of A.P. Vs. S. Rayappa & Ors  Insc 72 (14 February 2006)
Sema & Dr.A.R. Lakshmanan
23 accused in all were put to trial before the Trial Court under Sections
148/302/149 IPC. A-21 died before the Trial commenced. A-1 to A-20, A-22 and
A-23 faced the trial.
Trial Court convicted A-2, 3, 6, 12 and 14 under Section 148 and sentenced to
rigorous imprisonment for three years.
Trial Court also found A-2, 3, 6, 12 and 14 guilty under Section 302 and
sentenced to rigorous imprisonment for life and a fine of Rs.2000/- in default
three months rigorous imprisonment. Being aggrieved, two appeals were preferred
before the High Court. Criminal Appeal No. 1727 of 1997 was preferred by Sathuluri
Rayappa A-2, Sathuluri Chalapathi A- 3, Sathuluri Dibbaraju A-6 and Garapati Mastan
Appeal No. 18 of 1998 was separately preferred by Satuluri Milke Raju A-14. By
the impugned order the High Court acquitted all of them. Hence these appeals by
special leave by the State of Andhra Pradesh.
stated the facts are as follows:
accused and the material prosecution witnesses were the residents of village Chilakaluripeta.
The deceased Pilli Mohan Rao was also the resident of the same village.
P.W.1 Pilli Subba Rao is the brother of the deceased. The deceased Pilli Mohan Rao
is the brother-in-law of another eyewitness P.W.2. The village Malapalli of Chilakaluripeta
is a faction-ridden village. One group was led by A-6 who belonged to C.P.M
party and the deceased who also belonged to C.P.M party led another group.
Since 1984 there were several criminal cases against each other among these
groups. On 7.4.1992 A-1 and two others stabbed the son of the deceased. After
the said incident, the deceased shifted his family from Malapalli to Sanjeeva
Colony in Chilakaluripeta to his sister's house. It is the case of the
prosecution that on 24.7.1992 at about 7.00 a.m. all the accused persons passed in front of the house of P.W.1 stating
that they had killed Pedda Sambaiah and they would kill the deceased Pilli
Mohan Rao. P.W.1 having heard the conversation went to his sister's house where
the deceased and his family were residing. P.W.1 narrated the story to the
deceased and asked him to escape. P.W.1 and the deceased then came to Narsaraopet
bus stop of Chilakaluripeta. Then they saw all the accused coming towards them
armed with deadly weapons. On seeing the accused they started running and the
accused chased the deceased. It is the prosecution case that Sathuluri Dibbaraju
A-6 axed on the back of the deceased, Sathuluri Rayappa A-2 hit him on the left
side of the chest, Sathuluri Milke Raju A-14 also axed on the back of the
deceased, Sathuluri Chalapathi A-3 beat on the back side of neck of the
deceased and Garapati Mastan A-12 speared on the back of the deceased. All the
other accused meanwhile watched to prevent others from coming there. On hearing
hue and cry of the deceased the neighbours came out, by that time all the
accused ran away. It is further stated that after the incident P.W.1 and P.W.2
went near the body and found the deceased dead. Thereafter, P.W.1 went to the
police station and lodged the report with Head Constable P.W.8 at Town Police
Station. P.W.9 the C.I. took up the investigation and in course of the investigation,
statement of prosecution witnesses were recorded, documents collected and
having found that prima facie case was established against the accused,
submitted the chargesheet. Later, on appreciation of evidence and documents
collected during the course of the investigation and having found the case
established against the accused during the trial, the Trial Court convicted the
appellants as aforesaid.
High Court doubted the presence of P.W.1 and P.W.2 who are eyewitnesses to the
occurrence and discarded their testimony. The High Court, in our view,
erroneously discarded the evidence of P.W.2 merely on the ground that in
inquest report (Ex.P.2) it does not disclose the name of P.W.2 as an
eyewitness. In Ex.P.2 a very detailed statement of P.W.1 has been recorded. In
cross-examination P.W.1 categorically stated that P.W.2 Valleru Devadanam was
present at the scene during the time of inquest and until the dead body was
taken to the hospital. The High Court, has failed to take note that in the
first information report the name of P.W.2 prominently figures as an
eyewitness. This apart, P.W.2 in his deposition clearly stated that he was
present at the spot at the time of inquest report. He has also stated that he
was examined by the police at the scene during the time of inquest and his
statement was recorded. The statement of P.W.2 that he was present at the spot
at the time of inquest report prepared by the police was corroborated by the
statement of P.W.3 Kondamuthi Bulli Kotamma. He has categorically stated that
P.W.2 was present at the spot at the time of inquest report.
statement of P.W.2 was further corroborated by P.W.4 Challa Venkata Hanumanthu Vijaya
Kumar, who is a village Administrative Officer and a panch witness to the
inquest report. He has stated that two witnesses were examined at the time of
inquest report. Further P.W.5 Rama Chandra Prasad also corroborated the
evidence of P.W.2 that P.W.2 was present at the time of the inquest report. In
view of the direct evidence of prosecution witnesses regarding the presence of
P.W.2 at the spot at the time of the inquest report the finding recorded by the
High Court is clearly perverse.
High Court doubted the presence of P.W.1 on the ground that he gave the first
information report (ExP.1) at 2.30 p.m. on
24.7.1992 at the police station which was doubtful because the endorsement of
the Magistrate in Ex.P.1 showed that he received the first information report
at 12 mid night. It is not disputed that the incident had taken place on
24.7.1992 at 12.30 noon. P.W. 1 categorically stated that
he went to the police station and lodged the FIR (Ex.P.1) at 2.30 p.m. This statement is corroborated by P.W.8, police head
constable that P.W.1 lodged the FIR at 2.30 p.m. Why and how the FIR lodged at 2.30 p.m. reached the ilaqa Magistrate at 12 mid night should have been explained
by the I.O. if such question was put to him. Admittedly, on the same day at 7.30 a.m. another murder, that of Pedda Sambaiah who was
brother-in-law of the deceased had taken place and the same case was also
investigated by the I.O., P.W.9. We have been taken through the entire
examination and cross-examination of I.O. and not even a suggestion has been
put to him about the delay of F.I.R. reaching the ilaqa Magistrate at 12 mid
night. If such a question was put to the I.O. he should have explained the
delay, if any, because in the instant case one of the important circumstances
that could have delayed the FIR reaching the ilaqa Magistrate is that on the
same day another murder had taken place at 7.30 a.m. in which one Pedda Sambaiah
brother-in-law of the deceased was murdered. The High Court was, therefore,
clearly in error in holding that the delay of FIR reaching ilaqa Magistrate at
mid night would throw a suspicion about the presence of P.W.1 and P.W.2. The
evidence of P.W.1 and P.W.2 is categorical with regard to the participation of
each accused in giving blow to the deceased with a particular weapon. P.W.7 Dr.S.Lalithakumari
conducted the post mortem examination and found the following external injuries
on the body of the deceased:
A cut injury in the occipital region
of the head 5cms X 1 cms x bone deep ecchymosis present on deep dissection.
An incised wound of 2 cms length and
4 cms deep near the right side of the thorasic spine. Vertical in direction.
clear cut. Ecchymosis present underlying tissues.
A cut injury of 6X3X7 cms deep in
the center of the lumbar region over the 3rd lumber spine. On deep dissection ecchymosis
present. 3rd lumbar vertibra cut. The injury is transverse in direction.
are clear cut.
A stab injury in front of the left
of the left side of the chest. Transverse in direction 4X2X7 cm deep. Edges are
clear cut. The injury is just below the left nipple.
A deep cut injury of 6X3X8 cms deep
in the left lumbar region. Transverse in direction. Edges are clear cut.
present." The external injuries as described by the P.W.7; injury No.1
corresponds to axe injury caused by A-3, injury No.2 corresponds to spear
injury caused by A-12, external injury No.3 corresponds to axe injury caused by
A-6, external injury No.4 corresponds to axe injury caused by A-2 and external
injury No.5 corresponds to axe injury caused by A-14.
other reason assigned by the High Court in recording acquittal of the accused
is that P.W.1 and P.W.2 were interested witnesses being relations of deceased
and no independent witness was examined by the prosecution. By now it is a
well-established principle of law that testimony of a witness otherwise inspiring
confidence cannot be discarded on the ground that he being a relation of the
deceased is an interested witness. A close relative who is a very natural
witness cannot be termed as an interested witness. The term interested
postulates that the person concerned must have some direct interest in seeing
the accused person being convicted somehow or the other either because of
animosity or some other reasons.
contrary it has now almost become a fashion that the public is reluctant to
appear and depose before the Court especially in criminal case because of
cases are kept dragging for years to come and the witnesses are a harassed lot.
They are being threatened, intimidated and at the top of all they are subjected
to lengthy cross-examination. In such a situation, the only natural witness
available to the prosecution would be the relative witness. The relative
witness is not necessarily an interested witness. On the other hand, being a
close relation to the deceased they will try to prosecute the real culprit by
stating the truth. There is no reason as to why a close relative will implicate
and depose falsely against somebody and screen the real culprit to escape
unpunished. The only requirement is that the testimony of the relative
witnesses should be examined cautiously. The High Court has brushed aside the
testimony of P.W.1 and P.W.2 on the sole ground that they are interested
witnesses being relatives of the deceased.
non examination of an independent witness P.W.9, K.Bhupal Singh the
investigating officer stated that on that day he went to the place of incident
and inquired about the witness but none came forward to reveal about the case
due to fear. He has also stated that due to double murder in the town in a
single day there was terror in public and he imposed Section 144. In such a
situation surcharged with tension and fear psychosis it is not expected of any
witness to come and depose about the incident even though they may have seen.
Non-examination of independent witnesses, in such a situation, would be no
ground to discard the otherwise creditworthy testimony of P.W.1 and P.W.2,
which inspires confidence.
discrepancies in the statement of prosecution witnesses pointed out by the
counsel for the respondents need not detain us any longer. Every discrepancy in
the witness statement is not fatal to the prosecution's case. The discrepancy,
which does not materially affect the prosecution case, does not create any
result, these appeals deserve to be allowed.
impugned order of the High Court acquitting the accused (respondents herein) is
hereby quashed and set-aside. The order of the Trial Court convicting the
respondents is restored.
respondents are directed to be taken into custody forthwith to serve out the
remaining part of the sentence.
report should be sent within one month.