Surya Prakasarao Vs. State of Andhra Pradesh  INSC 1716 (10 November
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1038
OF 2008 GAJULA SURYA PRAKASARAO ... APPELLANT VERSUS STATE OF ANDHRA PRADESH
SUDERSHAN REDDY, J.
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.
In the nutshell, the prosecution version which led to the trial of
the appellant is as under:
On the intervening night of 7th/8th 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 8th 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.
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 20th 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.
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).
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
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.
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.
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.
appellant was upset and developed a grudge against the deceased and in the
process committed the crime on the intervening night of 7th/8th 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.
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 8th April, 2002 in which he clearly stated that
on the intervening night of 7th/8th 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
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.
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'.
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.
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.
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.
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
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 of Maharashtra1
this Court held:
long as the maker of the statement is alive it would remain only in the realm
of a statement recorded during investigation.
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"
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.
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
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.
between her husband (deceased) and the appellant may be one possible reason for
her to implicate the appellant in the case after deliberations.
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
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.
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 considering the scope of
interference in exercise of its jurisdiction under Article 136 of the
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
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
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
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.
The appeal is, accordingly, allowed.
............................................J. (B. SUDERSHAN
............................................J. (J.M. PANCHAL)
November 10, 2009.