Vs. State of Andhra Pradesh  INSC 871 (27 November 1997)
MUKHERJEE, S.P. KURDUKAR, K.T. THOMAS
27TH DAY OF NOVEMBER, 1997 Present:
Mr. Justice M.K. Mukherjee Hon'ble Mr. Justice S.P. Kurdukar Hon'ble Mr.
Justice K.T. Thomas B. Kanta Rao, Adv. the appellant G. Prabhakar, Adv. for the
following Judgment of the Court was delivered:
appellant was indicted before the Additional Sessions Judge, Mahaboob Nagar for
the murder of his uncle Elukur Yasalah. Though the trial Judge exonerated him
of the above charge, the High Court, in appeal preferred by the
respondent-State, convicted and sentenced him to suffer imprisonment for life
for the murder. Hence this appeal under Section 379 Cr.P.C. at his instance.
According to the prosecution case on July 18, 1990 the appellant, who is a resident of
village Konkal, came to the house of the deceased in village Thummilla - which
is at a distance of 20 kms. from Konkal- an asked for some money by way of
loan. when the deceased expressed his inability to accommodate him, t he
appellant implored the former to sign some papers to obtain loan on the
security of the joint family property. This entreaty was also turned down by
the deceased. After staying for that night at the deceased place the appellant
left for his village on the following morning.
that night (July 19,
1990) the deceased
went to sleep in the outer verandah of his hut, with his son Elkur Rathanam
(P.W.1) and wife Sarojamma (P.W.2) sleeping inside.
about 11 P.M., P.Ws. 1 and 2 heard the cries of
the deceased and when they rushed out they saw the appellant running away with
some weapon in his hand. The deceased told them that the appellant had stabbed
him. they found that his intestines had come out and he had injuries on his
hands also. A few minutes later he succumbed to his injuries.
the following morning at or about 8.30 A.M. P.W.1 went to Rajoli Police Station, which is at a distance of 17 kms. from
the village, and lodged an information about the incident. Shaik Mohammad Hussain
(P.W.9), a Sub Inspector of Police, registered a case on that information and
took up investigation. He went to village Konkal at or about 9.30 A.M. and held inquest upon the body of the deceased. He
then sent it for post mortem examination by Dr. K. Pullanna (P.W.7) Civil
Assistant Surgeon of the local Government hospital who found the following
injuries on his person:- "1. An incised wound extending from epigastric
region to right lumber region oblique in direction, measuring 6" x 4"
x 6", edges red and regular. large intestine, small intestine, omentum
came out side through this wound faecal matters also came outside through this
incised wound on the dorsal aspect of right wrist joint 3" x 1 1/2" x
1" edges red and regular, all tenders are exposed.
incised wound on left orsal aspect of left wrist joint size 2" x 1" x
1/2" edges red and regular." He opined that the death was due to
shock and haemorrhage caused by the injuries.
In course of the investigation the appellant was arrested on July 29, 1991 and at his instance his blood
stained shirt (M.O.7) and a sickle (M.O.6), also blood stained, were recovered.
The seized articles were sent to the Forensic Science Laboratory for chemical
examination. On receipt of report of such examination and completion of
investigation the police submitted charge-sheet against the appellant.
appellant pleaded not guilty to the charge levelled against him and his defence
was that he was falsely implicated.
Since the factum of the death of the deceased owing to the injuries sustained
by him was not disputed by the defence the main question that fell for
determination before the Courts below was whether the evidence of P.WS. 1 and
2, on acceptance of which rested the success of the prosecution, was reliable.
In acquitting the appellant the trial Court held that they were not
eye-witnesses to the incident and their evidence that were not eye-witnesses to
the incident and their evidence that the deceased told them that the appellant
had stabbed him was only hearsay. The trial Court further held that their claim
that they identified the person who was fleeing away from their house was the
appellant could not be accepted as it was not possible for them to identify the
assailant in the darkness of the night. Some inconsequential and minor
contradictions in the evidence of P.Ws. 1 and 2 were also pressed into service
by the trial Court.
appeal the High Court reappraised the evidence and held that the evidence of P.Ws.
1 and 2 clearly and fully supported the prosecution case.
Having given our anxious consideration to the evidence of P.Ws. 1 and 2 and the
attending circumstances of the case we find no merit in this appeal. The
observation of the trial Court that the statement made by the deceased before P.Ws.
1 and 2 that the appellant had stabbed him could not be relied upon as it was
'hearsay' is opposed to fundamental principle of criminal jurisprudence for the
statement so made is not only admissible as evidence under Section 32(1) of the
Evidence Act but can also be made the sole basis for conviction, if it can be
safely relied upon. The other observation of the trial Court that it was not
possible for P.Ws. 1 and 2 to identify the appellant as the person who was
running away form their house, cannot also be sustained for their uncontroverted
evidence shows that a lamp was burning on the Verandah then and therefore it
was not difficult for them to identify the appellant, more so when he was their
Having regard to the fact that the incident took place at an unearthly hour of
the night in the house of the deceased, it cannot be gainsaid that P.Ws. 1 and
2 were the most natural and probable witnesses. This apart, we find that inspite
of searching and lengthy cross examination the defence could not succeed in
eliciting any answer favourable to it. Judged in that context, we do not find
any reason whatsoever to disbelieve their testimony that they saw the appellant
running away form their house and that the deceased told them that it was the
appellant who stabbed him. When these two places of evidence are considered
along with the medical evidence and the F.I.R., which contains the substratum
of the prosecution case and was lodged with utmost dispatch, the only
legitimate inference that can be drawn is that the prosecution has been able to
conclusively prove that the appellant committed the murder of his uncle.
the result the appeal fails and is hereby dismissed.