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CASE NO.: Appeal (crl.)  1097 of 2006

PETITIONER: Bathula Nagamalleswara Rao & Ors

RESPONDENT: State rep. by Public Prosecutor

DATE OF JUDGMENT: 22/04/2008

BENCH: P. P. Naolekar & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T REPORTABLE

CRIMINAL APPEAL NO. 1097 OF 2006

Lokeshwar Singh Panta, J.

1.      Bathula Nagamalleswara Rao, Bathula Laxminarayana,  Bathula Seshaiah, Narne Subba Rao and Morakonda Bapa  Rao have filed this appeal against the judgment and order  dated 10th April, 2006 passed by the Division Bench of the  High Court of Judicature, Andhra Pradesh at Hyderabad in  Criminal Appeal No. 942 of 2004 confirming their conviction  and sentences imposed upon them by the trial court.   

2.        In all, 12 accused, namely, B. Nagamalleswara Rao (A- 1), B. Laxminarayana, (A-2), B. Gopalan, (A-3), B. Subba Rao  (A-4), B. Sreenu (A-5), B. Venkateswara Rao (A-6),  Jonnalgadda Ramu (A-7), Jonnalagadda Suresh (A-8), B  Kotaiah (A-9), B. Seshaiah (A-10), Narne Subba Rao (A-11) and  Morakonda Baparao (A-12) were charged and tried by  Additional Sessions Judge, Guntur, for offences under  Sections 148/449/302/302 r/w 149/302 /302 r/w 149 and  427 of the Indian Penal Code [for short ’IPC’] for committing  murder of two persons namely,  Marchavarapu Venkatarao  (deceased no.1) and Thalluri Sambasiva Rao (deceased No.2)  in village Uddandarayunipalem.                         3.        The VII Additional Sessions Judge, Guntur, by  judgment dated 31st May, 2004 convicted all the accused  (except A-3) and sentenced them as under:-  

Accused       Nos. Conviction by Trial Court

       Sentence Imposed by Trial Court  A-1 U/s. 302 r/w. 149, 302, 148 & 449 Life Imprisonment

A-2     302 r/w. 149, 302, 148 & 449 Life Imprisonment

A-4

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   302 r/w. 149 & 449 Life Imprisonment

A-5     302 r/w 149 & 449  Life Imprisonment

A-6     302 r/w 149, 302 & 449  Life Imprisonment

A-7     302 r/w 149 & 449  Life Imprisonment

A-8     302 r/w 149 & 449  Life Imprisonment

A-9     302 r/w 149 & 449  Life Imprisonment

A-10     302 r/w 149, 302 & 449  Life Imprisonment

A-11     302 r/w 149, 302 & 449 Life Imprisonment

A-12     302 r/w 149, 302 & 449 Life Imprisonment

4.      The accused were also imposed a fine of Rs. 500/- each  on each count and in default of payment of fine, to suffer S.I.  for six months and they were also sentenced to suffer R.I. for a  period of five years and to pay a fine of Rs. 1000/- each for the  offence under Section 449 of the IPC and in default of payment  of fine to undergo S.I. for a period of six months.  All the  substantive sentences were ordered to run concurrently.    5.        The trial court, however, acquitted A-4, A-5, A-7 to A-9  for the offences under Section 427, IPC.  A-3 died during the  pendency of the trial and trial against him, accordingly, stood  abated.       

6.      Brief facts necessary for disposal of this appeal are as  follows:-         All the accused, deceased no.1, deceased no.2 and other  material witnesses are all residents of village  Uddandarayunipalem within the jurisdiction of Thulluru Police  Station.  In the last panchayat elections held in the village  area, deceased No. 1 was elected as Sarpanch of the village as  a candidate of Telugu Desam Party by defeating his rival  Congress Party candidate namely, Puli Babu who had the  support of Bathula Venkateswara Rao (A-6).  It was alleged  that one Tadikoda Venkateswara Rao s/o Pedalakshmi  Narayana approached deceased No. 1 for settlement of the  pending land dispute between him and A-6.  Deceased No. 1  alleged to have advised both the parties to approach the village  elders and if their dispute still remained unsettled, then they  could approach the competent court of law.  It was alleged

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that A-6 bore grudge against deceased no.1 as the latter was  trying to support Tadikolana Venkateswara Rao in the said  matter.

7.      On the day of occurrence i.e. 18th July, 1996 around 6:30  p.m. Rama Mohan Rao, son of A-6 was murdered at the  outskirts of the same village.  The accused persons believed  that Tadikolana Venkateswara Rao might have murdered the  son of A-6.  On the same day at about 7:30 p.m. M.  Shakuntala (PW-1), wife of deceased no.1, was standing on the  verandah of their house, while deceased no. 1 and deceased  no.2 were chit-chatting with M. Srihari (PW-2) and B.  Sathyanarayana (PW-3) - both friends of deceased no.1, in  front of the house of deceased no.1, they noticed a group of  men armed with dangerous weapons moving towards the  house of deceased no.1.  On the advice of PW-3, deceased no.1  and his wife PW-1 rushed inside the house and bolted its door  from inside.  In the meanwhile, all the twelve accused  trespassed into the house and committed mischief by breaking  the telephone and other valuable articles lying in the house of  deceased No. 1 and in the process, the accused noticed  deceased no.1 concealing himself in the bedroom.  The  accused attacked deceased no. 1 indiscriminately with lethal  weapons.  It was the case of the prosecution that A-3 stabbed  deceased No.1 with a crow bar thrice below stomach and in  left side of his abdomen.  A-1 assaulted deceased no.1 with a  knife on both sides of the neck and chest.  A-2 hacked on the  right upper arm and A-3 cut the right wrist of deceased no.1  with a crow bar.  Thereafter A-1 to A-3 continued inflicting  injuries on other parts of the body of deceased no.1 in the  presence of his wife PW-1 and as a result of severe injuries,  Venkateswara Rao deceased No.1 died at the spot.  It was  alleged that the remaining accused chased Thalluri Sambasiva  Rao deceased No. 2 who tried to escape from the scene of  occurrence when A-6, A-10, A-11 and A-12 attacked deceased  no.2 with axe, spears and crow bars.  As a result of multiple  injuries suffered by deceased No. 2 upon his body, he died in  the bathroom of the house of deceased No.1.  The whole  incident was witnessed by P.Ws. 1, 2 and 3.  On seeing the  accused persons mercilessly attacking and assaulting  deceased No. 1 and deceased No. 2 with dangerous weapons,  both PWs-2 and 3 got frightened and they escaped from the  scene of occurrence by jumping over the wall of the house.   A- 4, A-5, A-7, A-8 and A-9 in the process damaged the doors,  window glass panes of the house, motorcycle, television, etc. of  deceased no.1.  All the accused thereafter left the scene of  occurrence.

8.      On receiving the information about the incident, P.  Maqbool Khan (PW-11) Sub-Inspector of Thulluru Police  Station, rushed to the scene of occurrence and noticed the  dead bodies of deceased No. 1 and deceased No. 2 lying in the  house of deceased No.1.  He recorded the statement of P.W. 1  at about 9:00 p.m (Exhibit P-1).  On the basis of Exhibit P.1,  PW-8 \026 Head Cosntable P. Mallikarjuna Rao of Thulluru Police  Station registered First Information Report (F.I.R.) in Crime  No. 63/1996 under Exhibit P-5.  Thereafter, K. Babu Rao (PW- 13), Circle Inspector of Police, took up investigation and  conducted Panchnama (Exhibit P-2) of the scene of occurrence  in the presence of B. Subba Rao (PW-5), held inquest over the  dead bodies of both the deceased in the presence of M. Subba  Rao (PW-6) and Puli Sambayya (PW-7) and prepared a joint  Inquest Report (Exhibit P-4).  Then, P.W. 13 got the scene of  occurrence photographed through J. Rambabu (PW-9).  On  receipt of requisition from the Police on 19th July, 1996, Dr. K.

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Mahipal Reddy (PW-12) held autopsy over the dead bodies of  deceased nos. 1 and 2 and issued post mortem certificates  [Exhibits P9 and P10[ respectively.  He opined that both the  deceased appeared to have died due to multiple injuries.  On  6th August, 1996 at about 8:00 a.m. P.W. 11 arrested A-7, A-8  and A-9.  On 23rd August, 1996, he arrested A-2 and A-11  whereas A-1, A-3, A-4, A-6 and A-10 were arrested by PW-11  on 8th September, 1996.

9.      After completion of the investigation and after receipt of  the post mortem report, charge sheet was filed against the  accused persons in the Court of Additional Munsif Magistrate,  Mangalagiri.  Additional Munsif Magistrate committed trial to  the learned Sessions Judge, Guntur who, in turn, made over  the trial of the case to the court of 2nd Additional Sessions  Judge, Guntur.  The learned Additional Sessions Judge,  Guntur framed charges under Section 148 IPC against A-1, A- 2, A-4 to A-12 and under Section 449 of IPC against A-6, A-10  to A-12 and under Section 302 read with Section 149 IPC  against A-4, A-5, A-7 to A-9.  All the accused persons pleaded  not guilty to the charges and claimed to be tried.   Subsequently, the trial of the case was transferred to VII  Additional Sessions Judge, Guntur.

10.     The prosecution in support of its case examined as many  as 13 witnesses.  In their statements recorded under Section  313 of the Code of Criminal Procedure [for short ’Cr.P.C’], the  accused denied their involvement in the crime and pleaded  false implication on suspension.  In defence, the accused have  examined Thummala Veeraiah Chowdary (D.W.1), Machiraju  Koti Surya Prakasharao (D.W. 2), Yethirajula Srinivasarao  (D.W.3) and Garji Rambabu (D.W. 4).  The trial court, on  scrutiny of the evidence on record, held the accused guilty of  the aforesaid offences and, accordingly, convicted and  sentenced them.  

11.     Being aggrieved, the accused filed the appeal under  Section 374 Cr.P.C. before the High Court and the High Court,  confirmed the conviction and sentence imposed upon A-1, A-2,  A-10, A-11 and A-12 by the trial court.  The High Court,  however, has acquitted A-4, A-5, A-6, A-7, A-8 and A-9 of all  the charges levelled against them.  Now, A-1, A-2, A-10, A-11  and A-12 are appellants before us in appeal.

12.     We have heard the learned counsel for the parties and  with their assistance examined the judgment of the High Court  and re-appraised the entire material evidence placed on  record.  Mr. P.S. Patwalia, learned senior Advocate appearing  on behalf of A-1, A-2, A-9, A-11 and A-12, assailed the  judgment of the High Court inter alia  contending :- (i)     that the High Court erred in not considering the fact  that there is unconscionable delay of 16 hours in  sending the FIR (Ex. P5) to the Magistrate especially  when the Police had taken the statement of PW-1 at  7.30 p.m. itself regarding the commission of the  offences on the basis of which the FIR was recorded at  9.00 p.m. in the Police Station.   According to him, the  unexplained delay in sending the FIR to the Magistrate  created a serious doubt about the correctness and  truthfulness of the prosecution case.   He emphasized  that the FIR on the face of it indicates that the same  was prepared after due deliberation and consultation  between PW-1, and other interested witnesses in  connivance of the police.  He submitted that if FIR was  in existence at 11:00 p.m. on 18.07.1996 in which the

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names of A-8 and A-9 were mentioned as assailants,  they could have been arrested by the Investigating  Officer on the spot itself as the evidence shows that  they were present at the scene of occurrence when  police reached the place and this circumstance would  also prove that the FIR was a tainted, anti-timed and  anti-dated document prepared by the police around  3:00 p.m.  on 19.07.1996. (ii)    that the testimony of PW-1, wife of deceased No.1 is  wholly unreliable, unbelievable and inherently  improbable and has been wrongly believed by the  Courts below.  If she was shocked into silence at the  time of incident of murder it could not have been  possible for her in the normal course to have given  precise details of the injuries being inflicted by each of  the accused with a particular weapon on different  parts of the body of deceased No. 1.   According to the  learned counsel, PW -1 is not an eye witness to the  incident of murder and she has been projected later on  by the Investigating Officer after receipt of the injuries  statements from the doctor who conducted the post  mortem over the dead bodies of both the deceased,  otherwise PW-1 could not have accurately detailed the  precise injuries on the body of deceased No.1 in her  statement (Ex. P1) (iii)   that the High Court has disbelieved the testimony of  PW-3 in regard to the presence of A-4 to A-9 at the  scene of occurrence and their participation in the  commission of crime and, therefore, they were given  benefit of doubt.  The conviction of A-1, A-2, A-10, A- 11 and A-12 relying upon the same set of evidence of  P.W. 3 being one of the accused in FIR No. 64/1996  for the murder of A-6, therefore, is not proper and  sustainable as PW-3 is positively an interested witness  to frame the appellants in a false case.  

13.      Mr. R. Sundaravardhan, learned senior counsel for the  respondent-State on the other hand contended that the  reasons given by the trial court as well as by the High Court  for recording the order of conviction of the appellants are  based upon proper appreciation of evidence led by the  prosecution in the case.  According to the learned counsel, the  courts below have accepted the explanation of the prosecution  for causing delay in submitting the FIR to the Magistrate and  therefore, this Court shall not be obliged to disturb the finding  of facts recorded by Courts below.  He then submitted that  merely because P.W. 1 and P.W. 3 the two eye witnesses are  relative and friend respectively of deceased no.1, their  testimony cannot be disbelieved and discarded on this premise  only as their evidence corroborated by other evidence is  cogent, clear and satisfactory with the hypothesis of the guilt  of the appellants and this Court should be slow to interfere in  the well-reasoned and well-merited judgments of the courts  below.   

14.       We have given our anxious consideration to the rival  contentions of the learned counsel for the parties.  The  arguments put forward by Mr. Patwalia although are extremely  attractive, yet we find ourselves unable to agree with the same.   It is no doubt true that FIR (Ex. P5) came to be recorded at  11:00 a.m. on 18.07.1996 in the Police Station by Head  Constable P. Mallikajunarao (PW-8), who was posted at the  relevant time at Police Station, Thulluru. The incident of  murder of deceased No. 1 and deceased No. 2 took place at  7:30 p.m. on 18.07.1996 as per Complaint (Ex. P1) made by

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PW-1 to Sub-Inspector Maqbool Khan (PW-11), which was sent  to Police Station, Thulluru, through PC No.2896 for  registration of the FIR.  It has come in the cross-examination  of PW-8 that the distance between Police Station, Thulluru,  and Mangalagiri where the Magistrate holds court is about 20  kms.  PW-8 categorically stated that FIR (Ex. P5) was  registered by him at 11:00 p.m. on 18.07.1996 and even if the  copy of the FIR was to be sent to the Magistrate during the  mid-night, it was not possible for the Police Constable to take  the FIR and deliver the same to the Magistrate at Mangalagiri  on the intervening night of 18/19.07.1996 as there was no  bus service available during the night time between the two  places.  The trial court in its judgment observed that the FIR  was received by the Magistrate at 4.00 p.m. on 19.07.1996.   The trial court has noticed but not accepted the contention of  the learned counsel for the accused persons that in these  circumstances the statement of PW-1 (Ex. P1) might have been  recorded at 3.00 p.m. on 19.07.1996 at village  Uddandayunipalem and from the village itself the statement  might have been sent to Mangalagiri in a police vehicle and  therefore, the same was received by the Magistrate at 4.00  p.m. on 19.07.1996.  We have independently scrutinized the  evidence of PW-1 and PW-11, the Investigating Officer.  It is  their clear and consistent testimony that statement (Ex. P1)  was recorded at 9.00 p.m. on the night of 18.07.1996 after the  incident of murder had occurred at 7.30 p.m.  It is undisputed  fact that one Ramamohanarao, son of A-6, was murdered on  the same evening at about 6.00 or 6.30 p.m. at the outskirts of  village Uddandayunipalem.  It is the evidence of PW-11, Sub- Inspector of Police, that about 7.15 p.m. M. Venkatarao  informed him that his rival group of men armed with deadly  weapons was moving towards their village and on receiving the  information he along with other police personnel had  immediately proceeded to village Uddandayunipalem in a  private jeep for maintaining law and order.  PW, Head  Constable, in cross-examination, corroborated the version of  PW, Sub-Inspector of Police, that on 18.07.1996 around 7.15  p.m. on receipt of the information in regard to some incident of  violence in the village, P.W. 11 along with five staff members  left the Police Station for maintaining law and order in the  village.  PW-8 sent FIR (Ex. P5) to the Magistrate through PC  No.2896 who brought statement of PW-1 [Ex. P-1] at 11:00  p.m. to the Police Station.  PW-13, Circle Inspector of Police,  stated that on the mid night of 18/19.07.1996 at about 00.15  hours he received a copy of express FIR through PC No.2896  disclosing the incidents of murder of three persons in village  Uddandayunipalem.   The endorsement made on FIR (Ex. P5)  by the Magistrate on its bare perusal would reveal that he  received a copy of the F.I.R. through PC No.1293 and not  through PC No.2896 as deposed by P.W. 8.  It appears from  the record that PC No.2896 handed over a copy of express FIR  to PW-13, Circle Inspector of Police, at village  Uddandayunipalem at 00.15 hours on the intervening night of  18/19.07.1996 and then constable PC No.1293 might have  been deputed to deliver the FIR (Ex. P5) to the Magistrate at  Mangalagiri.  The trial court in its judgment observed that  keeping in view the serious and tense situation in the village  because of the murder of three persons on the same evening,  the entire staff of Police Station was deputed to maintain law  and order problem there.  Out of the victims, one was the son  of A-6, ex-Sarpanch of the village, whereas deceased No.1 was  the sitting Sarpanch of the same village.  Taking these  circumstances into consideration, the trial court held that  there was no delay in lodging the FIR with the police and delay  in sending a copy of the FIR to the Magistrate was a result of

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shortage of police personnel who could not be deputed to  deliver the same to the Magistrate during the night of  18.07.1996 or in the early hours of 19.07.1996.   The High  Court has re-examined the evidence on record and held that  the delay in sending FIR to the Magistrate was not deliberate  or intentional, but because of some technical errors committed  by the Investigating Officer during the course of investigation  of the case which could not be found fatal to the case of the  prosecution, especially when the Investigation Officer was not  cross-examined on this point.  

15.       Mr. Patwalia, in support of the submission that the FIR  (Ex. P5) was anti-timed and anti-dated and delay of 16 hours  in sending the FIR to the Magistrate would cast a serious  doubt of its correctness, has relied upon the decisions of this  Court in Thulia Kali v. The State of Tamil Nadu [(1972) 3 SCC  393]; Arjun Marik & Ors. v. State of Bihar [(1994) Supp. (2)  SCC 372];  Meharaj Singh (L/Nk.) v. State of U. P. [(1994) 5  SCC 188]; Thanedar Singh v. State of M. P. [(2002) 1 SCC 487]  and Kunju Muhammed Alias Khumani & Anr. v. State of Kerala  [(2004) 9 SCC 193]. 16.       It is not in dispute that this Court in series of  judgments has repeatedly and consistently emphasized that  First Information Report in a criminal case is an extremely  vital and valuable piece of evidence for the purpose of  corroborating the oral evidence adduced at the time of trial.   The importance of the report can hardly be over- estimated  from the standpoint of the accused.  The object of insisting  upon prompt lodging of the report to the police in respect of  commission of an offence is to obtain early information  regarding the circumstances in which the crime was  committed, the names of the actual culprits and the part  played by them as well as the names of the eye-witnesses  present at the scene of occurrence and requirement of sending  the FIR to the Magistrate forthwith is to enable the Magistrate  concerned to have a watch on the progress of the  investigation.  In Thulia Kali v. State of Tamil Nadu (supra), it  is held that delay in lodging the First Information Report often  results in embellishment which is a creature of after-thought.   On account of delay the report not only gets benefits of the  advantage of spontaneity, danger creeps in of the introduction  of coloured version, exaggerated account of connected story as  a result of deliberation and consultation.  It is held that in  order to avoid all criticisms of the defence, it is therefore  essential that the delay in lodging of the First Information  Report should be satisfactorily explained.   

17.      In Arjun Marik & Ors. v. State of Bihar (supra), this Court  held that Section 157 of Cr.P.C. mandates that if, from  information received or otherwise, an officer in charge of Police  Station has reason to suspect the commission of an offence  which he is empowered under Section 156 to investigate, he  shall forthwith send a report of the same to the Magistrate  empowered to take cognizance of such offence upon a police  report.  Section 157, Cr.P.C. thus, in other words, directs the  sending of the report forthwith, i.e. without any delay and  immediately.  Further, Section 159 Cr. P.C. envisages that on  receiving such report, the Magistrate may direct an  investigation or, if he thinks fit, to proceed at once or depute  any other Magistrate subordinate to him to proceed to hold a  preliminary inquiry into the case in the manner provided in   the Code of Criminal Procedure.  The forwarding of the  occurrence report is indispensable and absolute and it has to  be forwarded with earliest despatch which intention is implicit  with the use of the word "forthwith" occurring in Section 157,

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which means promptly and without any undue delay.  The  purpose and object is so obvious which is spelt out from the  combined reading of Sections 157 and 159 Cr.P.C.  It has the  dual purpose, firstly to avoid the possibility of improvement in  the prosecution story and introduction of any distorted version  by deliberations and consultation and secondly to enable the  Magistrate concerned to have a watch on the progress of the  investigation.

18.       In Meharaj Singh (L/Nk.) v. State of U. P. (supra), this  Court held that delay in sending special report to the  Magistrate or failure to send copy of the FIR to the Medical  Officer along with dead body for post mortem and absence of  its reference in inquest report can give rise to an inference that  the FIR had been anti-timed and had not been recorded till the  inquest proceedings were over at the spot by the Investigating  Officer.   

19.       Again in Thanedar Singh v. State of M. P. (supra), this  Court held on facts that failure of the prosecution to clear  doubt regarding the date and time of recording of the FIR and  delay in sending FIR to Magistrate cast a serious doubt on the  correctness of the FIR.

20.       In Kunju Muhammed Alias Khumani & Anr. v. State of  Kerala [(2004) 9 SCC 193], this Court reiterated that the delay  in sending the FIR to the Magistrate without giving satisfactory  explanation creates a serious doubt about the prosecution  case.  In that case it was found: (a) the statement of PW-1 that  the complaint was signed on the mid night of 3.11.1991; (b)  FIR reaching the Jurisdictional Magistrate more than 36 hours  after the incident in question though the court is situated in  the same town; (c) the evidence of the doctor as to the  presence of rigor mortis on the body of the deceased indicating  death must have occurred much earlier than 8.15 to 8.30 a.m.  on 03.11.191 and (d) recording in the inquest report (Ex. P6)  that the body of the deceased when examined was found to be  cold and frozen.  In the circumstances noticed above, the  Court held that, delay of more than 36 hours in sending the  FIR to the Magistrate created a serious doubt about the  prosecution case and had found the accused persons entitled  for benefit of doubt.   

 21.     We have earlier pointed out that in the present case  there was a delay of about 16 hours in sending the FIR (Ex.  P5) to the Magistrate, but the explanation as recorded by the  trial court that the majority of the police personnel were  deputed in village Uddandarayunipalem for maintaining the  law and order situation which was too tense in view of the  murder of three men of the village on the same evening, we do  not find any cogent and convincing reason for doubting the  correctness and truthfulness of the FIR which was promptly  lodged in the Police Station at 9:00 p.m. in relation to the  murder of deceased No.1 and deceased No.2 at about 7:30  p.m.  The Investigating Officer in cross-examination denied the  suggestion of the defence that Ex. P1 was brought into  existence around 2:35 p.m. or 3:00 p.m. on the next day, i.e.  19.07.1996, after a good deal of consultations and  confabulations with the leaders of rival group of the accused  and particularly after observing the injuries on the dead body  of deceased No. 1.  He categorically stated that he recorded the  statement (Ex. P1) made by PW-1 between 9:00 p.m. to 10:00  p.m. on 18.07.1996 and on completion thereof, the same was  sent through P.C. No. 2896 to the Police Station for  registration of the FIR and after registration on the same

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constable brought the copy of the FIR to the scene of  occurrence at about 12:00 mid night and thereafter PW-11  took up further investigation of the case.  A suggestion of the  defence that his superiors also aided in fabrication of Ex. P1  and under their instructions he had not only anti-timed but  also anti-dated the FIR and planted witnesses and having  done so he deposed falsely against the accused persons, has  categorically been denied by him.

22.      The evidence of PW-1 was attacked by A-1, A-2, A-3, A- 10, A-11 and A-12 on the ground that her presence at the  relevant time on the spot on the day of occurrence was  doubtful as in the morning she had gone to the house of her  daughter at Vijayawada and was summoned after the incident  of murder for making the statement (Ex.P1) on the basis of  which FIR came to be registered.  We have independently  scrutinized the evidence of PW-1, wife of deceased No.1.  It is  her clear and consistent evidence that on 18.07.1996 at about  7:30 p.m. while she was standing at the verandah of her house  and her husband along with Talluri Sambasivarao (deceased  No.2), M. Srihari (P.W. 2), B. Satyanarayana (P.W. 3) and some  more persons were chit-chatting in front of their house, she  saw about 40 persons armed with dangerous weapons rushing  to their house and on seeing them, P.W. 3 asked her and her  husband Venkatarao to conceal themselves inside the house  otherwise they would be killed by the rival group men.   According to her, A-1, A-2, A-4 to A-12 along with A-3 came to  the verandah of their house and after breaking open the doors,  they caused damage to the T.V. and other articles lying in the  rooms.  A-3 was armed with crow-bar, A-1 was armed with  knife, A-2 was having an axe in his hand.  They entered into  their bedroom through the bottom portion of the door.  When  her husband was standing at the corner of the bedroom, she  requested A-1 to A-3 not to harm her husband.  A-1 pulled her  aside and A-3 stabbed her husband thrice with the crow-bar.   A-2 assaulted him on the right arm.  When her husband fell  down on the floor, A-1 to A-3 indiscriminately inflicted more  injuries on his body.  Thereafter, her mother-in-law knocked  at the door of the house and on opening the door she was  informed by her mother-in-law that A-6, A-10, A-11 and A-12  had murdered Talluri Sambasivarao (deceased No.2) in their  bathroom with crow-bars and axes.  The trial court as also the  High Court both have accepted the evidence of PW-1 in its  entirety without any suspicion and embellishment  The  deceased No.1 sustained as many as 26 injuries on his body  as noticed by Dr. K. Mahipal Reddy (PW-12) in post mortem  certificate (Ex. P10).  The cause of death of deceased No.1 in  the opinion of the doctor was due to multiple injuries  sustained by him with sharp-edged weapon.  Ex. P1, which  was the earliest version of the incident of murder narrated by  PW-1 to the police would reveal that she had categorically  named A-1, A-2, A-3 (A-3 died during the pendency of the  trial), A-10, A-11 and A-12 as assailants who mercilessly  inflicted multiple injuries on almost every part of the body of  her husband with lethal weapons resulting in his death.  The  evidence of PW-1 finds corroboration from the medical  evidence.  Despite lengthy cross-examination, nothing has  been elicited to discredit and discard her testimony, which has  remained unshattered and consistent.  A suggestion of the  defence that A-10 was unable to walk without assistance of  any person as he, at the relevant time, was aged about 70  years, has been denied by her.  She categorically reasserted  that firstly A-1 to A-3 encircled her husband and then A-1  assaulted him thrice with knife, while A-2 assaulted him on  the right fore-arm with an axe and again A-1 and A-3 one after

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the other inflicted more severe injuries on the body of her  husband with the weapons they were holding in their hands.   A series of suggestions were put to her by the defence: (a) that  on the morning of the day of the incident of murder of her  husband she had gone to Vijayawada to look after her  daughter Vasavi who was sick, (b) she was not present in the  village and that about 10:00 p.m. or 11:00 p.m. she was called  from Vijayawada, (c) after due deliberation and consultation  among her well-wishers and relatives, she got complaint (Ex.  P1) fabricated at about 2 0’ clock in the intervening night of  18/19.07.1996, (d) the contents of Ex. P1 were not stated by  her and she only subscribed her signatures thereon and (e) the  police also contributed their role in fabricating her statement  (Ex. P1) have emphatically and categorically been denied by  her.  She, however, admitted that A-6 is a leader of one group  in her village, but she denied that on account of ill-feelings  between two rival groups of the people in the village, a false  case was foisted against the appellants by her.  She also  denied the further suggestion that none of the appellants was  responsible for causing death of her husband or the death of  Sambasivarao, deceased no.2.

23.       The testimony of this witness has been corroborated by  PW-3, another eye-witness of the occurrence and PW-11, the  Investigating Officer.  The presence of PW-3 on the scene of  murder has fully been established.  It is the evidence of PW-3  that on 18.07.1996 at about 7.30 p.m. he along with PW-2,   deceased No.2 and few more people was present in the house  of deceased No. 1 and when they were chit-chatting in front of  the house, all the accused persons armed with crow-bars,  spears, axes and knives rushed to the house of deceased No.1  and on seeing them, he advised deceased No.1 and his wife  PW-1 to conceal themselves inside their house as he  apprehended some danger to the life of deceased No. 1.   PW-1  and deceased No. 1 went inside their house and bolted the  door from inside.  He saw that out of twelve accused persons  half of them had surrounded the house of deceased No.1 and  the remaining accused chased deceased No.2, who was  running to his house, which is at a distance of 10 yards from  the house of deceased No.1.  He saw A-6, A-10, A-11 and A-12  breaking open the door of the bathroom of deceased No. 1  where they killed deceased No.2 with crow-bars, axes and  spears.  In his presence, the police conducted inquest over the  dead body of both the deceased persons.  The High Court  found that deceased No.2 sustained more than 22 injuries on  his body as noticed by doctor in post mortem certificate (Ex.  P9).  According to the opinion of the doctor, the cause of death  of deceased No.2 was due to multiple injuries.  The High Court  has given the details of the injuries sustained by both the  deceased at pages 8 to 14 of the judgment.  We do not think it  necessary to reproduce the details of those injuries again in  this judgment for unnecessarily burdening the record as the  death of both the deceased due to the injuries sustained by  them on their bodies is not in dispute.  PW-3 also stated that  inquest on the dead bodies of deceased No. 1 and deceased  No. 2 was conducted by the police in his presence.  In spite of  lengthy cross-examination, his testimony has not been  shattered or impeached by the defence.  A suggestion of the  defence that for the past four days from the date of recording  of his statement in the court, he was tutored to give evidence  against the accused persons has categorically been denied by  him.  He has admitted that he was framed as an accused in  the murder of the son of A-6.   

24.       PW-2 in his deposition stated that at about 7.30 p.m.

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on 18.07.1996 he along with PW-3, deceased No.1, deceased  No.2 and some persons were chit-chatting in front of the  house of deceased No.1.  PW-1, wife of deceased No.1, was  sitting on a cot in the verandah.  At that time, a group of men  had gathered on the road side raising slogans near the house  of deceased No. 1.  PW-3 requested deceased No. 1 and his  wife PW-1 to conceal themselves inside the house.  They both  went inside the house and bolted the door of their house from  inside.   On seeing the accused persons armed with dangerous  weapons, he along with PW-3 made good their escape from the  scene of occurrence by jumping over the northern side  compound wall of the house of deceased No.1. On coming to  know about the arrival of police, he went to the house of  deceased No.1 and found deceased No. 1 and deceased No.2  lying dead in a pool of blood.  The inquest report of the dead  bodies of deceased No.1 and deceased No.2 was conducted  and prepared by the Investigating Officer in his presence.   

25.       The evidence of PWs-6 and 7 would go to show that they  were present on 19.07.1996 at about 3.00 a.m. when the  police conducted inquest on the dead body of deceased No.1  under Ex. P3 and on the same day at about 5.30 a.m., inquest  on the dead body of deceased No.2 was conducted under Ex.  P4.  Both these witnesses are mediators.  They stated that  deceased No.1 and deceased No.2 died as a result of fatal  injuries sustained by them.  Both these witnesses have  categorically stated about the descriptive particulars of the  scene of occurrence at the house of deceased No. 1.   

26.       D. Sivanagendramma (PW-4) is the wife of deceased  No.2.  It is her evidence that on receiving the information of  her husband’s death, she went to the house of deceased No.1  where she spotted her husband lying in a pool of blood in the  bathroom. Nothing substantial has been elicited from her  cross-examination by the defence to disbelieve and discredit  her evidence.    

27.       PW-11 is the Investigating Officer.  It is his evidence  that on 18.07.1996 around 7:15 p.m. he was informed on  telephone by M. Venkatarao (deceased No. 1), the then  Sarpanch of village Uddandarayunipalayem that a group of  men raising slogans and carrying dangerous weapons in their  hands was moving towards his house with clear intention to  commit offence and requesting the police to come to the village  to defuse the tense situation.  He, in turn, informed the  Inspector of Police, Amaravathi, through VHF and himself  alongwith staff members proceeded to the village to maintain  law and order problem.  The Inspector of Police, Amaravathi,  later on came to the village.  When he reached at the house of  M. Venkatarao, he found his dead body lying in a room and  also spotted the dead body of deceased No.2 in the bath room  of the house of deceased No.1.  On receiving necessary  instructions from Inspector of Police, P.W. 11 recorded the  statement (Ex. P-1) of P.W. 1 at about 9.00 p.m. and obtained  her signatures thereon.  He sent the said statement through  PC No.2896 to Police Station, Thulluru, and instructed PW-8,  who was in charge of Police Station, to register the case.  He  handed over the investigation to the Inspector of Police.  He  arrested some of the accused persons on different dates.  On  examination of the evidence of this witness, it stands proved  that he read over the statement (Ex. P1) to PW-1, who  admitted the contents thereof to be correct. 28.       The High Court, on re-examination and re-appraisal of  the evidence of PW-3, PW-11 and other evidence on record,  held that the presence of A-4 to A-9 on the scene of occurrence

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has not been proved by the prosecution by leading cogent,  satisfactory and convincing evidence to prove that the said  accused persons were the members of unlawful assembly and  shared common object with the other accused with an  intention to eliminate deceased No. 1 and deceased No.2.  The  evidence of P.W. 10 the then SDPO, Guntur, who partly  conducted the investigation of the case, would prove that on  the day of incident of murder, A-5 attended to the work of  general laboratory of Water Treatment Unit of VTPS situated at  a distance of 40 kms. from the scene of occurrence.  His  evidence would also disclose that A-5 was present in the  Thermal Power Station from 4.30 p.m. to 8.30 p.m. on the day  of occurrence which, according to the prosecution, took place  at about 7.30 p.m.  In these circumstances, the possibility of  A-5 participating in the commission of the crime has been  rightly ruled out by the High Court.  We find not an iota of  evidence on record to prove that A-7 and A-8 had shared the  common intention to eliminate deceased No.1 and deceased  No.2.  Nothing has been brought on record to show that they  were inimical against deceased No.1 and deceased No.2 so as  to cause their death.   The evidence against A-5 to A-9 was not  satisfactory and convincing to connect them both the  commission of the crime and, therefore, we have no hesitation  to accept the reasoning recorded and finding arrived at by the  High Court in acquitting A-4 to A-9 by giving them benefit of  doubt.   

29.       It is by now well-settled that mere relationship of the  witnesses cannot be the sole basis to discard or disbelieve  their evidence if it is otherwise found to be believable and  trustworthy.  However, when the Court has to appreciate the  evidence of any interested witness it has to be very careful in  weighing their evidence.  In other words, the evidence of an  interested witness requires greater care and caution while  scrutinizing his evidence.  The Court has to address to itself  whether there are any infirmities in the evidence of such a  witness; whether the evidence is reliable and trustworthy and  whether the genesis of the crime unfolded by such an incident  is probable or not.  If the evidence of any interested witness or  a relative on a careful scrutiny is found to be consistent and  trustworthy, free from infirmities or any embellishment there  is no reason not to place reliance on the same (see Arjun Marik  & Ors. v. State of Bihar [(1994) Supp. (2) SCC 372].   

30.       In Mehraj Singh v. State of U. P. (supra), this Court held  that testimony of interested witness cannot be rejected on the  sole ground of interestedness but should be subjected to close  scrutiny.   

31.       In Anil Sharma & Ors. v. State of Jharkhand [(2004) 5  SCC 679], this Court reiterated and re-emphasisd that the  testimony of related witness, if after deep scrutiny found to be  otherwise truthful and credible, cannot be discarded on the  sole ground of interested witnesses.  Again, in Bhimapa  Chandappa Hosamani & Ors. v. State of Karnataka [(2006 (11)  SCC 323], it has been held that credibility of the witness is to  be tested by reference to the quality of his evidence which  must be free of any blemish or suspicion, must impress the  court as wholly truthful, must appear to be natural and so  convincing that the court has no hesitation in recording a  conviction solely on that basis.

32.       In a recent decision, this Court in S. Sudershan Reddy  & Ors. v. State of A. P. [(2006) 10 SCC 163] held that  relationship is not a factor to affect the credibility of a witness.  

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It is more often than not that a relation would not conceal the  actual culprit and make allegations against an innocent  person.  Foundation has to be laid if plea of false implication is  made. In such cases, the court has to adopt a careful  approach and analyse the evidence to find out whether it is  cogent and credible.   

33.       Again this Court in Salim Sahab v. State of M. P. [(2007)  1 SCC 699] held that mere relationship is not a factor to affect  credibility of a witness.   To the same effect are the decisions  in State of Punjab v. Jagir Singh [(1974) 3 SCC 277], Lehna v.  State of Haryana [(2002) 3 SCC 76] and Gangadhar Behera v.  State of Orissa [(2002) 8 SCC 381]. 34.       The High Court no doubt has disbelieved some portion  of the evidence of P.W. 3 in regard to the presence of A-4 to A- 9 at the scene of occurrence on the grounds that A-5 was  present in the Thermal Power Station from 4.30 p.m. to 8.30  p.m. on the day of occurrence, therefore the possibility of A-5  participating in the commission of the offence could not be  ruled out.  The High Court has found no evidence against A-7  and A-8 on record to hold them guilty for the murder of  deceased No.1 and deceased No.2.  It is well-settled that the  Court can rely upon that part of the statement of the witness  which is cogent, trustworthy, consistent and believable for the  purpose of holding the accused guilty of the offence.  Simply  because the name of P.W. 3 finds mentioned in FIR for the  murder of son of   A-6, the cogent and credible testimony of  PW-3 holding A-1, A-2, A-10, A-11 and A-12 responsible for  the murder of deceased No.2 cannot be lost sight of on that  ground alone.  The presence of PW-3 on the scene of  occurrence has been fully established by the evidence of PW-1  and PW-2 and his name also finds mentioned as an eye  witness in the FIR which was lodged by P.W. 1 immediately  after the incident of murder.  The High Court has found a  portion of the evidence of P.W. 3 deficient in regard to the  involvement of A-1, A-2, A-10, A-11 and A-12 for committing  the offences levelled against them and accordingly given them  benefit of doubt.   It is settled that even if a major portion of  the evidence is found to be deficient, in case the residue is  sufficient to prove guilt of an accused, conviction can be  maintained.  It is the duty of the court to separate grain from  chaff.  Where chaff can be separated from grain, it would be  open to the court to convict an accused notwithstanding the  fact that evidence of some of the witnesses has been found to  be deficient.  Falsity of a particular material witness or  material particular would not ruin it from the beginning to the  end.  The maxim "falsus in uno falsus in omnibus" has no  application in India and the witnesses cannot be branded as  liars [see S. Sudershan Reddy and Ors. v. State of A. P. [(2006)  10 SCC 163]. 35.       Lastly, it was urged by Mr. Patwalia that the case of B.  Seshaiah (A-10) is an extremely hard case, who is now aged  about 87 years and is suffering from Parkinson’s disease  Hypertension, Diabetes with severe Calcific AV Stenosis, Mild  AR, Moderate MR and Anemia of some degree.  This apart, A- 10 has already undergone jail suffering for about three years  and, therefore, taking all these factors into consideration, his  sentence may be reduced to the period already undergone by  him.  We are afraid to accept this submission of the learned  counsel, because A-10 has been held guilty for being a  member of unlawful assembly and sharing common intention  with A-1, A-2, A-10, A-11 and A-12 to commit the murder of  deceased No.2. 36.       Having given our careful consideration to the  submissions made by the learned counsel for the parties and

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in the light of the evidence discussed hereinabove and tested  in the light of the principles of law highlighted above, it must  be held that the evaluation of the findings recorded by the  High Court do not suffer from any manifest error and mis- appreciation of evidence on record.  Hence, we agree with the  finding of the High Court that the A-1, A-2, A-10, A-11 and A- 12 are the real culprits and their conviction and sentences for  the offences punishable under Section 302 read with Section  149, Section 302 and Section 449 of the IPC are wholly  sustainable and justifiable.  37.       In the result, there is no merit in this appeal and it is,  accordingly, dismissed.    38.       B. Seshaiah (A-10) is on bail pursuant to the order of  this Court passed on 30.10.2006.  His bail bonds are  cancelled and surety is discharged.  He is directed to  surrender before the trial court within one month from the  date of this order.  The learned trial court shall remand him to  jail for serving out the remainder part of the sentences.  On  failure of B. Seshaiah to appear before the trial court within  the stipulated period, the learned trial court shall take  appropriate steps against A-10 in accordance with law.