Page 1 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

Page 2 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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Page 3 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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Page 4 (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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Page 5 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.

5

Page 6 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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Page 7 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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Page 8 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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Page 9 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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Page 10 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

10

Page 11 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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Page 12 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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Page 13 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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Page 14 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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Page 15 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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Page 16 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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Page 17 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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Page 18 (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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Page 19 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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Page 20 (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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Page 21 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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Page 22 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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Page 23 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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Page 24 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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Page 25 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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Page 26 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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Page 27 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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Page 28 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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Page 29 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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