“Reportable”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1849 OF 2008

Maloth Somaraju … Appellant

Versus

State of A.P.     … Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. Appellant Maloth Somaraju challenges the judgment of  

the High Court whereby the High Court allowed the State  

appeal challenging the acquittal by the Trial Court.  He  

was tried for the offence punishable under Section 302, IPC  

on the allegation that on 15.05.1999 at about 2 a.m. at  

night he committed the murder of his elder brother Maloth  

Krishna (hereafter referred to as “deceased” for short)  by  

causing his death with an axe injuring his temporal region,  

nose and face which ultimately  resulted in his death.   

The prosecution story in short conspectus

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Deceased was a worker in Singereni Collaries.  He used  

to go for his duty at about 12.30 p.m. at night every day.  

On the fateful day, he did not go for his duty.  At the  

time when the incident happened, he was sleeping on his cot  

along  with  one  son.   It  is  the  prosecution  case  that  

besides him was another cot on which his wife Heeramani  

(PW-1) was sleeping along with another son.  Besides these  

two cots, there was another cot on which was one Haridas  

(PW-9) who was the cousin of Heeramani (PW-1) was sleeping.

2. It is the case of the prosecution that at that time  

suddenly  the  appellant  came  and  assaulted  Krishna  which  

incident was seen by Heeramani (PW-1) who raised cry which  

attracted the neighbours who were mostly the relatives of  

her husband including his parents, his brother, his sister-

in-law and cousins of the deceased.  All his relatives are  

Banjara by caste.  The deceased was immediately carried in  

an  auto  rickshaw  to  Singereni  hospital  where  he  was  

declared as brought dead.  On that Maloth Heeramani (PW-1)  

had  lodged  a  report  before  Kothagudem  Police  Station.  

Since she was illiterate, Heeramani (PW-1) got scribed the  

report by Rayala Sathyanarayana (PW-14) and submitted it to  

Kothagudem police station at 6.30 in the morning.  It has  

come on record that the report was immediately forwarded to  

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the concerned Magistrate who received it at 7.30 in the  

morning.  In this report Heeramani (PW-1) complained that  

in the midnight she woke up her husband for answering the  

call of nature.  After that, she and her husband slept.  As  

they were talking to each other, her brother-in-law Maloth  

Somaraju, the accused-appellant came from behind the house  

with a sickle (Kota Kathi) and attacked her husband on his  

left temporal, nose and under the nose due to which there  

was heavy bleeding.  She further suggested that she raised  

cry and on hearing her cries, her father-in-law Balunayak  

(PW-2),  her  mother-in-law,  Maloth  Bhikri  (PW-3),  elder  

brother in law Amar Singh (PW-4), his wife Kausalya (PW-5),  

her  second  brother  in  law  Phool  Singh  (PW-6),  his  wife  

Maloth Dwali (PW-7) came there.  On seeing them, accused  

Somaraju fled away.  After that her husband was shifted in  

the auto of Mohan Rao to Company Singereni main hospital.  

However, the doctors there told that her husband was dead.  

She then narrated that accused/appellant was addicted to  

drinking and used to come to house and beat her in-laws and  

was harassing them for which her husband had to pacify them  

and about fifteen days back when the accused bit her in-

laws, her husband had beaten the accused and it was because  

of this that he bore grudge against her husband and axed  

her  husband.   The  offence  was  registered  and  the  

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investigating  officer  rushed  to  the  spot,  got  executed  

inquest Panchnama as also got drawn the map of the spot and  

sent  the  body  for  autopsy.  Autopsy  was  conducted  by  M.  

Gopal Swamy (PW-16).  Autopsy report is Exhibit P-19.  The  

autopsy was conducted at 11 a.m. in the morning.  According  

to the doctors, the approximate time of death was 8 to 10  

hours  before  the  autopsy.   After  the  completion  of  the  

investigation, the charge-sheet was filed.  At the trial,  

the prosecution examined as many as 20 witnesses and marked  

31 documents. In his defence, the plea of accused is of  

total deny.  There was no defence evidence tendered by him.  

The Sessions Judge acquitted the accused which acquittal  

was  challenged  by  the  State  by  filing  an  appeal  which  

appeal was allowed convicting the accused of the offence  

under  Section  302,  IPC  and  awarding  sentence  of  life  

imprisonment.

3. Shri Anand Dey, learned counsel appearing on behalf of  

the appellant contended before us that the High Court had  

committed an error in upsetting the verdict of acquittal  

given by the trial Court.  The learned counsel urged that  

the Sessions Judge had taken a possible view and merely  

because another view could be taken of the matter, the High  

Court  could  not  have  converted  the  verdict  of  acquittal  

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into that of conviction.  The learned counsel strenuously  

and  painstakingly  took  us  through  all  the  evidence  and  

contended that Heeramani (PW-1) was the sole eye witness  

and it was impossible for her to identify the accused as  

admittedly she as well as the deceased were sleeping in the  

courtyard and that was a new moon night and thereby there  

was complete darkness.  Learned counsel further argued that  

there were number of suspicious circumstances in the matter  

inasmuch as though her own cousin was sleeping on the third  

cot,  he  did  not  support  the  prosecution  when  he  was  

examined as PW-8.  In fact the learned counsel was at pains  

to suggest that Heeramani (PW-1) had a definite motive to  

falsely implicate the accused inasmuch as the sister of her  

husband had married her brother and both her brother as  

well as his wife had died unnatural death because of which  

the  relations  between  her  family  and  the  family  of  her  

husband  were  strained.   It  was  further  argued  that  the  

whole investigation was slipshod and casual inasmuch as the  

investigating officer had not even sent the blood stained  

clothes of the only eye witness for examination. He did not  

even send the clothes which were blood stained.  Learned  

counsel pointed out from the record that though it was the  

version of the witness that there were three cots in the  

courtyard, when the investigating officer went there, only  

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one cot was found.  The investigating officer did not even  

bother  to  seize  the  cot  which  was  blood  stained.   That  

apart,  the  learned  counsel  pointed  out  that  there  were  

serious discrepancies in the matter as the scribe of the  

FIR, Rayala Sathyanarayana (PW-14) had suggested that he  

had written the report at about 9-9.30 a.m.  According to  

the  learned  counsel,  by  then,  her  relations  and,  more  

particularly,  Bhukya  Dhalsingh  (PW-13)  had  come  and,  

therefore, there was every possibility that the relatives  

had  persuaded  her  to  falsely  implicate  the  accused  on  

account  of  the  strained  relations.   The  learned  counsel  

also pointed out that it had come in the evidence that the  

Heeramani (PW-10) was in fact sleeping inside the house and  

outer door was chained from outside and in fact it was only  

after the said door was opened by her father in law, who  

come immediately after the assault, that she came out and,  

therefore, it was impossible for her to see the accused.  

In the FIR, she had never referred to any bulb and that she  

had  made  the  improvement  regarding  existence  of  a  bulb/  

source  of  light  only  in  her  cross-examination.   Learned  

counsel,  therefore,  urged  that  if  all  these  suspicious  

circumstances  were  viewed  in  favour  of  the  verdict  of  

acquittal, the High court should not have upset the verdict  

merely because some other view favouring the conviction was  

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possible.   

4. As  against  this,  Shri  I.  Venkatanarayana,  learned  

senior  counsel  appearing  on  behalf  of  the  State  very  

strongly supported judgment of the High court and contended  

that though the house of the deceased was in the village,  

it  was  right  on  the  road,  and  therefore,  there  was  a  

possibility of the street lights being there.  The learned  

counsel  argued  that  the  evidence  of  Heeramani  (PW-1)  is  

natural evidence as she could not have been elsewhere when  

the  incident  occurred.   Her  presence,  therefore,  was  

absolutely natural.  He also pointed that her version is  

confirmed as she had taken the name of the accused barely  

in 3-4 hours after the incident, in her FIR.  Considering  

that she was an illiterate lady there was no question of  

her falsely implicating the accused.  The learned counsel  

pointed out that her own relations from her father’s side  

could not have been present at 6.30 a.m. as they are the  

residents of the other village.  He further pointed that  

the investigating officer had given the full explanation as  

to why he did not seize her blood stained clothes.  As  

regards the cots, the explanation given by him was that it  

was possible that the cots were removed for being cleaned  

as  admittedly  there  was  huge  amount  of  blood  which  was  

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clear  from  the  fact  that  even  the  earth  became  blood  

stained.  The learned counsel further pointed out that the  

version  given  by  her  father-in-law  about  the  door  being  

closed and chained from outside was obviously false as it  

was not supported by any other witness and it was clear  

that  all  the  hostile  witnesses  who  were  the  direct  

relations of the accused had the sole intention to save the  

accused.  The learned counsel supported the judgment of the  

High Court saying that no other view was possible on the  

basis  of  the  evidence  led.   He  pointed  out  that  even  

assuming  there  was  darkness,  Heeramani  (PW-1)  could  not  

have committed mistake in identifying her own brother-in-

law  who  was  barely  2-3  feet  from  her  when  the  incident  

occurred.  He pointed out that the prosecution had proved  

all the contradictions brought out in the cross-examination  

by  the  Additional  Public  Prosecutor  of  the  hostile  

witnesses.  As regards the discrepancy in the FIR regarding  

its timing, the learned counsel pointed out that if the  

copy of the FIR reached the Magistrate as early as 7.30 in  

the morning and it was not expected that an illiterate lady  

like  Heeramani  (PW-1)  to  have  necessary  intention  to  

falsely implicate the accused.  It is on the basis of these  

conflicting claims that we have to see whether the High  

Court was justified in upsetting and convicting the accused  

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for the offence of murder.

5. The law dealing with the judgments of acquittal is now  

settled.  There can be no two opinions that merely because  

the acquittal is found to be wrong and another view can be  

taken,  the  judgment  of  acquittal  cannot  be  upset.   The  

appellate Court has more and serious responsibility while  

dealing  with  the  judgment  of  acquittal  and  unless  the  

acquittal is found to be perverse or not at all supportable  

and where the appellate Court comes to the conclusion that  

conviction is a must, the judgment of acquittal cannot be  

upset.  We have to examine as to whether the High Court,  

while upsetting the acquittal, has taken such care and it  

is quite clear from the High Court’s judgment that the High  

Court has certainly taken that care.

6. The  High  Court  has  wholly  relied  on  the  direct  

testimony of Heeramani (PW-1) and has carefully examined  

her  evidence  threadbare.   Firstly,  the  High  Court  has  

correctly  found  that  she  had  a  close  relation  with  the  

accused who was her real brother-in-law and she was not  

expected to commit any mistake in identifying him.  The  

High Court has correctly observed that she would certainly  

be interested in naming the culprit since she had lost her  

husband.  The High Court has rightly found that she was a  

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natural witness and her presence in her own household was  

also absolutely natural.  Her version that she woke up her  

husband  to attend the call of nature is the most natural  

version and that has been specifically stated in the first  

information report which was filed barely within 4 – 4½  

hours  after  the  incident.   The  High  Court  refuted  the  

defence  version  that  she  could  not  have  identified  the  

accused because of the darkness on the basis of the theory  

of  the  bulb,  introduced  in  the  cross-examination.   Very  

significantly, she had not spoken about her having lighted  

the  bulb,  in  her  examination-in-chief;  however,  in  her  

cross-examination, when it was suggested to her that there  

was no power during that night, she specifically refuted  

the suggestion and then asserted that she had switched off  

the bulb before going to the bed and had switched on the  

same after she had awakened to attend the call of nature.  

This  theory  of  her  switching  on  the  bulb,  having  been  

introduced in the cross-examination, becomes all the more  

significant.   The  High  Court,  therefore,  accepted  her  

version that she had put on the bulb and had not switched  

it off after she and her deceased husband returned to the  

bed  after  answering  the  call  of  nature.   Therefore,  

whatever doubts could have been raised because of the night  

being a new moon night and the prevalence of darkness on  

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the spot, were also got dispelled by the defence by its  

cross-examination.  The High Court has also considered the  

contention raised on behalf of the defence that the accused  

could not have inflicted the injuries on the face of the  

deceased  and,  more  particularly,  front  part  thereof,  if  

after answering the call of nature, both were talking to  

each  other,  meaning  thereby  that  the  deceased  was  in  a  

sitting position.  The High Court has pointed out through  

the evidence of Heeramani (PW-1) that the deceased was in  

the lying position and it is on that basis that the High  

Court  has  rejected  the  defence  theory  and  upheld  the  

evidence  of  Heeramani  (PW-1).   The  High  Court  has  also  

found that there could not have been any motive on the part  

of  Heeramani  (PW-1)  to  falsely  implicate  her  husband’s  

brother.  The defence theory was that the sister of the  

deceased was married to her brother and her brother had  

committed suicide and in fact Heeramani (PW-1) was holding  

the accused to be responsible for the suicide.  There being  

no support to this theory in evidence, the High Court has  

chosen to ignore the same and in our opinion, rightly.  The  

witness  was  not  cross-examined  in  respect  of  the  

controversy  regarding  the  number  of  cots.   She,  in  her  

evidence, had claimed that there were three cots and she,  

her husband and two sons were sleeping on the two cots,  

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whereas the third cot was occupied by her cousin.  Relying  

on  the  sketch  (Exhibit  P-30)  drawn  by  the  investigating  

officer as also on the photographs, it was suggested that  

only one cot was found.  The High Court has rejected this  

theory that the sketch (Exhibit P-30) which is the sketch  

drawn  by  the  investigating  officer  was  admissible  in  

evidence.  The High Court has found that even if it was  

held to be admissible, admittedly, the sketch was drawn by  

11.30 am and, therefore, the possibility of the two other  

cots, which had no signs of any blood or any other material  

evidence having been found, could not be ruled out.  Even  

before  us,  Shri  Anand  Dey,  learned  counsel  appearing  on  

behalf  of  the  appellant  very  strenuously  argued  on  the  

aspect of the cot as well as the position of the deceased  

and  the  location  of  the  injuries  on  the  face  of  the  

deceased.  We are quite satisfied by the reasoning given by  

the High Court to reject the claim of the defence in this  

behalf.   Similar  is  the  situation  regarding  her  clothes  

being stained with blood.  It is an admitted position that  

her  clothes  which  were  stained  with  blood  were  neither  

seized by the investigating agency nor were they sent for  

the  chemical  examination.   The  High  Court  accepted  the  

explanation of Sub Inspector M. Konda Reddy (PW-20) that  

her clothes even otherwise could have stained with blood  

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because she had carried the deceased in the auto rickshaw  

to  the  hospital  and,  therefore,  the  clothes  were  not  

material.   We  do  not  see  any  reason  to  reject  this  

reasoning of the High Court.  Shri Dey, learned counsel,  

very strenuously urged that it was a doubtful circumstance  

and that in the absence of the blood-stained clothes, the  

version of Heeramani (PW-1) could not be believed by the  

High Court and by this Court.  We do not see any reason to  

accept the argument by the learned counsel.

7. Heeramani  (PW-1)  was  thoroughly  cross-examined  and  

nothing could be brought out in her cross-examination which  

would bring her testimony into dark.  On the other hand,  

the theory of switching on the bulb was introduced by the  

defence in her cross-examination.  What impresses us most  

about the evidence of this witness is the fact that she  

lodged the FIR barely within 4-4½ hours of the incident.  

She is an illiterate lady, which is clear from the thumb  

mark on the FIR.  It must be noted that after the incident  

which took place at 2 O’ clock at night, the deceased was  

taken by her to the hospital.  It has come in the evidence  

of this witness that immediately after the incident, her  

father-in-law  Balunayak  (PW-2),  her  mother-in-law  Maloth  

Bhikri (PW-3), Phool Singh (PW-6), her other brother-in-law  

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and Dwali (PW-7), wife of Phool Singh (PW-6) had rushed to  

the spot and then the deceased was carried to the hospital.  

It is obvious that she alone could not have carried her  

husband to the hospital and she must have been accompanied  

by the relatives on her husband’s side.  After her husband  

was  declared  dead  by  the  hospital  authorities,  she  

straightaway went to the police station and lodged the FIR  

at 6.30 in the morning which is clear from the evidence of  

Sub Inspector M. Konda Reddy (PW-20) as also from the FIR  

which we have seen ourselves.  What impresses this Court  

most is the fact that a copy of the FIR was sent to the  

Magistrate almost immediately and it was received by the  

Magistrate at 7.30 in the morning.  It was urged by Shri  

Dey, learned counsel, that this FIR was scribed by Rayala  

Sathyanarayana (PW-14) as per the dictation of Heeramani  

(PW-1)  and  that  the  same  was  scribed  near  the  police  

station.  The learned counsel invited our attention to the  

evidence  of  this  witness  where  he  has  claimed  that  he  

scribed the FIR (Exhibit P-1) at about 10 a.m.  It has also  

come  in  the  evidence  of  this  witness  that  the  distance  

between the police station and the hospital is about 2 Kms.  

and the distance between the police station and the spot of  

occurrence is about 3 Kms.  The learned counsel, therefore,  

very vehemently argued that the theory that the FIR was  

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lodged at 6.30 am has to fall on the ground of evidence of  

this witness.  The argument is absolutely incorrect.  True  

it is that the witness had stated that he scribed the FIR  

at 10’ o clock in the morning; however, Sub Inspector M.  

Konda Reddy (PW-20) has claimed that he received the FIR at  

6.30 a.m. on 15.5.1999, on the basis of which he took up  

the investigation.  Men may lie, but the circumstances and  

the documents don’t.  The copy of the FIR is seen by us  

which specifically mentions the time of recording of FIR  

6.30  a.m.   Further,  the  receipt  of  this  FIR  by  the  

Magistrate at 7.30 a.m. would obviously put an end to the  

theory that the FIR was written by Rayala Sathyanarayana  

(PW-14) at 10 O’ clock in the morning.  It has also come in  

the evidence that the inquest on the dead body was itself  

held between 7 a.m. and 9.30 a.m. in presence of Banothu  

Srinivas (PW-15) and M. Gopal Swamy (PW-16).  Had the FIR  

been written at 10 a.m., the inquest held between 7 a.m.  

and 9.30 a.m. would never have been possible.  We see no  

reason  to  disbelieve  the  inquest  report  (Exhibit  P-21).  

The version of Sub Inspector M. Konda Reddy (PW-20) is also  

supported by the fact that he registered the offence and  

mentioned in the proforma FIR the time as 6.30 a.m.  We  

have seen the evidence of Sub Inspector M. Konda Reddy (PW-

20)  very  closely  on  this  aspect.   There  is  no  cross-

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examination on this aspect excepting the bald suggestion  

that the time of the offence and the time of the report  

were manipulated to cover up the lapses on the part of the  

investigating agency.  We do not see any justification to  

this  bald  suggestion,  particularly  in  view  of  a  clear  

endorsement  by  the  Magistrate  that  the  FIR  reached  the  

Magistrate at 7.30 a.m.  Once this aspect of the timing is  

proved, the same must clinch the issue and then it cannot  

be imagined that Heeramani (PW-1) who was in the company of  

her  relatives  on  her  husband’s  side,  would  falsely  

implicate  her  own  brother-in-law.   The  theory  of  false  

implication is just not possible as the lady hardly had any  

time to think about the false implication of her brother-

in-law.  The lady is illiterate.  She could not have just  

created the theory that it was her brother-in-law who was  

the culprit, unless that was the truth.  On this backdrop,  

when  we  read  the  FIR,  it  completely  corroborates  her  

evidence.

8. The first information report given by this witness is  

complete in all the details.  She very specifically stated  

that on that day her husband did not go for the duty and on  

that night she and her husband and her cousin were sleeping  

and she woke up her husband to attend the call of nature.  

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Thereafter, she and her husband slept and while they were  

talking to each other the accused came from behind and axed  

the husband on his temporal, nose and under the nose.  She  

also  spoke  about  her  raising  cries  and  her  relatives,  

namely, Balunayak (PW-2), her father-in-law, Maloth Bhikri  

(PW-3),  her  mother-in-law,  Amar  Singh  (PW-4),  her  elder  

brother-in-law,  his  wife  Kausalya  (PW-5)  and  the  other  

brother-in-law Phool Singh (PW-6) and his wife Dwali (PW-7)  

having come on the spot.  She has also referred to the fact  

that on seeing them the accused fled away.  She has further  

stated that after they brought the husband to the hospital  

in the auto of one Mohan Rao, the doctor told them that her  

husband  was  dead.   She  has  also  given  reasons  for  the  

accused to attack her husband.   The name of scribe is also  

to be found in the first information report.  There were no  

contradictions  in  her  evidence.   She  has  supported  the  

first information report fully.

9. It was stated by the learned defence counsel that the  

scribe  has  given  an  altogether  different  time  regarding  

writing of the first information report and had stated in  

the examination-in-chief as well as the cross examination  

the totally different timing.  Very strangely, it has come  

in the cross examination itself by the defence that there  

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was rumour among the people gathered there that the accused  

had killed the deceased.  The first information report was  

scribed  by  PW-14  Rayala  Sathyanarayana  who  said  in  his  

cross  examination  that  it  was  at  about  10  a.m.  that  he  

scribed the FIR.  The learned defence counsel very heavily  

relied on this assertion and pointed out that though the  

FIR is shown to have been registered at 6.30 a.m., in fact  

it was scribed at 10 O’ clock.  We have seen the evidence  

and we are of the firm opinion that his assertion that the  

FIR  was  scribed  at  10  O’  clock  cannot  be  correct,  

particularly, in view of the registration of the offence at  

6.30 a.m. in the morning and the copy of the FIR having  

reached the Magistrate at 7.30 a.m.  It is obvious that the  

witness was falsely claiming the time of the FIR to be 10  

O’  Clock.   Bhukya  Dhalsingh  (PW-13)  is  a  resident  of  

another village called Jethyathanda.  He is related to the  

accused as well as Heeramani (PW-1).  He could reach the  

hospital at about 8 or 9 p.m. He asserted that Heeramani  

(PW-1) and others were in the hospital and he was told by  

Heeramani (PW-1) that the accused killed her husband.  Of  

course, this evidence would be of no consequence excepting  

to the evidence of judging the behaviour of Heeramani (PW-

1)  in  revealing  the  name  of  the  accused  in  his  cross  

examination by the defence.  He was made to say that there  

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was rumour among the people gathered there that the accused  

had  killed  the  deceased.   The  evidence  of  M.  Jithendar  

Reddy (PW-19) completely supports the theory that the FIR  

was  received  at  6.30  a.m.  and  at  the  same  time  was  

registered.  He has also asserted that he sent the printed  

registered FIR to the Additional JFCM, Mothagudem and also  

marked  the  copies  to  concerned  officers.   There  is  

absolutely no cross examination of this witness excepting a  

bald  suggestion  that  the  time  of  the  report  was  

manipulated.   All  this  evidence  clearly  shows  that  

Heeramani (PW-1) was a truthful witness.  She stood her  

cross examination extremely well.   

10. It is not the quantity but the quality of the evidence  

which  clinches  the  issue  in  the  criminal  trial  of  this  

type.  The quality of the evidence of Heeramani (PW-1) is  

very  high  and  her  evidence  alone  is  sufficient  for  the  

conviction of the accused.  We will, however, consider the  

evidence  of  other  witnesses  like  Balunayak  (PW-2),  the  

father of the deceased who claimed that he was called at 12  

midnight or at 1 a.m. by his deceased son that somebody had  

hit him and had broken his head.  He claimed to have tied  

the towel to the head of the deceased and gave him water.  

At  that  time  Heeramani  (PW-1)  and  her  children  were  

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sleeping in the house and the door was bolted from outside.  

He claimed to have opened the door and it is then that  

Heeramani (PW-1) came out.  He was declared hostile and the  

whole statement made by him being totally contradictory was  

got proved by the Public Prosecutor.   

11. He  has  of  course  failed  to  say  anything  about  the  

bolted door from outside and about his having woken up his  

daughter in law i.e. Heeramani (PW -1) in his statement  

before  the  police.   Those  are  clear  omissions.   On  the  

other hand, the story told by him in contradictory portions  

of his statement under Section 161, Cr.P.C. suggests that  

he is not a truthful witness.  This is apart from the fact  

that  he  was  extremely  interested  in  saving  the  life  of  

accused  who  is  his  son  and  further  this  part  of  his  

evidence was not supported by another witness including his  

wife Maloth Bhikri (PW-3) and the other witness, namely,  

Amar Singh (PW-4).  Amar Singh (PW-4) significantly enough  

deposed that on the night of death of Krishna he heard the  

cries of Heeramani (PW-1) at 1.30. a.m. which is the time  

told  by  Heeramani  (PW-1)  also.   He  was  awakened  by  the  

cries of PW-1 and not by the cries of the deceased as was  

claimed by Balunayak (PW-2).  That is the corroboration to  

the evidence of PW-1 at least in respect of the time.  It  

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also  wipes  out  the  story  of  Balunayak  (PW-2)  that  the  

deceased  had  shouted.   Significantly  enough,  no  other  

witness has stated to have been awakened by the cries of  

the deceased.  In his cross examination by the defence, it  

has come that Heeramani (PW-1) had told him in the hospital  

that  the  accused  was  the  person  responsible  for  the  

injuries.  Thus, Heeramani (PW-1) had told the name of the  

accused even to this witness which is a relevant piece of  

evidence.  The evidence of Kausalya (PW-5) and Phool Singh  

(PW-6) is of no consequence excepting to the extent that he  

was present along with Amar Singh (PW-4) and his father  

Balunayak (PW-2) in the hospital.  He tried to improve upon  

his story to the effect that Heeramani (PW-1) had expressed  

to him as to who was the assailant.  He was also declared  

hostile.   Therefore,  his  evidence  would  be  of  no  

consequence.  Similar is the story of Banoth Dwali (PW-7),  

Vankudoth  Haridas  (PW-8),  Maloth  Haridas  (PW-9),  Maloth  

Badru (PW-10), Maloth Devadas (PW-11) and Banoth Khalu (PW-

12).  All these witnesses were declared hostile and their  

evidence  is  of  no  consequence  excepting  to  the  extent  

stated earlier.  We have already referred to the evidence  

of Bhukya Dhalsingh (PW-13) and Rayala Sathyanarayana (PW-

14)  in  the  earlier  part  of  the  judgment.   The  panch  

witnesses,  namely,  Banothu  Srinivas  (PW-15)  and  Malothu  

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Balu (PW-16) have also turned hostile.  When we compare the  

evidence of all these persons who were the relatives of the  

deceased, it is significant that it has nowhere come that  

Heeramani’s (PW-1) paternal relatives were there.  In fact  

she was surrounded by all the relatives of her husband and  

yet  she  has  named  her  husband’s  younger  brother  as  the  

accused in her FIR.  We cannot imagine that she would be  

falsely  implicating  the  accused  in  presence  of  all  the  

relatives of her husband’s side.  Therefore, we are of the  

opinion  that  Heeramani  (PW-1)  is  a  completely  reliable  

witness.

12. It was argued that in this case, the discrepancy of  

the murder weapon was not properly proved and Shaik Gouse  

(PW-17) was a stock witness who was a criminal.  We also do  

not propose to believe the evidence of discovery for the  

reasons given by the Courts below; however, that would not  

give any benefit to the accused whose presence on the spot  

and whose act of hacking the deceased has been fully proved  

by the evidence of Heeramani (PW-1).  It was tried to be  

argued  by  Shri  Dey,  learned  defence  counsel,  that  the  

prosecution did not examine the two child witnesses.  We do  

not  think  that  that  could  be  viewed  against  the  

prosecution.  After all, they were of the tender age and to  

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put  them  in  the  witness  box  would  have  been  hazardous.  

Besides the prosecution had put all the witnesses in the  

witness  box  who  had  rushed  on  hearing  the  shrieks  by  

Heeramani  (PW-1)  and  initially  all  those  witnesses  had  

allegedly seen the appellant/accused.  It is a different  

affair that all of them turned hostile, obviously in order  

to save the appellant/accused who was their own kith and  

kin.  We, therefore, do not view this to be a suspicious  

circumstance.

13. The learned defence counsel Shri Dey also argued that  

the weapon was different.  While in the FIR, Heeramani (PW-

1) had said the weapon to be Kota Kathi (hunting sickle),  

the  learned  defence  counsel  pointed  out  that  the  weapon  

which  was  seized  was  an  axe.   We  do  not  attach  much  

importance to this insignificant discrepancy as it may be  

that Heeramani (PW-1) could not differentiate between the  

hunting sickle and the axe, both of which are fitted with a  

wooden handle.  We have also some suspicious circumstances  

mentioned in the judgment of the trial Court.  The first is  

regarding existence of bulb.  The trial Court held that the  

time of incident was not mentioned in the FIR (Exhibit P-

1),  but  ignored  the  fact  that  the  subject  of  bulb  was  

brought  in  the  cross-examination  by  the  defence.   The  

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second circumstance is about Heeramani (PW-1) sitting on  

the cot and talking with her husband and not mentioning  

that  the  husband  was  also  lying  on  the  cot.   In  our  

opinion, this circumstance is absolutely insignificant as  

it has been shown that her husband was actually lying on  

the  cot  as  per  her  version  in  the  Court.   Third  

circumstance is the possibility of their not talking.  That  

is absolutely insignificant and has to be ignored.  It is  

nothing unnatural.  Fourth circumstance is the account of  

darkness.  We have already explained that circumstance that  

even in the light that was available, it was quite possible  

for Heeramani (PW-1) to identify, which identification was  

further corroborated by her immediately naming the accused.  

Fifth circumstance is about the position of the deceased  

which we have already explained.  This circumstance could  

not be availed by the trial Court.  Sixth circumstance is  

about  existence  of  only  one  cot  near  the  fence  at  some  

distance  which  was  seen  in  photos.   We  have  already  

explained this circumstance to be insignificant as there  

was possibility of removing the cots since the panchnama  

took place at about 11 O’ clock in the morning.  Seventh  

circumstance is about blood stained clothes of Heeramani  

(PW-1) not being seized to establish her presence.  We have  

explained  this  circumstance  that  there  was  very  good  

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explanation  given  by  the  investigating  officer.   Eighth  

circumstance is obviously incorrect, that being the delay  

in giving the report.  Ninth circumstance is the cousin of  

Heeramani (PW-1) not supporting the prosecution.  That by  

itself cannot be a suspicious circumstance, particularly,  

on the backdrop of the FIR having been registered at 6.30  

a.m. and the same having been received by the Magistrate at  

7.30  a.m.   Tenth  circumstance  is  about  the  relatives  

completely turning hostile and not supporting the version.  

This could not be held to be a suspicious circumstance for  

the  simple  reason  that  they  were  all  interested  in  the  

accused.  Eleventh circumstance is that there was no strong  

motive to kill.  The motive looses all its significance in  

the wake of eye-witness’s account.  Twelfth circumstance is  

that  there  were  possibilities  of  some  other  persons  

attacking the deceased.  There is absolutely no basis for  

this wild imagination.  We have already referred to the  

thirteenth circumstance about bill book and held it to be  

not a suspicious circumstance.  Fourteenth circumstance is  

merely  inferential.   Fifteenth  circumstance  is  that  

Heeramani (PW-1) did not try to obstruct the deceased to  

give him blow after first blow.  That circumstance depends  

upon  the  individual  reaction.   We  do  not  attach  any  

importance to such a circumstance.  Last circumstance is  

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again about the cot.  We do not think that that is any  

relevant  circumstance.   Therefore,  it  is  clear  that  the  

trial  court  got  swayed  away  by  the  so-called  irrelevant  

suspicious circumstances which resulted into the acquittal  

of the appellant.  The High Court has, in its judgment,  

dealt with all the other aspects in detail and has also  

considered  the  evidence  without  being  influenced  by  all  

these  irrelevant  and  imaginary  suspicious  circumstances.  

We wholly approve of the judgment of the High Court and  

confirm the same.  In the result, the appeal has no merits  

and it is dismissed.

…………………………J.

[V.S. Sirpurkar]

…………………………J.

[T.S. Thakur]

August 17, 2011;

New Delhi.

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