State of
Andhra Pradesh Vs. Dr. M.V. Ramana Reddy & Ors
[1991] INSC 192 (14
August 1991)
Ahmadi,
A.M. (J) Ahmadi, A.M. (J) Punchhi, M.M.
CITATION:
1991 AIR 1938 1991 SCR (3) 600 1991 SCC (4) 536 JT 1991 (3) 421 1991 SCALE
(2)337
ACT:
Indian
Penal Code--Sections 148, 302 and 324--Acquittal of accused--Whether valid and
proper on the evidence ad- duced.
Delay
in holding identification parade--Effect of.
HEAD NOTE:
One
Ram Subba Reddy, an advocate, politician and a tradeunionist, was murdered on
the night between 14th and 15th April, 1975, at his house in Proddatur, when
the de- ceased is stated to have received fatal blows by lethal weapons whilst
his daughter (PW 1), sleeping nearby received injuries when she attempted to go
to help her father. Ac- cording to the prosecution, Accused No. 1 (Respondent
No. 1), was a friend and a regular visitor to the house of the deceased, till
they fell out on account of trade union activities. Accused No. 1 was the
President of the workmen's unions of Andhra Cotton Mills, Proddatur,
International Packaging Company, Proddotur and Transport Workers, espous- ing
the cause of workmen and directing their union activi- ties while the deceased,
a practising Advocate represented the managements of these companies and
tendered legal advice to them in connection with the various labour problems
arising in those companies. The deceased who was a lawyer for the companies had
advised the accused No. 1 not to resort to violence for settlement of
industrial disputes.
The
fact that infuriated accused No.' 1 further was the help which the deceased
agreed to provide to PW 11 for setting up an office of INTUC in his own office.
This was intended to counter the militant activities of Accused 1 who was in
control of most of the labour unions in the town.
According
to the prosecution at about 3.30 a.m. on
the day of occurrence, PW 1 who was sleeping on the terrace of the house nearby
her father, woke up bearing the cries of her father ans saw accused 1 with 6 or
7 others stabbing her father with daggers. She raised an alarm and tried to go
to rescue her father but she was prevented by three of them from getting up;
accused No. 3 had gagged her mouth with his hand and had pinned her down to the
cot. Thereafter accused 5 tried to stab her with a dagger twice but on both the
occasions she warded off the blows and in the process sus- tained injuries on
her left index finger, 601 thumb and palm extending to another finger. After
the as- sailants left, she got down and informed her mother PW 2 about the
incident; she opened the door to PWs 3 and 4, who were sleeping outside. She
sent a message to the police through PW S, her neighbour, as telephone lines
were cut.
The
police took up investigation and 19 persons including the respondents were put
up for trial before the Additional Sessions Judge, Cuddapah on different
charges e.g. criminal conspiracy, rioting and murder, etc. The learned trial
judge came to ie conclusion that the prosecution had failed to establish the
Charge of criminal conspiracy under Section 120B, I.P.C. It accepted the
testimony of PWs 1to 5 and held (i) that the incident occurred at 3.30 a.m. on the terrace of the residence of the deceased;
(ii) the injuries borne on the fingers of PW 1 were not self-inflicted as
suggested by defence and (iii) that the intimation of the incident was the
police without loss of time. Accordingly the trial Judge convicted Accused Nos.
1 and 3 under Sections 148 and 302 and Sec. 324 with the aid of Section 149,
I.P.C. and accused No. S under Section: 148, 302 and 324, I.P.C. and sentenced
all the three to life imprisonment for murdering Ram Subba Reddy and to
rigorous imprisonment for 3 years under section 148, IPC. The other 16 accused
were acquitted. The convicted persons appealed to the High Court and the State
filed an application for enhancement of the sentence imposed on Accused No. 1
to capital punishment. The High Court allowed the appeal by the convicted
persons and acquitted them.
Hence this
appeal by the State against the order of acquit- tal, by special leave. The
High Court bold that the evidence of PW 1 is tainted in that the names of
accused 2 and 4 who were strangers to her figure in her statement Exh. P-1 and
further her statement regarding identity of Accused 3 and S was unacceptable. The
High Court therefore found the evi- dence led by the prosecution untrustworthy.
and thus acquit- ted the accused appellants before it.
Partly
allowing the appeal, this Court,
HELD:
On the question of presence of PW 1 in Proddatur on the date of the incident,
apart from the oral evidence of PWs 1 to 3 and 5, there is the documentary
evidence in the form of the entry Ex. S6 recorded by PW 24 in the general diary
on April 15, 1975 at about 4-30 a.m. That entry was made on the information
supplied by PW 5. It is clearly stated therein by PW S that he had been told by
PW 1 that her father was murdered at his residence. It was on receipt of this
information that the police went to the house of the deceased, drew up the
inquest report and recorded the state- ments of those present there including
PW 1. The presence of PW 1 is, therefore clearly established 602 by this
document prepared within an hour from the time of the incident. This contemperaneous
document corroborates the oral evidence of the aforesaid witnesses. [614A.C]
The High Court failed to realise that when an injury is on an accessible part
of the body, which the individual can himself reach, such an injury could also
be self-inflicted and when a medical witness is asked if it was possible to
self-inflict it he would have to answer in the affirmative unless the direction
of the injury or such other factors show otherwise. But merely because the
medical officer says that they could be self-inflicted, there is no reason to
jump to such a conclusion unless. circumstances establish such a possibility.
In the present case there was hardly any opportunity to self-inflict them. Her
not being a left hander should make no difference because she is bound to use
that hand to ward off the blows if her assailant is on that side of her bed.
The High Court was not justified in con- cluding that PW 1 had self inflicted
the wounds found on her left hand. This conclusion of the High Court is, to say
the least, wholly conjectural and totally against the weight of evidence on
record. [615F-616A] Once it is accepted that PW 1 had slept on the terrace and
had sustained the injuries in the incident, her evidence regarding the identity
of accused No. 1 who was quite well known to her cannot be doubted. [616G] The
evidence of PW1 is that when she heard the cries of her father she woke up and
saw accused No. 1 and six or seven others belabouring him. This means that she
did not know and could not identify the companions of accused No. 1.
However,
when she tried to raise an alarm three of the assailants approached her and
pinned her down to the bed, and one of them threatened to stab her. He did
carry out his threat as is evidenced from the injuries sustained by her.
She
was able to identify two of them at the identification parade held on May 23, 1975. This is proved through the
evidence of PW 14 who conducted the test identification parades. Now accused
Nos. 3 and S had surrendered before the Court on May 13, 1975. PW 14 received the requisition for arranging a test
identification parade on May 17, 1975.the identification parade was actually
held on May 23, 1975 There is no valid explanation
tendered by the prosecution for the delay in holding the identification
parades. The High Court was reluctant to place absolute reliance on the
evidence of PW 1 regarding the identity of accused Nos. 3 and 5. In the absence
of a valid explanation for the delay, the Court did not think that this
approach of the High Court can be said to be manifestly wrong to call for
intervention.
[617A-E]
603 The Court, in the result, partly allowed the appeal in so far as it related
to original Accused No. 1-respondent No. 1 set aside the High Court's order
acquitting him and restored the order of trial Judge convicting and sentencing
him. The Court affirmed the High Court's order of acquittal passed in respect
of other accused, giving them the benefit of doubt. [617E-G] State of Jammu and Kashmir v. Hazara Singh & Anr., [1980]
, Suppl. SCC 641, referred to.
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 7 of 1979.
From
the Judgment and Order dated 13.2.1978 of the Andhra Pradesh High Court in
Criminal Appeal No. 812 of 1976 and 807 of 1977.
K. MadhaVa
Reddy, TVSN.Chari, Narashima P.V.P.L. and Ms. M. Gupta for the Appellant.
R.K. Garg,
T. Rama Mohan Raj, N.M. popli and V.J. Fran- cis for the Respondents.
The
Judgment of the Court was delivered by AHMADI, J. Ram Subba Reddy, an advocate,
politician' (an ex-MLA) cum trade unionist was done to death when he was
sleeping on the terrace of his house in Proddatur, District Cuddapah, on the
night 'between 14th and 15th April, 1975.
The
incident in question occurred at about 3.30 a.m. in which, apart from the
deceased Ram Subba Reddy having re- ceived fatal blows by lethal weapons, his
daughter PW 1 Krishnaveni, aged about 24 years, received injuries when she
attempted to 'go to help her father. As many as 19 persons were put up for
trial before the learned Additional Sessions Judge, Cuddapah on different
charges. Original accused Nos. 1 and 7 to 19 were charged for criminal
conspiracy under section 120B; original accused Nos. 1 to 6, 12 and 13 were
charged for rioting with deadly weapons under section 148;
original
accused No. 16 was charged under section 147 along with original accused Nos. 1
to 6, 12 and 13; original accused Nos. 1 to 6, 12 and 13 were also charged for
murder under section 302; the said accused alongwith original accused No. 16
were also charged under section 302/149;
original
accused No. 5 was charged under section 324 and he as well as original accused
Nos. 1 to 604 4, 6, 12, 13 and 16 were charged under Section 324/149, I.P.C. To
bring home the charges against them the prosecu- tion mainly relied on the
testimony of PW 1 Krishnaveni, PW 2 Venkata Subbamma, widow of the deceased, PW
3, Venkat Rami Reddy and PW 4 Kasireddy sambasiva Reddy, both of whom it is
claimed were sleeping on the ground floor of the house of the deceased and PW 5
Annapu Reddy Venkata Subba Reddy, a neighbour who arrived at the scene of
incident on hearing the commotion and who at the instance of PW 1 lodged the
FIR Exh. P-56 at about 4.30 a.m. The learned Additional Sessions Judge accepted
the evidence of PWs 1, 2, 3 and 5, PW 4 having turned hostile, and convicted
original accused Nos. 1 and 3 under section 148 and section 302 and 324 with
the aid of section 149, I.P.C. and original accused' No. 5 under sections 148,
302 and 324, I.P.C., substantively. All the three of them were sentenced to
life imprisonment for mur- dering Ram Subba Reddy and to rigorous imprisionment
for 3 years under section 148, I.P.C. No separate sentence was imposed for
causing injuries to PW 1. The rest were acquit- ted of all the charges levelled
against them. No appeal was preferred to the High Court against their acquittal
but the three convicted accused preferred an appeal to the High Court
challenging their conviction while the State appealed for enhancement of the
sentence of accused No. 1 from life imprisonment to capital punishment. The
High Court doubted the testimony of PWs 1, 2, 3 and 5 and their capacity to
identify the assailants and, therefore, acquitted them of all the charges levelled
against them. Consequently the State's appeal for enhancement of accused No.
1's sentence also failed. While the State has preferred this appeal against the
order of acquittal or' original accused Nos. 1, 3 and 5, no appeal has been
preferred against the dismissal of he State's appeal for enhancement of the
accused No. 1's sentence. A few facts leading to this appeal may be noticed.
The
deceased was a practising lawyer and a congressman. He was member of the
Legislative Assembly during the 1967 ,1972 term. He had his own house in which
he resided. AcCused No.
1, a
medical practitioner, was a trade union activist be- longing to the Communist
party of India (Marxist-Leninist group) and weilded considerable influence
among the working classes. Accused No. 2 was a lower division clerk in the
judicial department, District Cuddapah, but was on cave at the material time.
He was a close associate of accused No..1. Accused Nos. 3 and 5 were employees
of Andhra Cotton Mills, Proddatur, while accused Nos. 4 and 6 were employees of
International Packaging Company, Proddatur, and took part in trade union
activities. In the first quarter of 1974 the workers of the International
Packaging Com- .
605 pany
had served the management with a charter of demands and accused No. 1, who was
the President of the Union had served the management with a strike notice on
the' failure of the negotiations which the management countered by declaring a
lock-out. Thereafter PW 21 Jutura Ramaniah partner of the company was assaulted
on the night of March 30, 1974 for which a case was registered against accused
No. 1 and his companions. The deceased who was a lawyer for the company is stated
to have advised accused No. 1 not to resort to vio- lence for settlement of
such industrial disputes. As the deceased was representing the company the
relations between the deceased and accused No. 1 which were cordial were soured
and the latter stopped visiting the former. In the month of November 1974, on
the advise of the deceased, the management brought workers from Bangalore and started the factory. However
the workers' union could prevail upon those workers not to report for. work and
the unit again same to a standstill within about ten days of commencement. The dis-
pute was referred to the arbitration Of three persons but they could not
resolve it on account of the uncompromising attitude of the workers led by
accused No. 1.
While
this unrest continued trouble started brewing-with the transport workers union
of which accused No. 1 was the President striking work. Here too the management
was repre- sented by the deceased. The atmosphere in the township was
surcharged and tense. With the intervention of the State Minister the dispute
between the transport workers and the owners was settled but so far as the
International PaCkaging Company is concerned its employees did not participate
in the meeting called by the Minister. A warrant for the deten- tion of accused
NO. 1 under MISA was issued on February 14, 1975
but the same could not be executed as he went under- ground. On the advice of
the Minister the management unilat- erally opened the factory w.e.f. March 19, 1975. The de- ceased had throughout
taken a very active interest in ensur- ing the starting of the factory
notwithstanding the stand taken by the union. The union had also complained
about the unilateral imposition of certain conditions on the' workmen but to no
avail. The workers began to report for work though the union was not
reconciled. On the other hand since the warrant for accused No. 1's arrest
could not be executed a warrant for the attachment of his properties was issued
on April 9, 1975.
PW 11
M. Sajjana, Assistant Station Master, Cuddapah, had started an INTUC branch at Cuddapah
sometime' in Decem- ber, 1973. Under its banner a youth conference was organised
on January 26, 606 1975. PW H presided. over that conference and a decision was
taken explore the possibility of starting an INTUC branch at Proddatur with the
help of the deceased. Pursuant thereto PW 11 and others visited Proddatur on
March 27, 1975 to discuss the matter with the deceased. The deceased promised
all possible help and agreed to provide space for the office of INTUC in his
own office. Ultimately to counter the militant activities of accused No. 1 who
was in control of most of the labour unions in the town a decision was taken to
start an INTUC branch in Proddatur w.e.f. April 19,1975. Pamphlets were issued
in this behalf soliciting the co-operation ,of workers and others. This was the
last straw on the camel's back.
The
physical condition of the. place. of occurrence may be noticed to. appreciate
the ocular evidence..The house faced southward and lay along a public road with
open space in-the front covered by a.compound,wall in the front with no such
wall on the remaining three sides. In the front was a verandah and thereafter
came the drawing room in which was installed a telephone. Further to the north
was. a room and beyond that was a hall. Then came another covered verandah with
a tin-sheet sloping roof at a height of about 7 feet from the ground level.
This-was the ground floor accommoda- tion. The staircase.leading' to the
terrace was situate in the hall. This staircase opened in a room leading to the
open terrace. This terrace room had an asbestos 'sheet projection whereunder
there was an electric bulb. The ter- race had a parapet wall all round of the
height of about 3 feet. On the south-west side of the terrace room along. the
parapet wall there existed a 24 feet long pial of the.
height
of 20 inches and width of 18 inches. A window in the western wall had a cement
shade 4 feet x 2 feet in size, Adjacent to. that window was a telephone pole
hardly five feet away from the-wall with the upper end hardly 6-1/2 inches from
the cement shade. The prosecution case is that this telephone pole was used by
the assailants to launch the attack on the deceased.
The
family of the deceased comprised of his wife PW 2, two daughters, one of whom
was married and lived with her husband and, the other PW 1 was a medical
student, and three sons none of whom was in town on that day. Pw. 1 was study- ing
in the third year at Kakinada and had come home as the college was closed from
April 12 to April 20, 1975. PW 1 deposed that on the date of the incident after
dinner she and her parents chit-chatted for sometime and thereafter her father
went to the terrace as it Was summer and retired for the night. She continued
to talk with her mother and in the meantime PWs 3 and 4 arrived. They carried
their-beddings to the verandah and slept 607 there. PW 3 used to sleep at their
house since the last couples of years whereas PW 4 came there occasionally.
After they left for the verandah the witness closed the 'ground floor door to
the house, carried an anatomy book and went to the terrace to sleep. She read
in the terrace light which was under the asbestos projection and then went to
bed on the cot laid for her keeping the light on as was the usual practice. Her
mother did not sleep on the terrace as she was not allowed to climb the stairs
since she had recently undergone an operation. Her father was sleeping on the
bed laid on the floor wearing a banian. A hurricane lantern was also kept lighted
on account of frequent power failures. At about 3.30 a.m. she woke up hearing
the cries of her father and saw accused No. 1 and 6 or 7 others stabbing her
father with daggers. She raised an alarm and tried to go to the rescue of her
father but she was prevented by three of them from getting up. According to her
accused No. 3 had gagged her mouth with his hand and had pinned her down to the
cot.
Thereafter
accused No. 5 tried to stab her with a dagger twice but on both the occasions
she warded off the blows and in the process sustained injuries on her left
index finger, thumb and palm region extending to another finger. Till the
assailants had finished with her father she was pinned down to her bed and
thereafter the assailants went to the west, climbed the parapet wall and went
down the terrace. She then ran down crying that accused No. 1, whom she knew
since quite sometime, and his companions had killed her father.
She
woke up her mother and informed her of what had hap- pened. On hearing a knock
on the main entrance to the house, she opened the door and found PWs 3 and 4
holding a torch.
On
inquiry she told them that accused No. 1 and his compan- ions had killed her
father and she too was injured. She learnt from them that they had seen accused
No. 1 and 4 or 5 others slide down the telephone pole situated to the west of
the house. She then tried to contact the police on phone but found that the
same was disconnected. Since PW 5 a neighbour was there she requested him to go
tO the police station and fetch the police. On receipt of information a
Sub-Inspector of police and a few constables arrived by about 5.00 or 5.30 a.m.
to whom she narrated the incident whereupon her state- ment was recorded which
has been introduced on record as Exh. P-1. The Sub-Inspector held the inquest
on the dead body between 7.00 and 10.30 a.m., drew up a panchnama of the scene
of occurrence, attached the anatomy text book and other blood stained articles
from the terrace, including the electric bulb from the socket of the electric
holder on the terrace, At the identification parade held later she identi- fied
accused Nos. 3 and 5 as the companions of accused No. 1. In cross-examination
she' denied the suggestion that accused Nos. 3 and 5 were shown to her while
they were in the sub-jail before 608 she was asked to identify them. It
transpires from her cross-examination that the defence case was that she had
not slept on the terrace, that the cut injuries on her left hand were
self-inflicted and that she was falsely implicating accused Nos. 3 and 5 as
they had supported her rival Padma in a college election when she was in the
B.Sc. class. It was also suggested that photographs of accused. Nos. 3 and 5
were shown to her from a group photo obtained from A.C. Mills Union Office. It
may be mentioned that the suggestions made to this witness in regard to the
identity of accused Nos. 3 and 5 are self contradictory in the sense that if
the suggestion that she was falsely involving these two accused because they
had helped Padma who contested the election against her is correct it would
follow that they were known to her since long in which case there would be no
need to point them out to her while they were in the sub-jail or to show their
photographs to her. Suffice it to say that.
nothing
very striking, except minor contradictions, has been elicited in her
cross-examination which would shake her credibility. PW 2, her mother,
corroborates her say in regard to the incident and the involvement of accused
No. 1.. PW 3 has deposed that since he and PW 4 anticipated danger to the life
of the deceased on account of the dis- turbed management-labour relationship
they slept at the house of the deceased. PW 3 states that he saw eight persons
sliding down the telephone pole..Amongst them were accused Nos. 1 to 5 and S.V.
Subbarayadu whom he identified as accused No. 6. PW 4 has stated that on the
date of the incident he had heard about the murder when he was at his residence
at about 4.30 a.m. He was treated as hostile and was
allowed to be cross-examined by. the prosecution. PW 5, whose house was only
about 100 yards away, deposed that when he was sleeping on his terrace he heard
cries at about 3.30
a.m. and went to the
house of the deceased. PWs 1 to 4 were present there alongwith other. neighbours.
PWs 1 and 2 were.weeping while PWs 3 and 4 were trying to console them.
PW 1
asked him to inform the police that her father was murdered. He then went and
informed the police about the incident and returned with the police to the
scene of of- fence. Thus the evidence of this witness also corroborates PW 1.
The
inquest was!held between 7.00 and 10.30' a.m. The statements of PWs 1 to 5 were
also recorded and certain articles were attached from the terrace.These
included blood stained bed-sheets, pillows, towel, shawl, shrit, etc., and
Cunningham's text book on. human anatomy which PW 1 was reading before going to
bed. The telephone connection was found snapped and there were drops of blood
from. the place where the dead body was found till the drawing room down-
stairs where the telephone was: installed which. corrobo- 609 rated the story
of PW 1. The banian worn by the deceased, was blood stained and had cuts
corresponding to injuries found on. the chest of the deceased. Several other
articles found on the person. of the deceased were blood stained.
There
were as many as 33 injuries on the person of the deceased which is clearly
indicative of the involvement of a group of persons in the killing. This stands
corroborated by the post-mortem report. On the cot which was occupied by PW 1
there were blood drops on the bed, bed cover and bed sheet. The reports of the
Chemical Analyser and Serologist, Exhs. P-18 and P-19. show that all the
articles were stained with human blood. A lantern was burning nearby and the
electric light on the terrace was also on. This inquest panchnama Exh. P-6
leaves no room for doubt that the inci- dent occurred on the terrace portion of
the residence of the deceased.
PW 1
was medically examined by the medical officer PW 13 on the same day at about 11.45 a.m. She had incised wounds on the left index finger
1/2" x 1/4", on the left hand below tile wrist 1" x 118" x
1/8", on the middle of the left palm 1" x 1/8" x 1/8" and
on the little finger of left hand 1/2" x 1/8" x 1/8". This would
indicate that she received these injuries while trying to ward off the blows.
Identification
parades were held on May
23, 1975. In the first
one accused Nos. 7, 10 and 11 were made to stand with non-suspects, in the
second parade accused Nos. 12, 13 and 16 were made to take their positions
along with several others and in the last parade accused Nos.17, 18 and 19 were
concerned. PW 1 could not identify any one from amongst the said accused
persons in all the three parades.Out of the three parades PW 3 identified all
the three accused of the second parade. In the evening an identification'
parade was held concerning accused Nos. 2 to 6 and 9. PW 1 could iden- tify. 'accUsed
Nos. 3 and 5 while PW 3 could not identify any of them.
The defence
of all the accused was of total 'denial and false involvement. In fact accused
No. 1 contended that.he was out of station from May 13, 1975 and learnt of the murder on his return to Proddatur. When
he learnt of his false involvement he surrendered before the Court. Accused
Nos. 12, 13 and 16contended that they were shown to PW 3 before the
identification parade while accused Nos. 3 and 5 pleaded that the police had
taken a group photograph in which they figured from the union office and had
shown it to PW Accused Nos. 7, 11, 14, 15, 17 and 19 were not examined under
section 313 of the Criminal Procedure Code as no evidence incriminating them
was tendered on record. No defence witness came to be examined.
610
The learned Additional Sessions Judge, Cuddapah, came to the conclusion that
the prosecution had failed to establish the charge of criminal conspiracy under
section 120B, I.P.C.
He
came to the conclusion that the evidence on record, however, indicated that
accused Nos. 1 to 6 had a direct and strong motive to kill the deceased and the
likelihood of the others having shared their feelings could not be ruled out
altogether. The direct testimony of PWs 1 to 5 and the other circumstantial
evidence adverted to earlier established beyond any manner of doubt that the
incident occurred at 3.30
a.m. on the terrace of
the residence of the deceased.
The
learned Judge held that intimation of the incident was given to the police
without loss of time and PW 1 had lodged her complaint by about 6.00 a.m. when the police came to the scene of occurrence alongwith
PW 5 who had gone to call them. The suggestion that injuries found on the
person of PW 1 were selfinflicted or that PW 2 was giving false evidence as she
was promised financial help to the tune of Rs.1,50,000 were brushed aside by
the learned Judge as totally imaginary ,and unfounded. The learned Judge,
however, did not treat PW 1's complaint EXh. P-1 as admissible in evi- dence as
he came to the conclusion that it was hit by sec- tion 162 of the Code since
information regarding the inci- dent had reached the police station through PW
5. The learned trial Judge, therefore, accepted the evidence of PWs 1, 2, 3 and
5 as reliable and convicted them as stated earlier while acquitting their
companions.
The
said three convicted accused preferred an appeal, being Criminal Appeal No. 812
of 1976, in the High Court.
,State
also preferred an appeal for awarding capital punish- ment to accused No. 1,
being Criminal Appeal No. 807 of 1976. The State's appeal came to be dismissed
and that is where the matter rests. However, the appeal by the convicted
accused came to be allowed and the appellants were acquit- ted. It is against
the said order of acquittal that the State has approached this Court by way of
special leave. It would, therefore, be proper to ascertain the grounds on which
the impugned order of the High Court is founded.
The
High Court came to the conclusion that the complaint of PW 1 was not recorded
at the time it purports to have been for if it were so it would not have
reached the con- cerned Magistrate as late as 1.40 p.m. In that case even the inquest report Exh. P-6 would not
have been delayed till 10.55
p.m. The explanation
for the delay found in Exh. P-25 cannot be accepted at its face value. The
evidence of PW 1 is tainted, in that, although she knew accused No. 1 as he
visited her father quite often the rest of the assailants were total strangers
and yet 611 the names of accused Nos. 2 and 4 appear in her statement Exh. P-1
which goes to show that she was tutored into giving their names. That according
to the High Court raises a serious doubt regarding her trustworthiness. On the
question of identity of accused Nos. 3 and 5, the High Court points out that
even before the identification parade she had told the Magistrate that she
would be able to identify only two persons and later pointed an accusing finger
at accused Nos. 3 and 5 at the identification parade. This, says the High
Court, reinforces the defence version that she was shown the group photo before
she was called to identify the accused persons. The identification parade was
delayed upto May 23,
1975 as till then the
photograph was not secured by the police. In the circumstances the High Court
did not find the evidence of PW 1 regarding the identity of accused Nos. 3 and
5 acceptable. The High Court also held that the injuries on the left hand of PW
1 were in all probability self-in- flicted, more so because she is not a
left-hander. So also the absence of blood stains on the bed lying on the floor
of the terrace casts a serious doubt regarding her version of the incident. The
High Court found the prosecution story that the electric light as well as the
kerosene lamp were kept on throughout the night rather unusual. In this view of
the evidence, the High Court did not consider PW 1 a truth- ful witness. As
regards PW 3 the High Court found his ver- sion that he slept at the residence
of the deceased since sometime unacceptable. It also noticed that PW 3 claimed
to know accused Nos. 1 to 6 by their names and he gave out those names to the
police and yet he could not identify any of them at the test identification
parade. For this reason the High Court did not place reliance on his evidence.
The High Court, therefore, found the evidence led by the prose- cution
untrustworthy and acquitted the accused/appellants.
Hence
the present appeal.
Mr. Madhav
Reddy, the learned counsel for the appellant-State contended that the presence
of PW 1 at the time of the incident was not only deposed to by PWs 2 and 3 but
also by PW 5. The presence of PW 3 at the house at about 4.30 a.m. is deposed to even by the hostile witness PW 4.
He,
therefore, submitted that the presence of PWs 1 to 5 is clearly established and
is reinforced by the evidence of PW 13, the medicalman, who examined PW 1 at
the Government Hospital at about 11.45 a.m. on
the same day. The Sub-In- spector PW 24 also deposes that PW 5 had told him
that PW 1 had sent him to report the murderous assault on her father.
He
submitted that once the presence of PWs 1 and 3 was established there was no
reason to doubt their testimony merely because PW 3 was honest enough not to
falsely involve any one by pointing an accusing finger at the identification
612 parade. He submitted that even PW 1 was honest enough to identify only two
persons, namely, accused Nos. 3 and 5, Whom she had an occasion, to see near
her cot on the ter- race. To reject her evidence as regards the identity of
these two accused on the specious plea that their photo- graphs were shown to
her'. before the identification parade would be, to say the least, unjust. If
she could be shown the photograph why not PW 3 also! He also submitted that it
was preposterous to hold that the injuries found on the left hand of PW 1 were
self-inflicted. The absence of blood on the bed sheet of the bed on the floor
of the terrace clearly explained that the deceased must have rolled onto the ter-
race floor where the presence of blood was noticed. He, therefore, submitted
that the High Court had reversed the well reasoned judgment of the. trial court
on totally imagi- nary grounds which had resulted in grave miscarriage of
justice.
Mr. R.K.Garg,
learned counsel for the respondents/ac- cused, submitted that this Court should
not interfere with the decision of the High Court' unless it' finds the view
taken by the High Court as perverse and wholly improper, resulting in
miscarriage of justice. In support he cited State of Jammu & Kashmir v. Hazara
Singh & Anr., [1980] Supp, SCC 641. He also submitted that the
investigating agency had shown extra zealousness as the deceased was a
prominent lawyer and an ex-MLA. Supporting the view of the' High Court he urged
that the presence of PW 1 was highly doubtful and in any case it would be risky
to rely on her interested testimony regarding the identity of accused Nos. 3
and 5. The 'absence of blood on the bed shows that the same was planted after
the event to concoct the story that PW 1' was sleeping on the cot and not
downstairs with her mother PW 2 who' had recently undergone an operation.' Once
the evidence of PW 1 is excluded there is no direct testimony since PW 3 had
not identified any of the accused at the identification parades. In short he
supported the judgment of the High Court and prayed that we should not
interfere in exercise of our extra-ordinary powers under Article 136 of the
Constitution.
The
motive for the commission of the crime was the indus- trial unrest occasioned
on account of the strike by the workers of the International Packaging 'Company
and later by the transport workers. Indisputably accused No.1 commanded
considerable clout over the employees of various industrial units such as the
International Packaging Company, Andhra Cotton Mills and the transport industry
in Proddatur..
Accused
No. 1 was championing the cause of the workmen during the. prolonged agitation
and strike by the workers of the Inter- 613 national Packaging Company and also
spearheaded the agita- tion by the transport workers. The deceased was the
lawyer for the managements and was considered the main obstacle, in the realisation
of the workers* demands. There was, there- fore, animosity between the deceased
and accused No. 1. This is more than clear from the oral evidence of PWs 2.3.4,
10. 11.21 to 23 and from the documentary evidence tendered as Exhs. P-2 to P-5.
P-30 to P-37 and P-40 to P-55. In view of this overwhelming documentary
evidence which corroborates the ocular evidence of the aforesaid prosecution
witnesses, it is established beyond any manner of doubt that the rival- ry
between the trade unions headed by accused No. 1 and the managements. advised
by the deceased had assumed ugly.
proportions.
The starting of the INTUC branch at Proddatur with the active participation of
the deceased was perhaps the last straw on the camel's back which worsened the rela-
tions between accused No. 1 and the deceased. This is the motive according tO
the prosecution for the crime in ques- tion. But as has often been commented
bitter animosity can be a double edged Weapon which may be instrumental for
deliberate false involvement or for the witnesses wrongly inferring and
strongly believing (without having actually witnessed it) that the crime must
have been committed by the rival group. This possibility has to be kept in mind
while evaluating the prosection evidence regarding the involvement of accused
No. 1 and his companions in the commission of the crime.
There
is no dispute regarding the description of the residential house of the
deceased and the location of the telephone pole to the west thereof. It is not
disputed that the said pole could be conveniently used for slidding down from
the terrace. So also the fact that the telephone con- nection was snapped is
not put in issue. The fact that the incident occurred on the terrace is not
disputed but the fact that the deceased was sleeping on the floor and PW 1 was
sleeping on the cot is disputed. It was suggested in the course of
cross-examination of the prosecution witnesses that the deceased alone was
sleeping on the cot on the terrace and PW 1 was in fact not in town and even if
she was in town she must have been sleeping with PW 2. Lastly the fact that the
deceased died a homicidal death on receipt of as many as 33 injuries is not
disputed- The find of human blood on the various articles attached by the
police, i.e. those worn by the deceased as well as PW 1 and those found lying
on the terrace, is clearly established by the reports Exhs. P-18 and P-19 which
have not been questioned. It is in this background that we must consider if the
High Court has commit. ted any grave error requiring interference under Article
136 of the Constitution.
614 On
the question of presence of PW 1 in Proddatur on the date of the incident,
apart from the oral evidence of PWs 1 to 3 and 5, there is the documentary
evidence in the form of the entry Exh. 56 recorded by PW 24 in the general
diary on April 15, 1975 at about 4.30 a.m. That entry was made on the information supplied by
PW 5. It is clearly stated therein by PW 5 that he had been told by PW 1 that
her father was murdered at his residence. It was on receipt of this infor- mation
that the police went to the house of the deceased, drew up the inquest report
and recorded the statements of those present there including PW I. The presence
of PW 1 is, therefore, clearly established by this document prepared within an
hour from the time of the incident. This contempo- raneous document
corroborates the oral evidence of the aforesaid witnesses. She was examined by
the medical officer PW 13 on the same day at about 11.45 a.m. In addition there- to, the find of the Anatomy book and
slippers on the ter- race, also lends assurance to the prosecution evidence in
this behalf. Therefore, even if it is assumed that the time of recording her
statement' Exh. P-1 is not correctly re- corded, her presence at the scene of
offence at the material time is established beyond a shadow of doubt.
Accused
No. 1 was a friend Of the deceased till they fell out. He was a regular visitor
to the house of the deceased and, therefore, PW 1 knew him quite intimately. She
has frankly admitted that others were strangers but she was able to identify
accused Nos. 3 and 5 because she had an opportunity to see them from close
quarters when they were near her cot. The existence of a cot and a bed on the ter-
race is indicative of the fact that two persons were sleep- ing on the terrace.
There were only three family members present on the date of the occurrence, one
of whom was PW 2 who had undergone surgery only recently and was advised not to
climb the stairs. It is, therefore, obvious that the deceased and PW-1 slept on
the terrace.. The submission that the bed on the floor was planted is based on
the fact that there was no blood on the bed-sheet of that bed. But this
submission overlooks the existence of blood drops nearabout the bed. The dead
body of the victim was also found lying on the terrace floor nearby. The High
Court relied on the photograph Exh. D-4 for holding that the bed was fresh and
unused. But as is apparent from the, crossexamination of PW 24 that the said photograph
shows "the bed-sheet spread over the bed on the cot is tucked beneath the
bed". Thus the said photograph is not of the bed on the floor. The High
Court seems to have misread the evidence. Secondly, it is clear that the dead
body was lying at some distance from the bed suggesting that the deceased had
rolled over during the night or in the course of the attack. The 615 other
articles lying nearby e.g towel, shawl, etc. were blood stained and there Were
fresh drops of blood between the dead body and the western waif leading to the
telephone pole. Since there were Only three family members one of whom, PW 2,
had undergone an operation in the recent past, it is difficult to understand
how PW 1 alone could shift the dead body of her father from the cot to the
place where it was found to concoct evidence against the accused. It is too
much to attribute such intelligence to PW 1 or for that matter PW 3 also. If
the dead body which was bleeding had in fact been shifted there would have been
blood drops from the cot to the place where it was found. Besides, where was
the time for the entire exercise? PW 5 was sent to call the police and he had
returned with the police after his report was entered in the general diary at 4..30
a.m.. It. there- fore, seems difficult to believe that the bed on the floor was
planted to support the prosecution version that PW 1 slept on the terrace that
night..
The
medical officer PW 13 found four incised wounds on the left hand of PW 1,
possible by a sharp cutting weapon like a dagger or knife. These injuries were
indeed minor in nature. The High Court has concluded that the possibility of
these injuries being self-inflicted cannot be ruled out, PW 1 says she received
these injuries in the process of warding off the blows aimed at her. PW 13 also
deposes that these injuries could have been received while trying to ward off
the blows on her. Thus the medical evidence supports her say. However, in cross
examination he stated that all the four injuries were cut injuries and not stab
wounds. In response to a suggestion made in cross-examination he stated that
the possibility of the injuries being self-inflicted was not an impossibility.
Merely from this suggestion and PW 1 not being a left hander the High Court
concluded that the possibility of the injuries being self-inflicted could not
be ruled out. With respect, the High Court failed to realise that when an
injury is on an accessible part of, the body which the individual can himself
reach, such any injury could also be self-inflicted and when a medical witness
is asked if it was possible to self-inflict it he would have to answer in the
affirmative unless the direction 'of the injury or such other factors show
otherwise. But merely because the medical officer says that they could be selfin-
flicted, there is no reason. to jump to such a conclusion unless' circumstances
establish such a possibility. In the present case there was hardly any
opportunity to self-in- flict them.. Her not being a left hander should make no
difference because she is bound to. use that hand to ward off the blows if her
assailant is on that side of her bed.
We,
therefore, feel that the High Court was not justified in concluding that PW 1
had self inflicted the wounds found on her left hand. With 616 respect, this
conclusion of the High Court is, to say the least, wholly conjectural and
totally against the weight Of evidence on record.
The
delay in Sending the FIR Exh. P-1 to the Magistrate has been seriously
commented upon by the High Court while rejecting the explanation given in Exh. P-25.
This comment has lost its significance as the said document has not.been
admitted in evidence by both 'the courts below on the ground that it is hit by
section 162 of the Code. We would have examined the explanation if that document.
had formed part of the record.' Any way that cannot impinge On the credibil- ity
of PW 1 if her evidence is otherwise acceptable, which we find it is'.
On the
question of identity it is clear from the evi- dence of PW 1 that accused No. 1
was known to her quite well Since before the incident. She could, therefore,
have no difficulty in identifying him even in poor light. Immediate- ly after
the accused fled she ran down and informed her mother that accused.No. 1 and
his companions had killed her father. Since PW 1 had not disclosed the name of
accused No. 1 as one of the assailants to PW 5, the latter did not speak about
him to the police and hence his name does not appear in the FIR recorded at
4.30 a.m. Accused No. 1 pleaded an alibi: which he miserably failed to probabilise.
The absence of names of assailants in the general diary entry made on -the
basis Of information supplied by PW 5 at the behest of PW 1 has weighed
considerably in the High Court doubting the version regarding the involvement of
accused No. 1 in the commission of the crime. It must, however, be realised
that PW 1 had disclosed the name of accused No. 1 at the earliest point of time
when the complaint Exh. P-I and the inquest report Exh. P-6 were recorded. It
must also be realised that,PW 1 was under terrible strain at that time. Not
only had this young girl lost her father in a ghastly assault, she had also to
look after her ailing mother: and console her. She frantically tried to inform
the police on telephone but found the instrument dead with the wires snapped.
She,.
therefore,
asked this young boy aged 'about 16 years, PW 5, to go to the police station
and fetch the police. There was hardly-any time to give details of the
incident. Under the circUmstances the absence of the name of accused 'No. 1 as One
of the assailants in the entry made in the general diary at the instance of PW
5 is quite understandable. Once it is accepted that PW 1 had slept on the
terrace and had sus- tained the injuries in the incident, her evidence regarding
the identity of accused No. 1 who was quite well known to her cannot be doubted.'We
are, therefore, of the view that the High Court was not justified in disturbing
the view taken by the trial court in this behalf.
617
That takes us to the question of the involvement of accused Nos. 3 and 5. The
evidence of PW 1 is that when she heard the cries of her father she woke up and
saw accused No. 1 and six or seven others belabouring him. This means that she
did not know and could not identify the companions of accused No. 1. However,
when she tried to raise an alarm three of the assailants approched her and
pinned her down to the bed, and one of them threatended to stab her. He did
carry out his threat as is evident from the injuries sus- tained by her. She Was
able to identify two of them 'at the identification parade held on May 23, 1975. This is proved through the
'evidence of PW 14 who conducted the test iden- tification parades- Now accused
Nos. 3 and 5 had surrendered before the court on May 13, 1975. PW 14 received the requi- sition for arranging a test
identification parade on May
17, 1975. The
identification parade was actually held on May 23, 1975. There' is no valid explanation
tendered by the prose- cution for the delay in holding the. identification
parades.
The defence
has suggested in the cross-examination of PW 1 and PW 25 that in the meantime
the accused who were in custody were shown to the witnesses and the police had
secured a group photograph in which accused Nos. 3 and 5 figured to facilitate
their identification. The High Court was, however, reluctant to place absolute
reliance On the evidence of PW 1 regarding the identity of accused Nos. 3 and
5. In the absence of a ,valid explanation for the delay we do not think that
this approach of the High Court can be said to be manifestly wrong to call for
our intervention.
' In
the result this appeal is partly allowed insofar as it relates to original
accused No. 1 i.e., respondent No. 1 before us. The High Court's order
acquitting him is set aside. The appeal is,' however, dismissed so far as
original accused Nos. 3 and 5 i.e., respondent Nos. 2 and 3 before us are
concerned- We restore the order of conviction and sen- tence of original
accused NO. 1--respondent No. 1--recorded by the learned Additional Sessions
Judge, Cuddapah for his involvement in the crime with several other unknown
persons.
We,
however, give the benefit of doubt to original accused Nos. 3 and 5, i.e,
respondent Nos. 2 and 3 and confirm the order of their acquittal recorded by
tire High Court. The original accused No. 1--respondent No. 1 will submit to
his bail forthwith- The bail bonds in respect of other two respondents will
stand cancelled.
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