REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 951 OF 2001

Akula Veera Venkata Surya Prakash @ Babi            ….Appellant  

Versus

Public Prosecutor, High Court of A.P. ….Respondents

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the Andhra Pradesh  

High Court partly allowing the appeal filed by the State and setting aside the acquittal so far as the  

present  appellant  is  concerned while  upholding the  acquittal  in  respect  of  rest  of  the  accused  

persons.  

2. A-1 to A-9 were tried for the offences under section 120B, 148, 149, 324, 307 & 302 of  

Indian Penal Code, 1860 (in short the ‘IPC’) for having caused the death of one Abbai Reddy and  

injuries to Yedukondalu (P.W.1) and Mohammed Basha (P.W.2). The trial Court acquitted all the  

accused on 12.7.1999. State preferred appeal before the High Court. The Appeal was allowed in  

respect of A-1 alone and he was convicted for offence under Section 302 IPC and sentenced to  

suffer imprisonment for life. The appeal in respect of A2 to A-9 was dismissed. Challenging the  

same, Criminal Appeal has been preferred by A-1.

3. Prosecution version in nutshell is as follows:

On 4.11.1993 at  about  7.00 P.M.  Abbai  Reddy (hereinafter  referred to  as  the ‘deceased’)  and  

Yedukondalu (P.W.1) came in the car driven by P.W.2 Basha. While coming to the turning near to  

the house of the deceased, the accused persons Al to A8 stopped the car and broke the front glass  

of  the  car.  Then they broke open the doors  of  the car.  All  the accused  persons  attacked the  

deceased Abbai Reddy with knives. Some accused attacked P.W.1 also, P.W.1 and PW-2 managed  

to escape after receiving injuries. P.W.3 to 6 are the close relative of the deceased. Abbai Reddy on  

hearing the cries came out of the house and saw these accused running away from the scene after  

attacking  the deceased.

P.W.1 made a telephonic call to P.W.22 S.I. of Police and informed about the incident. P.W.22  

after giving information to higher official came to the scene of offence along with P.W. 15 the  

professional  photographer.   He took  photograph of  the  victim deceased,  car  and the  scene  of  

offence. Then the deceased and P.W.1 were taken to the hospital. There the Doctor (not examined)  

declared Abbai Reddy dead. PW-1 was examined by PW-16 Doctor on 4.11.1993 at 9.00 p.m. The  

PW-16  doctor  issued  Ex.P53  wound  certificate.  Thereafter,  PW-22,  S.I.  Police  obtained  the  

statement Ex.P1 from PW-1 at 9.30 p.m. and registered the case at about 10.00 p.m. under Section  

302 IPC and other offences. PW-23 the Inspector of Police took up the investigation and conducted  

the inquest on 5.11.1993. PW-17 conducted autopsy and issued post mortem certificate Ex.P54.  

P.W.23 Inspector of Police continued the investigation and arrested the accused. During the course  

of investigation Identification parade was conducted by P.W19 Magistrate, P.W.1 identified A1,  

A2 and A4. P.W.2 identified A4 alone. After completing the  investigation P.W.23 filed the charge  

sheet.  

P.W. 1 to 23 were examined on behalf of the prosecution. Ex.P-1 to P-94 marked. D.W.1 was

examined on behalf of accused. Ex.D-1 to D4 were marked.

Al is the son of A9, A2 is the clerk under A-9, A3 to A5 are close friends of Al, A6 to A8 are  

friends of A2, A9 is A l's father. There was a Quarry Business rivalry between A9 on the one hand  

and deceased Abbai Reddy on the other hand. The land belonging to one Haribabu was put to sale.  

Both A9 as well as deceased were trying to purchase the same, and ultimately deceased Abbai  

Reddy purchased the land at higher price. Due to this there used to be frequent quarrels between A9  

and deceased. P.W.1 Yedukondalu is  business partner of deceased. P.W.2 Basha is  the driver.  

P.W.3 is the elder brother, P.W.4 is the friend, P.W.5 is the brother-in-law and P.W.6 is the wife of  

the deceased Abbai Reddy.

The trial Court disbelieved the case of the prosecution and acquitted all the accused. However, the  

High Court in the appeal filed by the State set aside the order of acquittal in respect of Al and  

convicted him for offence under Section 302 IPC and confirmed the acquittal in respect of other  

accused.

4. It is relevant to take note of the grounds on which the High Court sustained acquittal of  

A2 to A9. According to the prosecution the occurrence had taken place near to the house of the  

deceased from where P.W.3 to 6 had witnessed the occurrence. The evidence of PW.3 to 6 is not  

reliable because P.W.3 to 6 could not have seen the occurrence from the deceased house as the  

scene of offence has been purposely shifted from the actual scene of  offence to a place near to the  

market yard from the place near to the house of deceased in order to plant P.W.3 to 6 as eye  

witnesses.  The  evidence  of  P.W.15  Photographer  who  had  photographed  the  actual  scene  of  

offence would show that the scene of offence is a place opposite to the market yard which is far  

away from the house of deceased.

5. Now the reasons which weighted with the High Court to set aside acquittal of A1 need  

to be noted. Since P.W.1 has given the names of Al in Ex.P.1 FIR and he is an injured witness, his

evidence alone is believed to convict A-1 for Section 302 IPC.  

6. Learned  counsel  for  the  appellant  submitted  that  the  High  Court  disbelieved  the  

evidence of P.W.3 to 6 mainly on the basis of the evidence of P.W.15. If the finding given by the  

High Court in the light of the evidence of P.W.15 Photographer that P.W.3 to 6 is unreliable,  

would falsify the entire prosecution case. As such P.W.1 also cannot be believed also.  

7. The specific findings of the High Court are as follows :  

(1) The exact scene of offence is in front of market yard which is far away from the house  

of deceased and not the place near to the house of the deceased.

(2) P.W.15 has taken the photograph of the dead body inside the Car. So deceased must  

have been attacked and murdered inside the car itself.

(3) Scene of offence is purposely shifted from the Market yard to place near to the house of  

deceased in order to plant P.W.3 to 6 relatives of the deceased as eyewitnesses. Since the scene of  

offence  is  different  place,  P.W.3  to  P.W.6  could  not  have  seen  the  occurrence.  So  they  are  

unreliable.

8. The Special Leave Petition filed against acquittal of A2 to A9 by the State has been  

dismissed on 16.9.2002. So this finding has become final. As such the finding of the High Court as  

well as evidence of P.W.15 Photographer on the basis of which the said finding was given would  

completely falsify the case of prosecution. So P.W.1 also cannot be believed.

9. To this effect, the following finding has been given by the trial Court.  

“PW-15 Gathula Syamalarao, Photographer and his evidence shows that  on 4.11.1993 he took  photos in connection with the death of deceased Abhai Reddy at Korukonda road. In this Chief  examination he stated the exact place is opposite to market yard and it was done in the evening  time. He took Exs. P.17 to 34  photos  and Exs. P.35 to 52 are its negatives. He further says that he  took the photos on the dead body of the deceased  and the car. In the cross examination he says that

he took more than 20 photos in the crime and also stated the police have shifted the position of the  dead body of the deceased so as to suit better appreciation. But the photograph was taken while the  dead body was inside the car”.

10. Learned counsel for the respondent supported the judgment of the High Court.  Analysis  

of  the  evidence  in  the  background  of  conclusions  of  the  High  Court  would  reveal  following  

aspects. According to P.W.1 both in the FIR and evidence, the car was stopped near to the house of  

deceased and then car glasses were broken and both deceased and P.W.1 were attacked inside the  

car and thereafter the deceased was dragged out of the car, again attacked and pushed him on the  

ground. If P.W.15's evidence to the effect that scene of offence is different and dead body was  

found inside the car is accepted, the evidence of P.W.1 to the effect the occurrence took place near  

to the deceased house and deceased was dragged out of the car and again attacked and he fell down  

on the ground and thereafter the deceased was taken to hospital is false. As a matter of fact P.W.5  

and PW-6 who are eyewitness to the occurrence had stated that Abbai Reddy died on the spot.  

Similarly P.W.15 would state he had taken photograph of dead body.

11. Coming  to  the  evidence  of  PW.1,  in  Ex.P.1,  he  had  stated  that  when  the  car  was  

reaching the house of deceased, A-1 was following the car in the scooter, but in evidence he had  

stated  that  Al  was standing there at  Ramakrishna Mission  and Al  and others  stopped the  car.  

Though in Ex.P.1, P.W.1 stated that all the eight accused attacked the deceased, in evidence P.W.1  

had given special  role  to A-1 stating that  A-1 first  attacked the deceased and 5 other accused  

thereafter attacked the deceased. According to P.W.15, P.W.5 & P.W. 6 Abbai Reddy died on the  

spot.  In Ex.P.1 there is  no reference about the death of deceased. In evidence P.W.1 and P.22  

would state that the deceased was taken to hospital for treatment. This is false especially as P.W. 1  

gave telephonic information about the murder of Abbai Reddy. P.W.1 in his evidence stated that he  

had given all  the  names of  accused  in  Ex.P-1  Complaint.  This  is  not  correct  because  he  had  

mentioned only A-1 and 8 others. P.W.22 also stated that P.W.1 did not give all the names. P.W.1  

did not choose to give the statement immediately when P.W.22 reached the scene. P.W.22 also did

not care to take statement from P.W.1. Even though P.W.22 came to scene at 8.00 P.M, along with  

photographer, the complaint was registered at only 10.00 P.M. after shifting the deceased from the  

scene of offence. The reason appears to be that at that time Police was not able to fix the identity of  

person who had attacked. That is the reason why no names have been given in Ex.P.1 except A-1.  

PW-1 gave telephone information stating that the deceased was murdered. PW-22 confirms the  

information. But PW-1 says he has not given any such information.    

12. There are various other infirmities. There is no reason as to why the damaged car was  

not seized. P.W.23 admits that in spite of instruction to S.I. Police the same was not seized. P.W.23  

Inspector of Police admits that blood stain found in the car was not scrapped and sent for the  

chemical experts. No reason is given for the same. Though it is claimed that the blood stained earth  

and sample has been taken from the new scene of offence, Ex.P.94 shows it did not contain blood,  

it  was  soil  and  ash.  If  the  deceased  was  lying unconsciously,  there  is  no  reason  as  to  why  

photographer was asked to take photograph. There is no reason as to why P.22 did not get the  

complaint from P.W.1 before taking deceased to hospital. P.W.1 identified Al, A2 and A4 in the  

Identification Parade before P.W.19 Magistrate, but P.W.2 identified only A4.

13. The inevitable conclusion is that the appeal deserves to be allowed which we direct. The  

bail bonds executed to give effect to the order of bail passed by this Court on 29.11.2001 shall  

stand discharged.

……..………………………………J. (Dr. ARIJIT PASAYAT)

………..…………………….............J. (Dr. MUKUNDAKAM SHARMA)          

        New Delhi, May 05, 2009