons. The High Court
found that deceased No.2 sustained more than 22 injuries on
his body as noticed by doctor in post mortem certificate (Ex.
P9). According to the opinion of the doctor, the cause of death
of deceased No.2 was due to multiple injuries. The High Court
has given the details of the injuries sustained by both the
deceased at pages 8 to 14 of the judgment. We do not think it
necessary to reproduce the details of those injuries again in
this judgment for unnecessarily burdening the record as the
death of both the deceased due to the injuries sustained by
them on their bodies is not in dispute. PW-3 also stated that
inquest on the dead bodies of deceased No. 1 and deceased
No. 2 was conducted by the police in his presence. In spite of
lengthy cross-examination, his testimony has not been
shattered or impeached by the defence. A suggestion of the
defence that for the past four days from the date of recording
of his statement in the court, he was tutored to give evidence
against the accused persons has categorically been denied by
him. He has admitted that he was framed as an accused in
the murder of the son of A-6.
24. PW-2 in his deposition stated that at about 7.30 p.m.
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on 18.07.1996 he along with PW-3, deceased No.1, deceased
No.2 and some persons were chit-chatting in front of the
house of deceased No.1. PW-1, wife of deceased No.1, was
sitting on a cot in the verandah. At that time, a group of men
had gathered on the road side raising slogans near the house
of deceased No. 1. PW-3 requested deceased No. 1 and his
wife PW-1 to conceal themselves inside the house. They both
went inside the house and bolted the door of their house from
inside. On seeing the accused persons armed with dangerous
weapons, he along with PW-3 made good their escape from the
scene of occurrence by jumping over the northern side
compound wall of the house of deceased No.1. On coming to
know about the arrival of police, he went to the house of
deceased No.1 and found deceased No. 1 and deceased No.2
lying dead in a pool of blood. The inquest report of the dead
bodies of deceased No.1 and deceased No.2 was conducted
and prepared by the Investigating Officer in his presence.
25. The evidence of PWs-6 and 7 would go to show that they
were present on 19.07.1996 at about 3.00 a.m. when the
police conducted inquest on the dead body of deceased No.1
under Ex. P3 and on the same day at about 5.30 a.m., inquest
on the dead body of deceased No.2 was conducted under Ex.
P4. Both these witnesses are mediators. They stated that
deceased No.1 and deceased No.2 died as a result of fatal
injuries sustained by them. Both these witnesses have
categorically stated about the descriptive particulars of the
scene of occurrence at the house of deceased No. 1.
26. D. Sivanagendramma (PW-4) is the wife of deceased
No.2. It is her evidence that on receiving the information of
her husband’s death, she went to the house of deceased No.1
where she spotted her husband lying in a pool of blood in the
bathroom. Nothing substantial has been elicited from her
cross-examination by the defence to disbelieve and discredit
her evidence.
27. PW-11 is the Investigating Officer. It is his evidence
that on 18.07.1996 around 7:15 p.m. he was informed on
telephone by M. Venkatarao (deceased No. 1), the then
Sarpanch of village Uddandarayunipalayem that a group of
men raising slogans and carrying dangerous weapons in their
hands was moving towards his house with clear intention to
commit offence and requesting the police to come to the village
to defuse the tense situation. He, in turn, informed the
Inspector of Police, Amaravathi, through VHF and himself
alongwith staff members proceeded to the village to maintain
law and order problem. The Inspector of Police, Amaravathi,
later on came to the village. When he reached at the house of
M. Venkatarao, he found his dead body lying in a room and
also spotted the dead body of deceased No.2 in the bath room
of the house of deceased No.1. On receiving necessary
instructions from Inspector of Police, P.W. 11 recorded the
statement (Ex. P-1) of P.W. 1 at about 9.00 p.m. and obtained
her signatures thereon. He sent the said statement through
PC No.2896 to Police Station, Thulluru, and instructed PW-8,
who was in charge of Police Station, to register the case. He
handed over the investigation to the Inspector of Police. He
arrested some of the accused persons on different dates. On
examination of the evidence of this witness, it stands proved
that he read over the statement (Ex. P1) to PW-1, who
admitted the contents thereof to be correct.
28. The High Court, on re-examination and re-appraisal of
the evidence of PW-3, PW-11 and other evidence on record,
held that the presence of A-4 to A-9 on the scene of occurrence
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has not been proved by the prosecution by leading cogent,
satisfactory and convincing evidence to prove that the said
accused persons were the members of unlawful assembly and
shared common object with the other accused with an
intention to eliminate deceased No. 1 and deceased No.2. The
evidence of P.W. 10 the then SDPO, Guntur, who partly
conducted the investigation of the case, would prove that on
the day of incident of murder, A-5 attended to the work of
general laboratory of Water Treatment Unit of VTPS situated at
a distance of 40 kms. from the scene of occurrence. His
evidence would also disclose that A-5 was present in the
Thermal Power Station from 4.30 p.m. to 8.30 p.m. on the day
of occurrence which, according to the prosecution, took place
at about 7.30 p.m. In these circumstances, the possibility of
A-5 participating in the commission of the crime has been
rightly ruled out by the High Court. We find not an iota of
evidence on record to prove that A-7 and A-8 had shared the
common intention to eliminate deceased No.1 and deceased
No.2. Nothing has been brought on record to show that they
were inimical against deceased No.1 and deceased No.2 so as
to cause their death. The evidence against A-5 to A-9 was not
satisfactory and convincing to connect them both the
commission of the crime and, therefore, we have no hesitation
to accept the reasoning recorded and finding arrived at by the
High Court in acquitting A-4 to A-9 by giving them benefit of
doubt.
29. It is by now well-settled that mere relationship of the
witnesses cannot be the sole basis to discard or disbelieve
their evidence if it is otherwise found to be believable and
trustworthy. However, when the Court has to appreciate the
evidence of any interested witness it has to be very careful in
weighing their evidence. In other words, the evidence of an
interested witness requires greater care and caution while
scrutinizing his evidence. The Court has to address to itself
whether there are any infirmities in the evidence of such a
witness; whether the evidence is reliable and trustworthy and
whether the genesis of the crime unfolded by such an incident
is probable or not. If the evidence of any interested witness or
a relative on a careful scrutiny is found to be consistent and
trustworthy, free from infirmities or any embellishment there
is no reason not to place reliance on the same (see Arjun Marik
& Ors. v. State of Bihar [(1994) Supp. (2) SCC 372].
30. In Mehraj Singh v. State of U. P. (supra), this Court held
that testimony of interested witness cannot be rejected on the
sole ground of interestedness but should be subjected to close
scrutiny.
31. In Anil Sharma & Ors. v. State of Jharkhand [(2004) 5
SCC 679], this Court reiterated and re-emphasisd that the
testimony of related witness, if after deep scrutiny found to be
otherwise truthful and credible, cannot be discarded on the
sole ground of interested witnesses. Again, in Bhimapa
Chandappa Hosamani & Ors. v. State of Karnataka [(2006 (11)
SCC 323], it has been held that credibility of the witness is to
be tested by reference to the quality of his evidence which
must be free of any blemish or suspicion, must impress the
court as wholly truthful, must appear to be natural and so
convincing that the court has no hesitation in recording a
conviction solely on that basis.
32. In a recent decision, this Court in S. Sudershan Reddy
& Ors. v. State of A. P. [(2006) 10 SCC 163] held that
relationship is not a factor to affect the credibility of a witness.
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It is more often than not that a relation would not conceal the
actual culprit and make allegations against an innocent
person. Foundation has to be laid if plea of false implication is
made. In such cases, the court has to adopt a careful
approach and analyse the evidence to find out whether it is
cogent and credible.
33. Again this Court in Salim Sahab v. State of M. P. [(2007)
1 SCC 699] held that mere relationship is not a factor to affect
credibility of a witness. To the same effect are the decisions
in State of Punjab v. Jagir Singh [(1974) 3 SCC 277], Lehna v.
State of Haryana [(2002) 3 SCC 76] and Gangadhar Behera v.
State of Orissa [(2002) 8 SCC 381].
34. The High Court no doubt has disbelieved some portion
of the evidence of P.W. 3 in regard to the presence of A-4 to A-
9 at the scene of occurrence on the grounds that A-5 was
present in the Thermal Power Station from 4.30 p.m. to 8.30
p.m. on the day of occurrence, therefore the possibility of A-5
participating in the commission of the offence could not be
ruled out. The High Court has found no evidence against A-7
and A-8 on record to hold them guilty for the murder of
deceased No.1 and deceased No.2. It is well-settled that the
Court can rely upon that part of the statement of the witness
which is cogent, trustworthy, consistent and believable for the
purpose of holding the accused guilty of the offence. Simply
because the name of P.W. 3 finds mentioned in FIR for the
murder of son of A-6, the cogent and credible testimony of
PW-3 holding A-1, A-2, A-10, A-11 and A-12 responsible for
the murder of deceased No.2 cannot be lost sight of on that
ground alone. The presence of PW-3 on the scene of
occurrence has been fully established by the evidence of PW-1
and PW-2 and his name also finds mentioned as an eye
witness in the FIR which was lodged by P.W. 1 immediately
after the incident of murder. The High Court has found a
portion of the evidence of P.W. 3 deficient in regard to the
involvement of A-1, A-2, A-10, A-11 and A-12 for committing
the offences levelled against them and accordingly given them
benefit of doubt. It is settled that even if a major portion of
the evidence is found to be deficient, in case the residue is
sufficient to prove guilt of an accused, conviction can be
maintained. It is the duty of the court to separate grain from
chaff. Where chaff can be separated from grain, it would be
open to the court to convict an accused notwithstanding the
fact that evidence of some of the witnesses has been found to
be deficient. Falsity of a particular material witness or
material particular would not ruin it from the beginning to the
end. The maxim "falsus in uno falsus in omnibus" has no
application in India and the witnesses cannot be branded as
liars [see S. Sudershan Reddy and Ors. v. State of A. P. [(2006)
10 SCC 163].
35. Lastly, it was urged by Mr. Patwalia that the case of B.
Seshaiah (A-10) is an extremely hard case, who is now aged
about 87 years and is suffering from Parkinson’s disease
Hypertension, Diabetes with severe Calcific AV Stenosis, Mild
AR, Moderate MR and Anemia of some degree. This apart, A-
10 has already undergone jail suffering for about three years
and, therefore, taking all these factors into consideration, his
sentence may be reduced to the period already undergone by
him. We are afraid to accept this submission of the learned
counsel, because A-10 has been held guilty for being a
member of unlawful assembly and sharing common intention
with A-1, A-2, A-10, A-11 and A-12 to commit the murder of
deceased No.2.
36. Having given our careful consideration to the
submissions made by the learned counsel for the parties and
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in the light of the evidence discussed hereinabove and tested
in the light of the principles of law highlighted above, it must
be held that the evaluation of the findings recorded by the
High Court do not suffer from any manifest error and mis-
appreciation of evidence on record. Hence, we agree with the
finding of the High Court that the A-1, A-2, A-10, A-11 and A-
12 are the real culprits and their conviction and sentences for
the offences punishable under Section 302 read with Section
149, Section 302 and Section 449 of the IPC are wholly
sustainable and justifiable.
37. In the result, there is no merit in this appeal and it is,
accordingly, dismissed.
38. B. Seshaiah (A-10) is on bail pursuant to the order of
this Court passed on 30.10.2006. His bail bonds are
cancelled and surety is discharged. He is directed to
surrender before the trial court within one month from the
date of this order. The learned trial court shall remand him to
jail for serving out the remainder part of the sentences. On
failure of B. Seshaiah to appear before the trial court within
the stipulated period, the learned trial court shall take
appropriate steps against A-10 in accordance with law.