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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL  NO. 642 OF 2008

Kusti Mallaiah ...Appellant

Versus

The State of Andhra Pradesh              ...Respondent

J U D G M E N T

Dipak Misra, J.

Calling  in  question  the  legal  propriety  of  the  

judgment of conviction and order of sentence passed in  

Criminal  Appeal  No.  990  of  2005  by  the  High  Court  of  

Judicature,  Andhra  Pradesh whereby  the  Division  Bench  

has concurred with the conviction and the imposition of  

sentence by the learned Principal Sessions Judge, Medak  

at Sangareddy in S.C. No. 79 of 1998 wherein the learned

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trial  Judge,  after  finding  the  appellant  along  with  one  

Koninti  @ Yerrolla  Veeraiah,  A-1,  guilty  of  the  offences  

punishable under Sections 302 and 404 read with 34 of  

the  Indian  Penal  Code  (for  short  “IPC”),  had  sentenced  

each of them to undergo rigorous imprisonment for life on  

the first count and three years on the second score.

2. Shorn  of  unnecessary  details,  the  case  of  the  

prosecution as  unfolded is  that  on 9.2.1997 in  the  

morning hours Koninti @ Yerrolla Veeraiah, A-1, and  

Kusti  Malliah,  A-2,  took  the  deceased,  Neelagiri  

Parvamma,  with  them Shiver  in  the  Thimmaiapally  

hillocks.   Kusti  Yellaiah,  PW-6,  eye  witness  to  the  

occurrence,  had  accompanied  them.   The  accused  

persons  and  the  deceased  consumed  liquor  and,  

thereafter,  both  the  accused  removed  her  clothes,  

ravished her and assaulted her.  The said action of  

the A-1 and A-2 was objected to by PW-6, but he was  

pushed away and being scared he went and stood at  

a distance of approximately 300 yards.  Thereafter,  

both the accused persons stole the gold and silver  

ornaments and brutally assaulted with stones, as a  

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consequence  of  which  she  sustained  injuries  and  

succumbed  to  the  same.   PW-6,  being  panicky-

stricken, ran away from the spot.  On the next day,  

i.e., 11.2.1997 about 8.00 a.m. PW-1, P. Vittal Reddy,  

the Village Administrative Officer, Thammaiahapally,  

coming to know about the dead body of  a woman  

lying in the forest, from a village shepherd, rushed  

there and found the dead body of the deceased lying  

half naked.  He returned from the forest and about  

11.30 a.m. and gave the information at Papannapet  

Police Station.  On the basis of said information the  

investigating agency proceeded to the spot, prepared  

the inquest report,  registered an FIR under Section  

302, IPC, sent the dead body for post mortem and  

after  PW-4,  Neelagiri  Bhoomiah,  husband  of  the  

deceased and PW-5, Neelagiri Mogulamma, daughter  

of the deceased, identified the photograph and small  

cloth purse to be that of the deceased, recorded their  

statements.  On 7.5.1997, the accused persons were  

arrested and 30 gold gundlu weighing about half tula  

was seized from the custody of  A-1 and two silver  

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anklets and one hand bolukada weighing about 22  

tulas from the possession of A-2.  On that day itself  

the statement of PW-6, who was an eye witness to  

the  incident,  was  recorded.   After  completion  of  

investigation  charge-sheet  was  laid  before  the  

competent  Magistrate  who,  in  turn,  committed  the  

case to the Court of Session.  The accused persons  

denied the charges, pleaded innocence and claimed  

to be tried.

3. The prosecution, in order to bring home the charges,  

examined as many as 14 witnesses and got marked  

exhibits  P-1  to  P-11  and  also  MO-1  to  MO-9.   On  

behalf  of  the  accused  Ext.  D-1  to  D-3,  the  

contradictions in the statements of PWs-4 and 5 were  

marked.

4. The  learned  trial  Judge,  after  considering  the  

evidence on record, came to the conclusion that the  

prosecution had been able to establish the guilt  of  

the  accused  persons  for  the  offences  punishable  

under Sections 302 and 404 read with 34 IPC and  

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convicted them to suffer imprisonment as has been  

referred to hereinbefore.

5. Challenging the judgment of conviction and order of  

sentence, A-1 preferred Criminal Appeal No. 909 of  

2002  wherein  the  High  Court,  analyzing  and  

appreciating  the  ocular  and  documentary  evidence  

on  record,  came  to  hold  that  the  finding  of  guilt  

recorded by the learned trial  Judge on the basis of  

the  sole  testimony  of  PW-6  could  not  be  faulted.  

Being  of  this  view  the  High  Court  dismissed  the  

appeal and confirmed the conviction and sentence.  

It is worthy to note that the said appeal was disposed  

of  on  21.9.2004.   Thereafter,  A-2,  the  present  

appellant, preferred Criminal Appeal No. 990 of 2005  

which  has  been  dismissed  relying  on  the  earlier  

judgment on 10.7.2006.

6. We  have  heard  Mrs.  Rachana  Joshi  Issar,  learned  

counsel for the appellant, and Mr. D. Mahesh Babu,  

learned counsel for the respondent-State.

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7. It is urged by the learned counsel for the appellant  

that there are material contradictions in the evidence  

of PWs-4 and 5, namely, the husband and daughter  

of the deceased, and further their statements under  

Section 161 of the Code of Criminal Procedure and  

the  depositions  in  court  being  irreconcilable,  their  

version  should  be  treated  as  totally  untrustworthy  

and  unreliable.   It  is  canvassed  by  her  that  the  

learned  trial  Judge  as  well  as  the  High  Court  has  

completely erred in relying on the ocular testimony of  

PW-6 as his evidence is not beyond reproach.  The  

learned  counsel  would  emphatically  submitt  that  

there is delay in lodging the FIR which would clearly  

reflect that the appellant has been roped in as the  

husband of the deceased had harboured some kind  

of  suspicion  relating  to  his  relationship  with  the  

deceased  and,  therefore,  the  prosecution  story  

deserves to be thrown overboard.   

8. Resisting  the  aforesaid  submissions  it  is  urged  by  

Mr.  Babu  that  there  are  no  contradictions  which  

would make the prosecution version unreliable and  

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further there is no reason to discard the evidence of  

husband  and  daughter.   That  apart,  contends  the  

learned counsel for the respondent, the evidence of  

PW-6 being absolutely credible the High Court, after  

analyzing  it,  given  due  acceptation  and  hence,  

judgment  of  conviction  does  not  call  for  any  

interference.

9. First, we shall deal with the submission pertaining to  

the delay in lodging of the FIR.  The occurrence, as  

has been stated, took place on 10.2.1997.  The FIR  

was lodged by Vittal Reddy, PW-1, and it contained  

that dead body of a woman was lying naked in the  

forest and it  had been noticed by a shepherd who  

was grazing the cattle and on the basis of the same a  

report  under  Section  174  of  the  Code  of  Criminal  

Procedure was registered and, accordingly, the body  

was sent for post mortem.  The post mortem report  

revealed the following external and internal injuries: -

“External injuries:

1. Lacerated injury fore head left side 2½” x ½”  communicating into the cavity of skull.

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2. Lacerated  injury  right  temple  1½”  x  ¼”  x  1/8”  

3. Incised wound right cheek ½” x ¼” x ¼”

4. Contusion front of chest right side 2” x ½”

5. Contusion right thigh upper 1/3” x 2” x 1”

6. Lacerated injury dorsum of the left foot 2½” x  ½” x ½”

7. Incised wound Labinamejorce left ½” x ¼” x  ¼”

8. Incised wound left inguinal region in 2” x ½”  x ¼”.

Internal Injuries:

1. Fracture frontal bone

2. Clotted blond was found over  the  frontal  area of brain.

3. Fracture 1st metatarsal bone.

All  the  above  injuries  were  ante  mortem  in  nature.”

10. Be it noted, the autopsy was done and photograph of  

the  deceased,  Ext.  P-8,  was  taken  by  PW-14,  the  

photographer.  It is clear from the evidence on record  

that when the wife of PW-4 and mother of PW-5 did  

not  come  back  from  her  parental  home  after  two  

days as per schedule, the husband requested one of  

the villagers to go to his father-in-law’s house and  

ask his wife to return to her matrimonial home.  After  

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the  information  was  sent,  on  the  next  day  his  

mother-in-law  and  sister-in-law  came  to  the  house  

and  informed  that  the  deceased  had  not  come  to  

their house.  Thereafter, his brother, Lingaiah, and he  

searched  for  her  and  on  18.2.1997  they  came  to  

know  that  some  woman  was  found  dead  in  

Thammaiahapally and the police had been informed.  

Thereafter,  he along with his daughter went to the  

police  station  where  they  were  shown  the  

photograph of the deceased and a small cloth purse  

which they identified to be that of the deceased and,  

thereafter, the investigation commenced for offences  

punishable under Sections 302 and 404 read with 34  

IPC was registered.  Thus, the chronology of events  

clearly  shows  that  the  police,  on  the  basis  of  the  

report recorded under Section 174 CrPC, conducted  

the inquest and after the PW-4 and his daughter, PW-

5,  identified  the  photograph,  commenced  the  

investigation.  During this time the husband and his  

brother  was  searching  for  the  deceased.   Regard  

being had to the totality of the circumstances,  the  

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submission that there has been delay in lodging of  

the  FIR  and for  that  reason the  entire  prosecution  

story should be thrown overboard does not deserve  

acceptance.  

11. The  next  ground  of  assail  pertains  to  material  

contradictions  in  the  statement  recorded  under  

Section 161 of CrPC and the depositions in court and  

further in the evidence of PW-4 and PW-5.  It is urged  

that the said contradictions destroy the very marrow  

of  the  prosecution  case.   To  appreciate  the  said  

submission,  we  have  scrutinized  the  statement  

recorded  under  Section  161  CrPC  of  PW-4  and  

noticed that he has said everything in detail  about  

whatever  he  has  stated  in  his  deposition  in  court  

except that his wife and he had a quarrel on the date  

of Ramjan festival.   We do not really perceive any  

contradiction  which  can  be  called  material  

contradiction.   We  say  so  as  the  omission  in  the  

statement of PW-4 recorded under Section 161 CrPC  

is  not  a  significant  omission  so  that  it  can  be  

regarded as a contradiction so significant and glaring  

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that the prosecution case should be disbelieved.  As  

far the contradiction in the evidence of PWs-4 and 5  

is concerned, on a studied scrutiny of the same we  

find  that  there  are  minor  discrepancies.   For  the  

aforesaid  purpose,  we  proceed  to  analyse  the  

evidence  of  PWs-4  and  5.   The  husband  of  the  

deceased, PW-4, has deposed that  A-1 had wanted  

to marry his daughter and A-1 had illicit relationship  

with  his  wife.   He  had  clearly  stated  that  he  had  

identified the gold and silver ornaments.  He had also  

identified the small cloth purse and the photograph in  

court.   The  version  of  the  daughter,  PW-5,  is  that  

prior to the day of death when her mother left the  

house there was a quarrel between her parents.  She  

has  also  identified  the  ornaments  of  her  mother.  

Thus, there is no material contradiction which would  

make their version untrustworthy.  True it is,  there  

are certain minor discrepancies regarding the timing,  

the factum of meeting of A-1 and the deceased in the  

market  by  the  daughter,  the  quarrel  between  the  

husband and the wife but they are absolutely minor.  

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They  even  cannot  earn  the  status  of  minor  

contradictions.  

12. In Ousu Varghese v. State of Kerala1, it has been  

opined that the minor variations in the accounts of  

witnesses are often the hallmark of the truth of the  

testimony.  In  State  of  Rajasthan  v.  Smt.  Kalki  

and another2,  it  has  been observed that  material  

discrepancies are those which are not normal,  and  

not expected of a normal person.

13. At this juncture, it is also apt to reproduce a passage  

from  State of U.P.  v.  M.K. Anthony3,  wherein it  

has been laid down as follows: -

“10.  While  appreciating  the  evidence  of  a  witness,  the  approach  must  be  whether  the  evidence  of  the  witness  read  as  a  whole  appears  to  have  a  ring  of  truth.  Once  that  impression  is  formed,  it  is  undoubtedly  necessary  for  the  court  to  scrutinise  the  evidence more particularly keeping in view the  deficiencies, drawbacks and infirmities pointed  out  in  the  evidence as  a  whole  and evaluate  them  to  find  out  whether  it  is  against  the  general  tenor  of  the  evidence  given  by  the  witness  and whether  the  earlier  evaluation  of  the evidence is shaken as to render it unworthy  of belief. Minor discrepancies on trivial matters  

1 (1974) 3 SCC 767 2 (1981) 2 SCC 752 3 (1985)  1 SCC 505

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not  touching  the  core  of  the  case,  hyper- technical approach by taking sentences torn out  of  context  here  or  there  from  the  evidence,  attaching  importance  to  some  technical  error  committed by the investigating officer not going  to the root of the matter would not ordinarily  permit rejection of the evidence as a whole.”

14. Similar view has been reiterated in  State Rep. by  

Inspector of Police v. Saravanan & Anr.4  

15. In the case at hand neither PW 4 nor PW 5 has made  

any  endeavor  to  make  any  attempt  to  materially  

improve  their  earlier  statement  in  their  deposition  

before the court to make their evidence acceptable.  

It is also not a case where it can be said that they  

had withheld something material during investigation  

and  embellished  certain  aspects  during  their  

deposition in court.  That being the position we are  

unable to agree with the submission of the learned  

counsel  for  appellant  that  there  are  such  material  

contradictions which discredit the testimony of said  

witnesses  and  accordingly  the  said  submission  is  

rejected.  

4 AIR 2009 SC 152

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16. The last limb of submission pertains to the credibility  

of the testimony of PW-6.  The learned counsel has  

seriously criticized the evidence of the said witness  

on the ground that he had not told anyone about the  

incident  and only  revealed  it  when the  dead body  

was identified.  Criticism is also advanced against the  

investigating agency that it  recorded his statement  

after  ten  days.   As  is  manifest  from the  evidence  

brought on record, he had accompanied the accused  

on the fateful night.  He has deposed that A-1 and A-

2 consumed liquor along with the deceased and after  

ravishing  her  hit  her  with  a  big  stone.   The scare  

compelled him to run away from the scene but he  

witnessed  the  occurrence  from  a  distance  of  

approximately 300 yards.  The principal attack is that  

it  is  quite  unnatural  that  he  would  not  reveal  the  

incident to anyone.  It  is worth noting that he had  

accompanied the accused persons and the deceased.  

The illicit relationship between the deceased and A-1  

has been unequivocally stated by PWs-4 and 5.  As  

per the evidence of PW-6, the three consumed liquor  

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and thereafter the whole episode took place.   This  

witness has deposed about the stealing of ornaments  

from the deceased.  There has been recovery of the  

ornaments from the accused persons and the same  

have been recovered from their custody in presence  

of PW-9.  The seizure memo, Ext. P-6, has been duly  

proven and there is nothing on record to disbelieve  

the testimony of PW-9 or to discard Ext.P-6.  Proper  

procedure has been followed as per the deposition of  

the Investigating Officer,  PW-13.  The post mortem  

report,  Ext.P-7,  clearly  mentions that  the deceased  

died on account of head injury.  Thus, the testimony  

of  PW-6  gets  corroboration  from  the  medical  

evidence and also from the factum of recovery.  That  

apart, nothing was suggested to him that he had any  

animosity  with  the  accused  persons.   Thus,  the  

cumulative nature and character of the evidence of  

this witness is difficult to ignore solely on the ground  

that he did not tell the incident to any one and only  

revealed  after  the  police  examined  him.   It  is  

common knowledge that people react to situations in  

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different  manner.   As  is  evincible,  he  had  

accompanied  the  accused  persons  along  with  the  

deceased.  As deposed by the husband and daughter,  

the  deceased  had  an  illicit  relationship  with  A-1.  

Three of them consumed liquor and she was ravished  

by the accused persons and,  eventually,  there was  

assault.   Having accompanied them and witnessing  

the incident it is natural that a sense of fear would  

creep  in.   In  such  circumstances  the  delay  in  

recording  of  his  statement  by  the  Investigating  

officer  would  not  corrode  the  version  of  the  

prosecution.  That apart, nothing has been put to him  

in the cross-examination that he was not present at  

the spot or he was involved in the crime along with  

the accused persons.  The roving cross-examination  

only concentrated on his seeing the occurrence from  

300 yards away because of darkness, which we think  

is  absolutely  immaterial,  for  they  belonged  to  the  

same village, he had accompanied them and there  

was no one else except the accused persons and the  

deceased  at  that  distance.   That  apart  he  has  

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categorically  stated  that  he  was  able  to  see  the  

assault  by  the  accused  persons  and  removing  the  

gold  and  silver  ornaments.   Thus,  there  is  no  

impediment to place reliance on his evidence as it is  

trustworthy and unimpeachable.   

17. It has been held in catena of decisions of this Court  

that there is no legal hurdle in convicting a person on  

the sole testimony of a single witness if his version is  

clear  and  reliable,  for  the  principle  is  that  the  

evidence  has  to  be  weighed  and  not  counted.   In  

Vadivelu Thevar v. The State of Madras5, it has  

been held that if the testimony of a singular witness  

is found by the court to be entirely reliable, there is  

no legal  impediment  in  recording the conviction of  

the  accused  on  such  proof.   In  the  said  

pronouncement it has been further ruled that the law  

of evidence does not require any particular number  

of witnesses to be examined in proof of a given fact.  

However,  faced  with  the  testimony  of  a  single  

witness,  the  court  may  classify  the  oral  testimony  

5 AIR 1957 SC 614

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into three categories, namely, (i) wholly reliable, (ii)  

wholly unreliable, and (iii) neither wholly reliable nor  

wholly unreliable.   In the first  two categories there  

may be no difficulty in accepting or discarding the  

testimony of the single witness.  The difficulty arises  

in the third category of cases.  The court has to be  

circumspect  and  has  to  look  for  corroboration  in  

material  particulars  by reliable testimony,  direct  or  

circumstantial, before acting upon the testimony of a  

single witness.

18. Similar  view  has  been  expressed  in  Lallu  Manjhi  

and  another  v.  State  of  Jharkhand6,  Prithipal  

Singh  and  others v.  State  of  Punjab  and  

another7 and Jhapsa Kabari and others v. State  

of Bihar8.

19. On the analysis of evidence of PW-6 we find that his  

evidence is cogent and trustworthy and further gets  

corroboration from the medical evidence and also for  

6 (2003) 2 SCC 401 7 (2012) 1 SCC 10 8 (2001) 10 SCC 94

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the factum of recovery of gold and silver ornaments  

which has been clearly proven by PW-9.

20. In view of the aforesaid analysis, we do not perceive  

any error in the judgment of conviction and order of  

sentence passed by the learned trial Judge that has  

been affirmed by  the  High  Court  and,  accordingly,  

the appeal, being devoid of merit, stands dismissed.

…………………………….J.    [Dr. B.S. Chauhan]

….………………………….J.                                            [Dipak Misra]

New Delhi; May 28, 2013.

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