GANGABHAVANI Vs RAYAPATI VENKAT REDDY .
Bench: B.S. CHAUHAN,S.A. BOBDE
Case number: Crl.A. No.-000084-000084 / 2011
Diary number: 31282 / 2007
Advocates: P. VINAY KUMAR Vs
D. BHARATHI REDDY
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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
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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
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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
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(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
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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.
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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
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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
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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.
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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
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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
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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.”
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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
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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).
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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
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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.
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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
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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
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(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
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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
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(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.
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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
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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.
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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
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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,
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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.
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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
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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
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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
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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
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