Gosu Jairami Reddy
& Anr. Vs. State of A.P.
Gosu Ramachandra
Reddy & Ors. Vs. State of A.P.
J U D G M E N T
T.S. THAKUR, J.
1.
Political
rivalry at times degenerates into personal vendetta where principles and policies
take a back seat and personal ambition and longing for power drive men to
-commit the foulest of deeds to avenge defeat and to settle scores. These appeals
by special leave present a somewhat similar picture and assail the judgment and
orders of conviction and sentence passed by the Additional Sessions Judge,
Anantapur of Gooty and the High Court of Andhra Pradesh in appeal. The
prosecution case may be summarised as under:
2.
Gosu
Ramchandra Reddy (A1) and his two brothers Gosu Jayarami Reddy (A2) & Gosu
Jayaranga Reddy (A3) together with Gosu Rameshwar Reddy (A4) and Gosu Rajagopal
Reddy (A5) sons of Gosu Ramchandra Reddy (A1) all residents of village Aluru of
Anantapur District in the State of A.P. were political activists owing their
allegiance to the Telugu Desam Party. The opposite group active in the region and
owing allegiance to the Congress party comprised Shri Midde Chinna Pulla Reddy
(deceased) his son Shri M. Sanjeeva Reddy (PW1) and his two nephews M. Rammohan
Reddy (PW2) and M. Veeranjaneyuly (PW3); all residents of village Kaveti Samudram
in the District of Anantpur.
3.
Elections
to MPTC/ZPTC were held in July 2001 which saw Gosu Jayaranga Reddy (A3) contesting
for M.P.T.C. from Virapuram village, while Gosu Ramchandra Reddy (A1) sought
election from the neighbouring Yerraguntapalli village. Both of them were set up
by Telugu Desam Party. Electoral contest took a bitter turn when the duo mentioned
above sought the support of the deceased M. Chinna Pulla Reddy which he declined
for he claimed to be a staunch congressman committed to supporting the candidate
set up by his party. It so happened that A1 and A3 were both defeated at the
hustings.
4.
The
accused did not, according to the prosecution, reconcile to the defeat. Instead
they started nursing a grudge against M. Chinna Pulla Reddy who was in their view
the cause of their humiliation in the electoral battle. The animosity arising
out of the electoral debacle of the two accused persons provided the motive for
a murderous assault and resultant death of M. Chinna Pulla Reddy on 31st July, 2001
at village Sajjaladinne where the deceased -had established a slab polishing
factory in the name and style of Reddy & Reddy Slab Polishing factory.
5.
The
prosecution case is that the deceased Shri M. Chinna Pulla Reddy reached his house
at Tadipatri from his village in a Tata Sumo Jeep alongwith his son M. Sanjeeva
Reddy (PW1) and his nephews M. Rammohan Reddy (PW2) and M. Veeranjaneyuly (PW3).
One Hanumanatha Reddy and Mabu also accompanied them. From there the deceased
and his companions came to the Slab Polishing Factory at Sajjaladinne at about 5.00
p.m. Hardly had Ganur Shankar the driver of the jeep parked the jeep at the
factory office when A1 to A5 entered the factory from the main gate, with A2
carrying bombs and A1 & A3 to A5 carrying hunting sickles. Coming closer,
accused Gosu Jayarami Reddy (A2) hurled two bombs towards the Jeep out of which
one fell and exploded on the bonnet of the Jeep while the other fell on its left
side door and exploded thereby partially damaging the Jeep. The inmates of the Jeep
ran for safety in different directions.
The deceased also got
down from the jeep and started running towards -the office room of the factory,
when A-1 Gosu Ramchandra Reddy and A3 to A5 viz. Gosu Jayaranga Reddy, Gosu
Rameshwar Reddy and Gosu Rajagopal Reddy attacked him with the hunting sickles which
they were carrying. The prosecution case is that A1 Gosu Ramchanda Reddy hacked
the deceased on his head, while A3 Gosu Jayaranga Reddy assaulted him on his neck.
A4 Gosu Rameshwar Reddy and A5 Gosu Rajagopal Reddy also similarly hacked the deceased
resulting in the death of the deceased on the spot. The entire incident is said
to have been witnessed by M. Sanjeeva Reddy (PW1) from behind the workers room
and by M. Ram Mohan Reddy (PW2) from the Pial of the Southern door of the
office room. The incident was witnessed even by M. Veeranjane Reddy allegedly
from the side of the labour room.
6.
A
written complaint about the occurrence was lodged by M. Sanjeeva Reddy (PW1) on
the basis whereof FIR No.85/01 was registered in the Police Station at Tadipatri
at 6 p.m. on 31st July, 2001. The police arrived at the scene of occurrence at
about 7 p.m., conducted an inquest and sent -the dead body for post-mortem examination
to the Government hospital at Tadipatri. After completion of the investigation,
a chargesheet was presented against A1 to A5 and five others for commission of offences
punishable under Sections 147, 148 and 302 read with Section 149 IPC and Sections
3 and 5 of the Explosive Substances Act, before the Judicial Magistrate, Ist Class,
Tadipatri who committed the accused persons to the Court of Sessions at Anantpur.
The case was then made over to VIth Additional District and Sessions Judge, (Fast
Track) Anantapur before whom the accused persons pleaded not guilty and claimed
a trial.
7.
In
support of its case the prosecution examined PWs 1 to 10 apart from placing
reliance upon the documents marked Ex.P1 to P22 and MOs marked 1 to 20. Accused
Gosu Ramchandra Reddy (A1) and Gosu Jayaranga Reddy (A3) examined DW1 to DW4 apart
from placing reliance on documents marked D1 to D12, in support of the plea of
alibi raised in defence.
8.
By
its judgment and order dated 15th July, 2005, the Trial Court convicted A1 to A5
for commission of offences punishable under Sections 147, 148, 302 read with
Section 149 and Sections 3 and 5 of Explosive Substances Act and sentenced them
to suffer rigorous imprisonment for a period of one year for the commission of an
offence under Section 147 IPC, two years under Section 148 IPC and life
imprisonment for the offence punishable under Section 302 IPC. They were also convicted
and sentenced to ten years imprisonment for the offence punishable under
Sections 3 and 5 of the Explosive Substances Act. The sentences were ordered to
run concurrently. The Trial Court also directed payment of fine of Rs.10,000/-
each by the accused persons and a default sentence of three months simple
imprisonment for the offence under Section 302 IPC and a fine of Rs.1,000/-
each for the offence under Sections 3 and 5 of the Explosive Substances Act and
in default simple imprisonment for a period of one month. A6 to A10 were, however,
acquitted of the charges framed against them.
9.
Aggrieved
by the judgment and order passed by the Trial Court the appellants filed Criminal
Appeal No.1112 of 2005 before the High Court of Andhra Pradesh at Hyderabad.
The High Court after reappraisal of the entire evidence on record affirmed the
conviction and sentence awarded to the appellants and dismissed the appeal. The
present appeals by special leave assail the correctness of the said judgment
and order.
10.
We
have heard learned counsel for the parties who have taken pains to extensively refer
to the evidence adduced by the prosecution and the defence before the Trial
Court in a bid to show that the Trial Court as well as the High Court both have
failed to properly appreciate the same hence erroneously found the appellants
guilty of the offences alleged against them. Before we advert to the criticism levelled
against the inferences & conclusions drawn by the Courts below we need to point
out that an appeal to this Court by special leave under Article 136 of the Constitution
of India is not an ordinary or regular appeal against an order of conviction
recorded by a -competent Court. In an ordinary or regular appeal, the appellate
Court can and indeed is duty bound to re-appraise the evidence and arrive at
its own conclusions.
It has the same power
as the Trial Court when it comes to marshalling of facts and appreciation of
the probative value of the evidence brought on record. The accused can, therefore,
expect and even demand a thorough scrutiny and discussion of his case in all its
factual and legal aspects from the appellate Court, in the same manner as would
be required of a Trial Court. But once the appellate Court has done its task, no
second appeal lies against the judgment; under the Cr.P.C. whether to the High Court
or to this Court. A revision against an appellate judgment of a criminal Court is
maintainable before the High Court but the same has its own limitations. Suffice
it to say that the extra-ordinary jurisdiction of this Court under Article 136 of
the Constitution is not and cannot be a substitute for a regular appeal where
the same is not provided for by the law.
The scope of any such
appeal has, therefore, to be limited lest the spirit and the intent of the law that
does not sanction a second round of appellate hearing in criminal -cases, is
defeated and a remedy that is not provided directly made available indirectly; through
the medium of Article 136 of the Constitution. The decisions of this Court on the
subject are a legion. Reference to some of them would however suffice. In
Gurbaksh Singh v. State of Punjab (AIR 1955 SC 320) this Court held that it
cannot consistently with its practice convert itself into a third Court of facts.
In D. Macropollo and (Pvt.) Ltd. v. D. Macropollo and (Pvt.) Ltd. Employees'
Union and Ors. (AIR 1958 SC 1012) this Court declared that it will not disturb concurrent
findings of fact save in most exceptional cases. In Ramaniklal Gokaldas &
Ors. v. State of Gujarat (AIR 1975 SC 1752) this Court observed that it is not
a regular Court of appeal which an accused may approach as of right in criminal
cases.
It is an
extraordinary jurisdiction which this court exercises when it entertains an
appeal by special leave and this jurisdiction by its very nature is exercisable
only when the Court is satisfied that it is necessary to interfere in order to prevent
grave or serious miscarriage of justice. In Pallavan Transport Corporation Ltd.
v. M. Jagannathan (2001 AIR SCW -4786) this Court held that reassessment of
evidence in proceedings under Article 136 is not permissible even if another view
is possible. In Radha Mohan Singh alias Lal Saheb and Ors. v. State of U.P.
(AIR 2006 SC 951) this Court declared that re-appreciation of evidence was
permissible only if the Trial Court or the High Court is shown to have committed
an error of law or procedure and conclusions arrived at are perverse.
This Court further
held that while it does not interfere with concurrent findings of fact reached
by the Trial Court or the High Court, it will interfere in those rare and exceptional
cases where it finds that several important circumstances have not been taken into
account by the Trial Court and the High Court resulting in serious miscarriage
of justice or where the trial is vitiated because of some illegality or irregularity
of procedure or is otherwise held in a manner violating the rules of natural
justice or that the judgment under appeal has resulted in gross miscarriage of justice.
(See also Bhagwan Singh v. State of Rajasthan (AIR 1976 SC 985), Suresh Kumar
Jain v. Shanti Swarup Jain and Ors. (AIR 1997 SC -2291) and Kirpal Singh v.
State of Utter Pradesh (AIR 1965 SC 712).
11.
It
is in the light of the above pronouncements of this Court evident that an appeal
by special leave against the judgment and order of conviction and sentence is not
a regular appeal against the judgment of the Trial Court. The appellant cannot
seek reversal of views taken by the Courts below simply because another view
was possible on the evidence adduced in the case. In order that the appellant may
succeed before this Court, it must be demonstrated that the view taken by the
Trial Court or the appellate Court for that matter is affected by any
procedural or legal infirmity or is perverse or has caused miscarriage of
justice.
12.
It
is now our task to determine whether the order of conviction and sentence recorded
by the courts below suffers from any such infirmity as is mentioned above so as
to justify interference with the same in exercise of our extra ordinary
jurisdiction. On behalf of the appellants it was argued that the alleged motive
behind the killing of the deceased Midde Chinna Pulla Reddy has not been
-established. The Trial Court has according to the learned counsel rejected the
plea of political rivalry being the driving force behind the incident in question.
The High Court was, argued the learned counsel for the appellants, in error in reversing
that finding and holding that the prosecution had established the existence of
political rivalry as the motive for the murder of the deceased. Absence of a strong
motive was a circumstance, that according to the learned counsel rendered the entire
prosecution story suspect, the benefit whereof ought to go to the appellants.
13.
It
is settled by a series of decisions of this Court that in cases based on eye
witness account of the incident proof or absence of a motive is not of any
significant consequence. If a motive is proved it may supports the prosecution version.
But existence or otherwise of a motive plays a significant role in cases based on
circumstantial evidence. The prosecution has in the instant case examined as
many as five eye witnesses in support of its case that the deceased was done to
death by the appellants. The depositions of Shri M. Sanjeeva Reddy (PW1), Shri
M. -Rammohan Reddy (PW2), Shri Veeranjaneyu (PW3), Shri D. Dastnagiramma (PW4)
and Shri Eswaraiah (PW5) have been relied upon by the prosecution to substantiate
the charge framed against the appellants. If the depositions giving the eye witness
account of the incident that led to the death of late Shri Midde Chinna Reddy
are indeed reliable as the same have been found to be, by the Trial Court and
the first appellate Court, absence of a motive would make little difference.
14.
Having
said that we need to examine the reasoning of the Trial Court while it dealt with
the question of motive - which finding of the trial Court has been reversed by
the High Court. The trial court has on the question of motive observed: "In
the present case 3 eye witnesses are there and their evidence is supported by
PW.4. Even though both parties accused group and the deceased group belonged to
different political parties, but actually there is no evidence that there are pending
civil litigations between them. In the MPTC Elections the accused No.1 and 3
contested for the post of MPTC on behalf of the Telugu Desam Party and the deceased
supported the congress back ground candidates and who succeeded and the accused
persons were defeated in the elections. Except that there is no material to
state that - the deceased and his sons got enmity towards the accused
persons"
15.
The
above finding was manifestly erroneous. Not only was there evidence on record in
the form of depositions of Shri M. Sanjeeva Reddy PW1 and Shri M. Rammohan Reddy
PW2, the alleged political rivalry between the two sides was mentioned even in
the first information report lodged by PW1 in writing. The complaint and so also
the FIR registered on the basis of the same clearly referred to the reason why the
deceased had been killed. It attributed the reason for the ghastly murder of
the deceased to his refusal to support the candidature of A1 and A3 in the ZPTC/MPTC
elections. It was not, therefore, a case where motive was introduced as an
improvement in the prosecution story. It was on the contrary a case where right
from the stage of lodging of the FIR till recording of depositions in the court
political rivalry was said to be the motive for the killing of the deceased. Shri
M. Sanjeeva Reddy PW1, who was also the first informant had stood by his
version regarding the political rivalry being the cause for the murder of his
father Chinna Pulla Reddy. So had M. Rammohan Reddy PW 2 -who had also in no uncertain
terms said that the rivalry between the two groups was the reason why the
deceased was done to death. The High Court appreciated the above evidence and
rightly observed: "From the above evidence, it is clear that there was political
rivalry between the accused party and the deceased party and the accused bore
grudge against the deceased on account of the refusal of the deceased to support
them in the elections and on account of the defeat of A-1 and A-3 in the ZPTC
elections."
16.
There
is, in our opinion, no reason much less a compelling one for us to take a view
different from the one taken by the High Court. The prosecution case that these
accused appellants had a motive for the commission of the offence alleged
against them thus stood satisfactorily proved.
17.
It
was next contended that the incident in question having occurred at 5 p.m. the first
information report lodged at 6 p.m. was delayed for which delay, the prosecution
had offered no explanation. It was further contended that the jurisdictional
Magistrate had received a copy of the FIR only at 1.05 a.m. Keeping in view the
-distance between the place of occurrence and the Police Station as also the
distance between the Police Station and the jurisdictional Magistrate's court the
delay in lodging of the report and in sending a copy thereof to the Magistrate were
significant which would in the absence of any valid explanation render the entire
prosecution case, suspect.
18.
There
is in our view no merit even in this submission of the learned counsel. A
report regarding the commission of a cognizable offence, lodged within an hour
of the incident cannot be said to be so inordinately delayed as to give rise to
a suspicion that the delay - if at all the time lag can be described to be
constituting delay, was caused because the complainant, resorted to
deliberations and consultations with a view to presenting a distorted, inaccurate
or exaggerated version of the actual incident. No suggestion was made to PW1
the first informant that he delayed the lodging of the report because he held
any consultation in order to present a false or distorted picture of the
incident. A promptly lodged report may also at times be inaccurate or distorted
just as a delayed report may -despite the delay remain a faithful version of what
had actually happened.
It is the totality of
the circumstances that would determine whether the delay long or short has in
any way affected the truthfulness of the report lodged in a given case. The
credibility of a report cannot be judged only by reference to the days, hours or
minutes it has taken to reach the police station concerned. Viewed thus the credibility
of the report was not affected on account of the so called delay of one hour in
lodging of the complaint. So also, the receipt of the report by the magistrate at
1.05 a.m. was not so inordinately delayed as to render suspect the entire prosecution
case especially when no question regarding the cause of delay was put to the
Investigating Officer. If delay in the despatch of the First Information Report
to the Magistrate was material the attention of the Investigating Officer ought
to have been drawn to that aspect to give him an opportunity to offer an
explanation for the same. How far was the explanation acceptable would then be a
matter for the court to consider.
19.
It
was then contended by the learned counsel for the appellants that there were certain
erasures and interpolations in the first information report which according to them
suggested a manipulation and raised a doubt about the registering of the first
information report. A similar contention, it appears was raised even before the
Trial Court, who repelled the same holding that the only discrepancy in the first
information report was a correction of FIR No.84 to First Information Report No.85.
The Trial Court further held that the said correction was wholly immaterial and
did not affect the prosecution version. Before us, an attempt was made by the learned
counsel for the appellants to argue that the correction made in the first information
report altered the FIR number from 86 to 85 meaning thereby that the first information
report had been ante timed. There is no merit in that contention either.
The trial court has
in our opinion correctly found that the over-writing in the First Information Report
was limited to converting the digit 4 to digit 5 in the number assigned to the
FIR. This correction is visible to the naked eye. The contention that the
correction had the effect of converting -FIR No.86 into FIR No.85 is not supported
by the record. As a matter of fact the correction simply altered the FIR number
from 84 to 85. In the circumstances, unless the correction is shown to be of any
significance, nothing much turns on the same. Learned counsel for the appellants
were unable to demonstrate that the correction of the First Information Report No.84
to 85 suggested any distortion in the prosecution case or prove that the first
information report was false or ante timed. It is also significant that neither
in the memo of appeal before the High Court nor in the special leave petition
filed before this Court had the appellants pursued the challenge or urged the alleged
interpolation in the First Information Report as a ground warranting rejection
of the prosecution case.
20.
That
brings us to the substance of the prosecution case which essentially comprises the
depositions of M. Sanjeeva Reddy PW1, M. Rammohan Reddy, PW2 and M. Veeranjaneya
Reddy PW 3. According to M. Sanjeeva Reddy PW 1, late Shri Chinna Pulla Reddy,
Ramamohan Reddy, Hanumantha Reddy, Veeranjaneya Reddy, Mabu -and driver Shankar
started from Kavetimasumdram in a Tata Sumo Jeep driven by Shankar on 31st of
July, 2001 and reached Tadipatri at 4 p.m. From the house of the deceased at Tadipatri
the aforesaid persons including the deceased travelled to Sanjjaladinne village
and reached the slab polishing factory by 5 p.m. The driver of the vehicle drove
through the gate of the factory premises and then reversed the same for parking
the jeep facing the gate.
It was at this stage that
A1 to A5 came running through the gate into the factory. A2 was armed with bombs
while the other accused were armed with hunting sickles. A2 hurled two bombs,
one of which fell on the bonnet of the Jeep and exploded while the other bomb
exploded on the left side door of the vehicle. All of them were terrified by the
sudden attack and started running away for shelter. The witness ran towards
labour room of the factory on the west side and stood behind the workers room
from where he witnessed the occurrence. He saw that when the deceased was
running to the office room of the factory Gosu Ramachandra Reddy A1 hacked him
with a hunting sickle on his head. Similarly Gosu Rajagopal Reddy A3 also
-hacked the deceased on the neck. Because of the blows sustained by the deceased
he fell down at a distance of 3 ft. from the office room. A3 instigated the
others to kill the deceased whereupon A4 and A5 also hacked the deceased. The witness
was stunned out of fear and remained frozen at the place from where he watched the
occurrence, while the accused left the place from the same gate carrying their
hunting sickles stained with blood.
21.
The
witness goes on to state that PW 3 M. Veeranjaneya Reddy also came to the spot
after the occurrence and saw the dead body of the deceased. Mabu and Ramamohan
Reddy were sent by the witness to the Village to inform his mother and brother.
The witness himself went to the Police Station and lodged a report at Tadipatri
Police Station, Ex.P1. The police arrived at the spot and conducted an inquest
between 7 p.m. to 10 p.m. with the help of electric lights and two petromax lamps.
At the inquest the watchman told the witness that he had seen A6 to A10 outside
the factory gate. It was on the basis of the said statement that the names of
A6 to A10 were also -included as persons responsible for the commission of the
offence. Despite extensive cross examination nothing material has been
extracted from the witnesses which could possibly discredit his testimony nor was
any specific contention based on the said statement made in the courts below or
urged before us.
22.
To
the same effect are the depositions of PW 2 and PW3 who too have fully supported
the prosecution case and the narrative given by PW1. The version of these
witnesses who according to the prosecution were eye witnesses to the occurrence
has been accepted as truthful by the trial court as also the High Court in appeal.
In the absence of any material contradiction in the version given by these witnesses
and in the absence of any other cogent reason rendering the depositions
unacceptable, we see no reason why the said version should not be accepted as
truthful.
23.
Deposition
of D. Dastagiramma PW4 has also substantially supported the prosecution version
although she was declared hostile by the public prosecutor on account of her
refusal to identify the accused. According to -this witness she was staying in the
slab factory of the deceased Pulla Reddy in a labour room. Pulla Reddy had come
to the factory along with PW1, PW2 and PW3. Hanumantha Reddy and Mabu, Driver
Shankar was also with him in the white jeep. They reached the factory at 5 p.m.
The Jeep was reversed by the driver and parked facing towards the gate, when five
persons came running from the gate. One person was having bombs while the remaining
were armed with hunting sickles. Both the bombs thrown at the jeep exploded
whereafter PW 1 to PW 3 ran away. PW 1 had run towards the Labour room while
the five assailants surrounded the deceased China Pulla Reddy. At this stage
the witness ran away due to fear to the back side of the factory and left for
Ramapuram her parents' village.
24.
Eswaraiah
PW5 was also a labourer who was working in the factory of the deceased Pulla
Reddy. This witness was taking care of the poultry in the factory owned by the
deceased. Since some of the birds had escaped from the factory, he was chasing them
back into the factory. At -about 5 p.m. he heard a loud noise from the factory.
He returned to the factory within 10 minutes and found that Pulla Reddy had
been hacked and was lying dead in a pool of blood at a short distance from the
jeep. This witness saw PWs 1 to 3, Mabu, Hanumantha Reddy near the dead body but
did not see the assailants as they had run away from there.
25.
It
is evident from the depositions of the three witnesses referred to above that the
deceased Pulla Reddy had come to his factory accompanied by PW 1 M. Sanjeeva Reddy,
PW 2 M. Rammohan Reddy, PW 3 M. Veeranjaneya Reddy and Shankar the driver of the
sumo jeep and that the deceased was killed inside the factory by five persons. The
depositions of PWs 4 and 5 substantially supports the prosecution case and proves
the presence of the deceased Pulla Reddy, and PWs 1, 2 and 3 apart from Shanker,
the driver of the Sumo jeep inside the compound of the factory at 5 p.m. on 31st
July, 2001 when the incident took place. Once the presence of PWs 1, 2 and 3
was established by their own depositions which have remained unshattered -and the
supporting evidence of PWs 4 and 5, the version given by the said three
witnesses cannot be brushed aside lightly.
26.
Mr.
Ranjit Kumar, learned Sr. counsel appearing for A1, A4 and A5 contended that since
the accused persons belonged to a different village in the absence of any
evidence to show, that they knew that the deceased was visiting his factory it would
be difficult to believe that they were lying in wait to assault and kill him. There
is indeed no evidence to show that the accused persons knew about the visit of the
deceased to his factory but that does not in our view, make any material difference.
What is important is that the stone polishing factory was owned by the deceased
and was not far from his house at Tadipatri.
A visit by the owner of
the factory was not so improbable that the accused could not expect the same especially
when those with a sinister design like a cold blooded murder, could lie in wait
if necessary to strike at an opportune time. The fact that a factory owned by
Accused No.1 was in close proximity to the factory of the deceased, made it all
the -more easy for the assailants to carry out their nefarious design. That the
deceased had been killed in the factory, is not even questioned by the defence
as indeed the same cannot be questioned in the light of the deposition of the witnesses
examined by the prosecution. The depositions of the eye witnesses PWs 1 to 3
are clear and free from any embellishments hence completely reliable. It is also
difficult to believe that the witnesses who are closely related to the deceased
would screen the real offenders and falsely implicate the appellants only because
of the political rivalry between the two groups.
27.
Mr.
Kumar next argued that the weapons allegedly used by the appellants were said to
be hunting sickles, whereas the injuries found on the person of the deceased were
said to have contused margins which could not be caused by a hunting sickle. It
was also argued that while the eye witnesses had attributed to A3 an injury on
the neck of the deceased no such injury was reported by the doctor in the post
mortem examination. This was, according -to the defence, a major contradiction,
that would render the prosecution story doubtful.
28.
It
is true that PW 1 has in his depositions attributed an injury to A 3 which
according to the witness was inflicted on the neck of the deceased. It is also true
that the post mortem examination did not reveal any injury on the neck. But this
discrepancy cannot in the light of the evidence on record and the fact that it is
not always easy for an eye witness to a ghastly murder to register the precise number
of injuries that were inflicted by the assailants and the part of the body on
which the same were inflicted.
A murderous assault
is often a heart-rending spectacle in which even a witness wholly unconnected to
the assailant or the victim may also get a feeling of revulsion at the gory sight
involving merciless killing of a human being in cold blood. To expect from a witness
who has gone through such a nightmarish experience, meticulous narration of who
hit whom at what precise part of the body causing what kind of injury and
leading to what kind of fractures or flow of how much blood, is to expect too much.
Courts need to be -realistic in their expectation from witnesses and go by what
would be reasonable based on ordinary human conduct with ordinary human
frailties of memory and power to register events and their details.
A witness who is
terrorised by the brutality of the attack cannot be disbelieved only because in
his description of who hit the deceased on what part of the body there is some mix
up or confusion. It is the totality of the evidence on record and its
credibility that would eventually determine whether the prosecution has proved
the charge against the accused. Having said that let us see the nature of the injuries
that were noticed by Dr. Satyanarayana Reddy PW 6, who conducted the post mortem
on the deceased and examine whether the discrepancy pointed out by the defence makes
any real dent in the prosecution case. The witness has described the injuries
as under:
EXTERNAL INJURIES 1. Incised
injury over left side of head Fronto parietal area 15 cms x 2 cms x bone deep.
Bones fractured. Brain matter seen out side through the injuries. Margins
contused. 2. Incised injury over the occipital area of head on right side 8 cms
x 2 cms. bone deep, margins contused. - 3. Incised injury over left side of face
6 cms. x 2 cms. muscle deep. Margins contused. 4. Incised injury over the lower
Jaw extending on both side of face 16 cms. x 3 cms. x bone deep, margins
contused, mandible fractured. 5. Incised injury over lower lip on left side 7
cm x 2 cm. muscle deep, margins contused. 6. Incised injury over right clavicle
6 cm x 2 cm bone deep, margins contused, right clavicle fractrured. 7. Incised
injury over left shoulder 6 cm x 2 cm muscle deep, margins contused. 8. Incised
injury over left side of chest below clavicle 15 cm x 2 cm cavity deep, margins
contused.
Lung tissue protruding
over through the injury. 9. Incised injury over the palm of left hand near
wrist 2 cm x 1 cm tissue deep, margins contused. 10. Incised injury over the palm
of left hand near little finger 2 cm x 1 cm tissue deep, margins contused. 11. Incised
injury over the dorsal aspect of left forearm upper 1/3 5cm x 2 cm muscle deep,
margins contused. 12. Incised injury over the back of left scapular area 4 cm x
2 cm muscle deep, margins contused. Deep dissection and internal examination: Skull:
fracture of left frontal and left parietal bone present. Fracture of occipital bone
right side fractured. Brain underlying the fractured bones extensively injured.
Intracranial haemorrhage present. Hyoid normal fracture of mandible present. Fracture
of right clavicle present. Thorax on left side fracture of ribs from 1 to 3 present.
Lung tissue protruding out through the injury. Left lung extensively injured.
Extravasations of blood
about 800 cc present in left thoracic cavity. Heart chambers empty. Right lungs
normal and pale. Stomach contain digested food, Liver normal and pale. Kidneys normal
and pale. Extravasations of blood surrounding all external injuries. The injuries
are ante mortem in nature. Rectum empty. Bladder empty. Opinion : The deceased
would appear to have died of shock and haemorrhage due to multiple injuries, - especially
injuries to vital organs. Brain: caused by injuries No.1 and 2 and injury to left
lung caused by the injury No.8 and died 15 to 18 hours prior to post mortem
examination. Injuries would have been caused by sharp weapons like sickles. The
P.M. certificate is Ex.P.3. Injuries 1 to 12 are ante mortem in nature. The above
injuries sufficient to cause to death in ordinary course of nature."
29.
Two
aspects are clear from the above. First is that injury no.6 (supra) was found over
the right clavicle. The injury was bone deep and the clavicle fractured. A
witness who has a momentary view of the incident which is over within a few minutes
may not have his testimony rejected only because instead of describing the
injury to the clavicle he described the same to be an injury to the neck. It is
not a case where the witness attributes an injury to the assailants on a vital part
like the head but no such actual injury is found in that region of the body. Instead
an injury is found say on the leg or any other portion of the body. It is a
case where the witness describes the infliction of the injury in a region which
may not be accurate from the point of view of human anatomy but which is
capable of being -understood in a layman's language to be an injury in an area
that is proximate.
30.
The
other aspect is that the deposition of the doctor establishes the fact that the
injuries noticed on the dead body of the deceased had been inflicted by sharp cutting
instrument like sickles. It is further stated by the doctor that in all
probabiliting the deceased might have died on receipt of the first injury itself.
There is nothing in the examination of the eye-witnesses from which the court
may infer that the injuries found in the post mortem examination of the deceased
could not have been caused by sharp edged sickles that the accused were
carrying with them and are said to have used in the course of the incident. The
argument that there is a material contradiction between the ocular evidence on
the one hand and the medical evidence on the other must therefore fail and is
hereby rejected.
31.
It
was then contended on behalf of the appellants that the prosecution had dropped
Shankar the driver of the Sumo Jeep and Hanumantha Reddy who according to the
-defence witnesses could have given true account of incident if at all they were
accompanying the deceased on the date of the occurrence. It was argued by Mr. Sushil
Kumar, learned senior counsel for the appellants that the non-examination of
Shankar, the driver of the Jeep assumes importance because according to the
prosecution version the driver had after entering the factory premises reversed
the Jeep and parked it facing the gate. This part of the case could be supported
only by the driver and since the driver had been given up at the trial the
prosecution case that the vehicle was parked facing the gate, must be deemed to
have remained unproved.
The parking of the vehicle
in the manner suggested by the prosecution was according the learned counsel
material in as much as unless the prosecution introduced the theory of the
vehicle being parked by the driver facing the gate the so-called eye-witness to
the occurrence would have had no opportunity to see the accused persons entering
the factory with bombs and sickles. We regret to say that there is no merit in
that contention either. It is well-settled that every witness that the prosecution
may have listed in the charge--sheet need not be examined. It is entirely in
the discretion of the Public Prosecutor to decide as to how he proposes to
establish his case and which of the listed witnesses are essential for
unfolding the prosecution story. Simply because more than one witnesses have
been cited to establish the very same fact is no reason why the prosecution must
examine all of them.
The prosecution in the
present case examined three eye-witnesses to prove the incident in question.
There was no particular fact that could be proved only by the deposition of the
driver and not by other witnesses. That Shanker was the driver of the vehicle at
the relevant time, and that he reversed the vehicle and parked it facing the gate,
were facts regarding which each one of the occupants of the vehicle was a competent
witness. PWs. 1, 2 and 3 have in their depositions testified that the vehicle was
parked facing the gate by Shankar driver of the vehicle after reversing the
same. So also the non-examination of Hanumantha Reddy does not, in our opinion,
make any dent in the prosecution case or render the version given by three
eye-witnesses who have supported the prosecution version unworthy of -credit. As
a matter of fact once the deposition of the eye-witnesses examined at the trial
is accepted as trustworthy the non-examination of other witnesses would become
inconsequential.
This Court in Nirpal
Singh v. State of Haryana (1977) 2 SCC 131 stated the principles in the
following words: "The real question for determination is not as to what is
the effect of non-examination of certain witnesses as the question whether the witnesses
examined in Court on sworn testimony should be believed or not. Once the
witnesses examined by the prosecution are believed by the Court and the Court comes
to the conclusion that their evidence is trust-worthy, the non-examination of
other witnesses will not affect the credibility of these witnesses. It is not necessary
for the prosecution to multiply witnesses after witnesses on the same point. In
the instant case, once the evidence of the eye witnesses is believed, there is an
end of the matter."
32.
To
the same effect are the decisions of this Court in State of U.P. v. Hakim Singh
and Ors. (1980) 3 SCC 55, Nandu Rastogi alias Nandji Rastogi and Anr. v. State
of Bihar (2002) 8 SCC 9, Hem Raj & Ors. v. State of Haryana (AIR 2005 SC
2010), State of M.P. v. Dharkole @ Govind Singh and Ors. (AIR 2005 SC 44) and Raj
Narain Singh v. State of U.P. & Ors. (2009) 10 SCC 362.
33.
It
was argued on behalf of the appellants that the failure of the Investigating
Officer to seize the Jeep must give rise to an adverse inference and discredit
the entire prosecution story. That submission needs notice only to be rejected.
The vehicle in question was not used for the commission of the offence. It was,
therefore, not necessary to seize the vehicle. All that the prosecution was
required to establish was that the Jeep was indeed damaged on account of
throwing of bombs one of which had exploded on the bonnet of the vehicle and
the other on the left side of its door.
The Investigating
Officer had taken care to have the damaged portions of the vehicle, cut, seized
and sent to the Forensic Science Laboratory for opinion. The report from the FSL
marked Ex.P20 supports the prosecution case and proves that explosive mixture
used in manmade bombs was found in the same. The relevant part of the report is
as under: "The above items are analysed and Potassium, Chlorate, Chloride,
Arsenic, Sulphide, Sulphate are found in both of them. - The above radicals are
the resultant components and residues of explosive Potassium Chlorate, Arsenic Sulphide
and Sulphur after explosion. This explosive mixture is used in countrymade
bombs of throw type."
34.
In
the light of the above the non-seizure of the Jeep made no difference to the
veracity of the prosecution case.
35.
Time
now to examine the plea of alibi set up by accused Nos.1 and 3. In support of their
plea the accused have examined four witnesses viz. Thirupalu DW1, Radha Kumari,
DW2 and Prem Nagi Reddy DW 3 and Shri Jageeshwara Reddy D.W.4 as witnesses. Based
on the depositions of the said witnesses the defence has attempted to prove
that A1 and A3 were at Anantpur from 11 a.m. to 5 p.m. on the date of the incident,
and were not therefore responsible for the murder of deceased Pulla Chinna Reddy
committed at 5 p.m. on 31st July, 2001. The Trial Court has carefully examined
the evidence adduced by defence but rejected the plea that accused A1 and A3
were at Anantpur at the time of the incident.
The High Court has
affirmed that finding upon a reappraisal of the evidence on record. What we
have to examine is whether the -concurrent finding on a question which is a
pure question of fact namely whether accused A1 and A3 were at Anantpur at the time
of incident leading to the murder of deceased Pulla Chinna Reddy took place in his
stone polishing factory at Village Sajjaladinne warrants any interference. We may
at the threshold say that a finding of fact concurrently recorded on the
question of alibi is not disturbed by this Court in an appeal by special leave.
The legal position in this regard is settled by the decision of this Court in Thakur
Prasad v. The State of Madhya Pradesh AIR 1954 SC 30 Vol. 41 "The plea of alibi
involves a question of fact and both the courts below have concurrently found
that fact against the appellant. This Court, therefore, cannot, on an appeal by
special leave, go behind that concurrent finding of fact."
36.
That
apart the plea of alibi has in our opinion been rightly rejected by the courts
below even on an appraisal of the evidence on record. We may in this regard briefly
refer to the defence evidence adduced in support of the plea. Thirapalu, DW1 an
Agriculturist from Tadipatri Mandal, -deposed that 3= acres of land owned by him
was compulsorily acquired by the Government for a public purpose. No compensation
for the acquisition was however paid to him. It was in that connection that the
witness had approached A1 for help before the RDO at Anantpur. According to the
witness A1 and A3 apart from Krishna Reddy, Gopal Reddy and one Ranga Reddy
reached Anantpur and went to the house of Paritala Ravindra to attend a meeting
organized at his residence.
After the meeting, they
went to a hotel and then to the R&B Bungalow at Anantpur to meet the
Hon'ble Minister Sri Nimmala Kristappa. After A1 had spoken to the Minister for
a few minutes they went to the office of RDO where they met some persons
including Radhakumari, DW2 who had come there in connection with the grant of a
fair price shop licence. Accused No.1 entered the RDO office and talked to one
Allabakash, the clerk in the said office, who dealt with payment of
compensation and from there they went to Panchayatraj office and then to the office
of Superintendent of Police when Jagadeeswara Reddy, DW4 informed them about
the murder of Pulla China Reddy. According to the -witness, the police detained
A3 in the SP office itself. Thereafter the witness returned to his village.
There are in
deposition of this witness certain striking features that need to be noticed. The
witness had neither any notice nor any other record suggesting acquisition of
land owned by him which was said to be the reason for his alleged visit to
Anantpur. Secondly, A1 and A3 had according to the witness gone to the office
of the RDO and talked to one Allabaksh posted as a clerk there. No application
to the RDO or any other authority for that matter was made either by the witness
or by the accused on his behalf. Surprisingly the witness does not even talk to
Allabaksh the clerk although it was his case in connection with which the accused
had accompanied him to that office. So also there was no evidence to
corroborate the version given by the witness that there was any meeting at the house
of Partitala Ravindra, nor any evidence to show that any Minister had visited
Anantpur on that day.
37.
Radhakumari
DW2 in her deposition stated that she had studied up to 10th standard and had
made an -application for the grant of a fair price shop licence. On the date of
the incident she is said to have come to Anantpur in connection with an interview
for the grant of the licence and met A1 in the RDO office along with DW1
Thirapalu. The witness further claimed that she was selected for the grant of
licence in pursuance of the interview held on 31st July, 2001.
38.
In
her cross examination the witness admitted that she did not receive any appointment
letter for the fair price shop dealership at Sajjaladinne. She denied the suggestion
that no interview was fixed for 31st July, 2001 before the RDO Anantpur. The witness
admitted that the dealership was cancelled but denied that the cancellation was
because of malpractices alleged against her. What is significant is that the witness
did not have any supporting material like a copy of the application for the
grant of fair price shop licence or a copy of the interview call inviting her for
interview on 31st July, 2001 or a copy of the letter informing her that she was
selected and appointed pursuant to the said interview. In the absence of any
-evidence to corroborate the version of the witness that she was indeed at Anantpur
on 31st July, 2001, the courts below were justified in rejecting the same.
39.
Prem
Nagi Reddy, DW3 also claims to be at Anantpur on 31st July, 2001. He was there in
connection with a Review meeting allegedly fixed by the High Command of TDP. The
meeting was held in the House of Paritala Ravindra at Anantpur. A1 and A3 and few
others accompanied them to SP office at about 5 pm.
40.
In
cross-examination the witness admitted that he was a prominent TDP leader and
had contested, though unsuccessfully, the assembly elections against Shri J.C.
Diwakar Reddy thrice. That the deceased Chinna Pulla Reddy was a close
associate of Diwakar Reddy and that Pulla Reddy was a senior congress party leader
in Tadipatri Mandal was also admitted by this witness. That A1 and A3 had
contested MPTC elections as TDP candidates and got defeated at the hands of the
congress party candidate was also admitted just as he admitted that there was no
record to prove that a TDP review meeting on 31st July, 2001 was -held at Anantpur.
The witness also admitted having been convicted in crime No. 17 of 1999 under
Section 324 r/w Section 140 IPC and having been sentenced to undergo rigorous
imprisonment for one year and a fine but acquitted by the Appellate Court. He expressed
ignorance about his being an accused in crime no.58 of 1988 under Section 307
r/w 149 IPC, Sections 3 and 5 of E.S. Act and Section 25(1)(b)(a) of Arms Act
of Yadiki P.S. He admitted that he was an accused person in crime No.59 of 1992
under Sections 3 and 5 of E.S. Act registered in police Station Tadipatri,
Crime No.1 of 1993 under Section 7(1) (a) of Crl. Law Amendment of Act, Crime
No.127 of 1994 under Section 136 of R.P. Act and Crime No.4 of 1996 under
Section 307 r/w Sections 149 IPC and 3 & 5 of E.S. Act registered in town
Police Station Tadipatri.
41.
The
courts below have rejected the testimony of this witness also and in our
opinion rightly so. The close affiliation of this witness to the party to which
they belong and his antecedents, suggesting involvement in several criminal
cases registered against him, was reason enough -for the courts to disbelieve his
version also and consequently reject the plea of alibi raised by the accused in
their defence.
42.
In
the circumstances we see no reason to interfere with the view taken by the
courts below. These appeals accordingly fail and are hereby dismissed.
................................J.
(V.S. SIRPURKAR)
................................J.
(T.S. THAKUR)
New
Delhi
July
26, 2011
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