REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1038 OF 2008

GAJULA SURYA PRAKASARAO … APPELLANT

VERSUS

STATE OF ANDHRA PRADESH … RESOPNDENT

J U D G M E N T

B. SUDERSHAN REDDY, J.

This appeal by special leave is directed against

the Judgment rendered by a Division Bench of the Andhra

Pradesh High Court confirming the conviction of the

appellant for the offences punishable under Sections 302

and 307 of Indian Penal Code, 1860 (in short “IPC”).

The High Court by the impugned judgment confirmed the

judgment passed by the Principal Sessions Judge, Eluru

convicting the appellant under Sections 302 and 307 of

IPC and sentencing him to suffer imprisonment for life

and rigorous imprisonment for seven years, respectively,

and further to pay a fine of Rs.1,000/- each and in

default, to suffer simple imprisonment for a period of

six months each.

2. In the nutshell, the prosecution version which

led to the trial of the appellant is as under:

3.On the intervening night of 7

th

/8

th

April, 2002

appellant went to the house of the deceased in

Venkatayapalem village with an intention to end

the life of the deceased and knocked at the door

of the deceased which was opened by the wife of

the deceased, Cherukuri Srinukumari (PW-3) and

the appellant-accused all of a sudden hacked and

attempted to kill her by inflicting severe

injuries on her body, as a result of which she

fell down and then he rushed towards the deceased

who was sleeping and hacked him by inflicting

severe injuries. The appellant after committing

the offence escaped from the place of occurrence

by bolting the door from outside. The daughter

of the deceased Sri Surekha (PW-4) aged about 9

years raised hue and cry upon which the

neighbours opened the door from outside and

informed Cherukuri Gangaraju (PW1) who is a close

relation of the deceased who thereafter informed

Gopalapuram Police Station and lodged first

information report at about 4.00 a.m. on 8

th

April, 2002. A case was registered as Crime No.

30 of 2002 under Sections 302 and 307 read with

Section 34 IPC against unknown persons.

4. The prosecution, in order to establish its case,

examined altogether 14 witnesses. The trial

court upon appreciation of the evidence found the

appellant guilty of the offences punishable under

Sections 302 and 307 IPC and sentenced him to

suffer imprisonment for life and rigorous

imprisonment for a period of seven years,

respectively. The trial court mainly relied upon

the evidence of PW-3 and PW-4. The High Court

vide its judgment dated 20

th

August, 2007

dismissed the criminal appeal filed by the

appellant and accordingly confirmed the judgment

of the trial court. The High Court too relied

upon the evidence of PW-3 and PW-4. Both courts

below found that the appellant attacked the

deceased with sharp edged weapon resulting in his

death. The courts below also found the appellant-

accused attempted to kill PW-3 by inflicting

severe injuries on her body.

5.In this appeal, Shri M.N. Rao, learned senior

counsel for the appellant, submitted that the

evidence of the eye witnesses does not inspire

any confidence as PW-3 made a lot of improvements

in her version and implicated the appellant for

the first time only while deposing before the

Court and never before during the investigation

or in the first information report. The injured

witness (PW-3) and her minor daughter (PW-4)

never mentioned the name of the appellant while

narrating the incident to their neighbours,

police or the Magistrate though the appellant was

very well known to them. It was submitted that

Section 161 of Code of Criminal Procedure

statement (08.04.2002) of PW-3 was clearly ante-

timed. The evidence of prime witness PW-3 is

totally unreliable and could not be believed

under any circumstances as in her cross-

examination she went to the extent of

denying having given any statement (Ex. P-21) to

the Magistrate (CW-1).

6.In response, Ms. D. Bharathi Reddy, learned

counsel for the State submitted that the evidence

of eye witnesses is clear and cogent. The

relationship of the witnesses with the deceased

itself cannot be a ground to discard their

evidence. Learned counsel submitted that what is

relevant is the evidence of PW-3 and PW-4 in the

court and not their statement under Section 161

Cr.P.C.

7.We shall first deal with the contention regarding

the nature of evidence of PW-3 and PW-4 to

consider as to whether their evidence has been

rightly accepted by the courts below. In the

process, we will not re-appreciate the evidence

to substitute our view for that of the courts

below but consider as to whether non-

consideration of certain important aspects of the

case resulted in miscarriage of justice.

8.It is an admitted fact that the deceased was a

farmer and cultivating the lands belonging to one

Satyam Ramachandra Laxmi Devi of Rytapuram which

land was adjacent to the land of the appellant.

The owner of the said land decided to dispose of

her land admeasuring 01 acre and 54 cents

and the deceased was willing to purchase the land

at the rate of Rs.90,000/- per acre which price

was much higher than the price offered by the

appellant who also wanted to purchase the said

land. The appellant is stated to have approached

the deceased and demanded to cancel the agreement

so that he would purchase the land at a lesser

price than which was offered by the deceased. The

deceased despite the threats proceeded further

and informed the landlady that he was ready with

the balance sale consideration and required her

to execute a registered sale deed on 2.4.2002.

The appellant was upset and developed a grudge

against the deceased and in the process committed

the crime on the intervening night of 7

th

/8

th

April, 2002. This is the motive suggested by the

prosecution for the appellant committing the

crime. The prosecution story itself shows that

PW-3 and PW-4 very well knew the appellant and

also about the dispute with regard to the

purchase of the land. Yet this aspect is not

stated by either of them and more particularly by

PW-3 at any stage prior to her evidence in the

court.

9.Be it noted that the first information report was

lodged by one Cherukuri Gangaraju (PW-1) who is

none other than a close relation of the deceased

at about 4.00 a.m. on 8

th

April, 2002 in

which he clearly stated that on the intervening

night of 7

th

/8

th

April, 2002 at 2.00 A.M. “some

unknown persons knocked the door of the house,

his wife Srinukumari opened the door, two persons

entered into the house of Cherukuri Gangaraju,

hacked him with knife on his neck and also hacked

Srinukumari on her face and hands”. That

according to the first information report two

unknown persons entered into the house and

committed the crime. In his evidence he merely

stated that he was informed by the villagers that

the deceased was murdered, based on which he gave

written report to the police and the police

reached at the scene of occurrence within half an

hour and shifted the wife of the deceased to the

hospital. It is in his evidence that he gave

report to the police at the house of the

deceased. He did not draft the first information

report and he does not remember as to who drafted

the same. In his cross-examination it is stated

by him that PW-3 was sent by him to the hospital

prior to the arrival of the police.

10.Be that as it may, the crucial evidence is that

of PW-3. There is some discrepancy in the

evidence as to who sent PW-3 to the hospital.

But the fact remains that on 9.4.2002 at about

11.25 a.m. her statement was recorded by the

Judicial First Class Magistrate (Ex.P21). The

Magistrate having received the information at

about 11.00 A.M. reached the hospital and

recorded the statement as ‘dying declaration’.

PW-3 in her statement stated that one person came

to her house and suddenly beat on her head at

about 10 P.M. in the night. She did not identify

the person but stated that he was a young man

wearing stripes shirt. She did not state anything

about the attack on the deceased.

11.CW-2 is Dr. G. Bhaskararao who stated in his

evidence that PW-3 was sent for treatment of

injuries by Gopalapuram Police Station. As her

condition was serious, he immediately sent

intimation to JFCM (CW-1) who came and recorded

her statement. The doctor (CW-2) was present when

CW-1 recorded her statement. He certified that

the patient was conscious and coherent to give

her statement. The Magistrate at the foot of her

statement (Ex. P 21) certified that the

declaration recorded by him was read over and she

admitted it to be correct and complete. It is

specifically observed that she has been

conscious, coherent and in a fit state of mind to

depose all throughout. He appeared as CW-1 and

stated that he recorded the statement of PW-3

under Exhibit P-21. It has not been suggested to

him that PW-3 was not in a fit and coherent

condition at the time of recording her statement.

12.It is plainly evident that PW-3 was conscious

and coherent to make her statement and made her

statement in Exhibit P-21 in which not only she

did not mention the name of the appellant but

positively stated that she was attacked by an

unknown person aged about 20 years. Be it noted

that the appellant even at the relevant time was

of 50 years and was well known to PW-3. She did

not explain as to and under what circumstances

she made the statement in Exhibit P-21 nor there

is any explanation as to how she omitted the name

of the appellant and described somebody else to

be the assailant. On the other hand, she went to

the extent of stating that she did not know

whether the Magistrate had recorded her statement

in the house or in the hospital.

13.It is well settled and needs no restatement at

our hands that when a person who has made a

statement, may be in expectation of death, is not

dead, it is not a dying declaration and is not

admissible under Section 32 of the Evidence Act.

In the instant case, the maker of the statement

Exhibit P-21, is not only alive but is examined

as PW-3. Her statement, therefore, is not

admissible under Section 32; but her statement,

however, is admissible under Section 157 of the

Evidence Act as former statement made by her in

order to corroborate her testimony in court. In

the instant case Exhibit P-21 does not

corroborate the testimony of PW-3 in Court. It is

obvious that PW-3 later on improved the story and

roped in the appellant. In Ramprasad Vs. State

of Maharashtra

1

this Court held:

“As long as the maker of the statement is

alive it would remain only in the realm of

a statement recorded during investigation.

Be that as it may, the question is whether

the Court could treat it as an item of

evidence for any purpose. Section 157 of

the Evidence Act permits proof of any

former statement made by a witness relating

to the same fact before “any authority

legally competent to investigate the fact”

but its use is limited to corroboration of

the testimony of such a witness. Though a

police officer is legally competent to

investigate, any statement made to him

during such an investigation cannot be used

to corroborate the testimony of a witness

because of the clear interdict contained in

Section 162 of the Code. But a statement

made to a Magistrate is not affected by the

prohibition contained in the said section.

A Magistrate can record the statement of a

person as provided in Section 164 of the

Code and such a statement would either be

elevated to the status of Section 32 if the

maker of the statement subsequently dies or

it would remain within the realm of what it

was originally. A statement recorded by a

Magistrate under Section 164 becomes usable

to corroborate the witness as provided in

Section 157 of the Evidence Act or to

contradict him as provided in Section 155

thereof.”

14.Considered in the light of the law declared by

this Court the statement of PW-3 in Exhibit P-21

can be used for corroborating the testimony of

PW-3. The evidence of PW-3 is completely at

1

( 1999) 5 SSC 30

variance with what has been stated by her in

Exhibit P-21. This vital aspect of the matter has

completely escaped the attention of the courts

below which resulted in miscarriage of justice.

Enmity between her husband (deceased) and the

appellant may be one possible reason for her to

implicate the appellant in the case after

deliberations.

15.What remains for our consideration is the

statement of PW-4 who is none other than the

daughter of the deceased. The incident according

to her took place at about 2.00 A.M. in the night

when the appellant hacked her mother and father.

She stated that on her raising hue and cry one

Kanniah Tata and others came to the spot. She did

not reveal the name of the appellant to the

neighbours when they came to the house on her

raising hue and cry. Kanniah Tata who is examined

as PW-7 stated in his evidence that PW-4 informed

him that her father and mother were beaten by

somebody. The evidence on record suggests that

even PW-4 has also acquaintance with the

appellant but she did not mention the name of the

appellant at any point of time prior to her

evidence in the court. Her evidence is also vague

based on which it would be difficult to record

any finding of commission of any crime by the

appellant. There is no other acceptable evidence

available on record based on which the appellant

could be held guilty.

16.We are conscious that normally this Court would

not substitute its opinion by re-appreciating the

evidence with that of concurrent findings of the

two courts below. But in the present case,

having considered the findings of the courts

below, we hold that the courts below found the

appellant guilty on the basis of evidence of PWs-

3 and 4 upon which no reliance could be placed

for the reasons stated herein above. The facts,

based on which we have arrived at the conclusion

not to rely upon the evidence of PWs-3 and 4, are

very much available on record which were

altogether ignored by the courts below. The same

has resulted in miscarriage of justice. This

Court in Zafar Vs. State of U.P.

2

while

considering the scope of interference in exercise

of its jurisdiction under Article 136 of the

Constitution observed:

“Though it is a case of concurrent finding by both the

courts resting on the appreciation of evidence, we are

of the view that the trial court and the High Court

2

[ (2003)3 SCC 51]

overlooked certain important aspects in the practical

application of the rule of prudence and caution which

the High Court itself proceeded to apply in appreciating

the evidence of the child witness. The High Court failed

to take note of certain telling factors emerging from

the evidence on record. There was no critical appraisal

of the evidence of PW 2 except focusing attention on two

alleged contradictions of no significance and repelling

the arguments based on them. Even if the finding that

the medical evidence does not go counter to the

prosecution case is allowed to remain, there are other

fatal infirmities in the evidence relied upon by the

prosecution which were not adverted to by the High

Court. In these circumstances, we are of the view that

it is a fit case for interference under Article 136.”

17.In the present case there was no critical

evaluation of the evidence of PWs-3 and 4, and

there was no consideration of material

contradictions having crucial bearing on

the veracity of the version given by PWs-3 and

4. They went on making improvements from stage

to stage which makes their evidence doubtful. It

is under those circumstances, we are compelled to

interfere with the concurrent findings of the

courts below in order to prevent the miscarriage

of justice.

18.For the aforesaid reasons, the impugned judgment

is set aside. The appellant is acquitted of the

charges under Sections 302 and 307 IPC. The

conviction and sentences awarded against the

appellant are set aside. The appellant is

directed to be released forthwith. The bail

bonds earlier executied by him and the sureties,

if any, shall stand discharged.

19.The appeal is, accordingly, allowed.

……………………………………..J.

(B. SUDERSHAN REDDY)

……………………………………..J.

(J.M. PANCHAL)

NEW DELHI,

November 10, 2009.