REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1038 OF 2008

GAJULA SURYA PRAKASARAO … APPELLANT

VERSUS

STATE OF ANDHRA PRADESH … RESOPNDENT

J U D G M E N T

B. SUDERSHAN REDDY, J.

This appeal by special leave is directed against  

the Judgment rendered by a Division Bench of the Andhra  

Pradesh  High  Court  confirming  the  conviction  of  the  

appellant for the offences punishable under Sections 302  

and 307  of Indian Penal Code, 1860 (in short “IPC”).  

The High Court by the impugned judgment confirmed the  

judgment passed by the Principal Sessions Judge, Eluru  

convicting the appellant under Sections 302 and 307 of  

IPC and sentencing him to suffer imprisonment for life  

and rigorous imprisonment for seven years, respectively,

and further to pay a fine of Rs.1,000/- each and in  

default, to suffer simple imprisonment for a period of  

six months each.  

2. In the nutshell, the prosecution version which  

led to the trial of the appellant is as under:  

3. On the intervening night of 7th/8th April, 2002  

appellant went to the house of the deceased in  

Venkatayapalem village  with an intention to end  

the life of the deceased and knocked at the door  

of the deceased which  was opened by the wife of  

the  deceased,  Cherukuri  Srinukumari  (PW-3)  and  

the appellant-accused all of a sudden hacked and  

attempted  to  kill  her  by  inflicting  severe  

injuries  on her body, as a result of which she  

fell down and then he rushed towards the deceased  

who was sleeping and hacked him by inflicting  

severe injuries. The appellant after committing  

the offence escaped from the place of occurrence  

by bolting the door from outside.  The daughter  

of the deceased Sri Surekha (PW-4) aged about 9  

years  raised  hue  and  cry  upon  which  the  

neighbours  opened  the  door  from  outside  and  

informed Cherukuri Gangaraju (PW1) who is a close  

relation of the deceased who thereafter informed  

Gopalapuram  Police  Station  and  lodged  first  

information  report  at  about  4.00  a.m.  on  8th

April, 2002. A case was registered as Crime No.  

30 of 2002 under Sections 302 and 307 read with  

Section 34 IPC against unknown persons.

4.  The prosecution, in order to establish its case,  

examined  altogether  14  witnesses.   The  trial  

court upon appreciation of the evidence found the  

appellant guilty of the offences punishable under  

Sections 302 and 307 IPC and sentenced him to  

suffer  imprisonment  for  life  and  rigorous  

imprisonment  for  a  period  of  seven  years,  

respectively. The trial court mainly relied upon  

the evidence of PW-3 and PW-4. The High Court  

vide  its  judgment  dated  20th August,  2007  

dismissed  the  criminal  appeal  filed  by  the  

appellant and accordingly confirmed the judgment  

of the trial court. The High Court too relied  

upon the evidence of PW-3 and PW-4. Both courts  

below  found  that  the  appellant  attacked  the  

deceased with sharp edged weapon resulting in his  

death. The courts below also found the appellant-

accused  attempted  to  kill  PW-3  by  inflicting  

severe injuries on her body.

5. In this appeal, Shri M.N. Rao, learned senior  

counsel  for  the  appellant,  submitted  that  the  

evidence of the eye witnesses does not inspire  

any confidence as PW-3 made a lot of improvements

in her version and implicated the appellant for  

the first time only while deposing before the  

Court and never before during the investigation  

or in the first information report. The injured  

witness  (PW-3)  and  her  minor  daughter  (PW-4)  

never mentioned the name of the appellant while  

narrating  the  incident  to  their  neighbours,  

police or the Magistrate though the appellant was  

very well known to them.  It was submitted that  

Section  161  of  Code  of  Criminal  Procedure  

statement (08.04.2002) of PW-3 was clearly ante-

timed.  The  evidence  of  prime  witness  PW-3  is  

totally  unreliable  and  could  not  be  believed  

under  any  circumstances  as  in  her  cross-

examination  she  went  to  the  extent  of  

denying having given any statement (Ex. P-21) to  

the Magistrate (CW-1).

6. In  response,  Ms.  D.  Bharathi  Reddy,  learned  

counsel for the State submitted that the evidence  

of  eye  witnesses  is  clear  and  cogent.  The  

relationship of the witnesses with the deceased  

itself  cannot  be  a  ground  to  discard  their  

evidence.  Learned counsel submitted that what is  

relevant is the evidence of PW-3 and PW-4 in the  

court and not their statement under Section 161  

Cr.P.C.

7. We shall first deal with the contention regarding  

the  nature  of  evidence  of  PW-3  and  PW-4  to  

consider as to whether their evidence has been  

rightly  accepted  by  the  courts  below.  In  the  

process, we will not re-appreciate the evidence  

to substitute our view for that of the courts  

below  but  consider  as  to  whether  non-

consideration of certain important aspects of the  

case resulted in miscarriage        of justice.

8. It is an admitted fact that the deceased was a  

farmer and cultivating the lands belonging to one  

Satyam Ramachandra Laxmi Devi of Rytapuram which  

land was adjacent to the land of the appellant.  

The owner of the said land decided to dispose of  

her land admeasuring       01 acre and 54 cents  

and the deceased was willing to purchase the land  

at the rate of Rs.90,000/- per acre which price  

was much higher than the price offered by the  

appellant who also wanted to purchase the said  

land. The appellant is stated to have approached  

the deceased and demanded to cancel the agreement  

so that he would purchase the land at a lesser  

price than which was offered by the deceased. The  

deceased  despite  the  threats  proceeded  further  

and informed the landlady that he was ready with  

the balance sale consideration and required her

to execute a registered sale deed on 2.4.2002.  

The appellant was upset and developed a grudge  

against the deceased and in the process committed  

the  crime  on  the  intervening  night  of  7th/8th  

April, 2002. This is the motive suggested by the  

prosecution  for  the  appellant  committing  the  

crime.  The prosecution story itself shows that  

PW-3 and PW-4 very well knew the appellant and  

also  about  the  dispute  with  regard  to  the  

purchase of the land.  Yet this aspect is not  

stated by either of them and more particularly by  

PW-3 at any stage prior to her evidence in the  

court.

9. Be it noted that the first information report was  

lodged by one Cherukuri Gangaraju (PW-1) who is  

none other than a close relation of the deceased  

at about      4.00 a.m. on 8th April, 2002 in  

which he clearly stated that on the intervening  

night of 7th/8th April, 2002 at 2.00 A.M. “some  

unknown persons knocked the door of the house,  

his wife Srinukumari opened the door, two persons  

entered into the house of Cherukuri Gangaraju,  

hacked him with knife on his neck and also hacked  

Srinukumari  on  her  face  and  hands”.  That  

according  to  the  first  information  report  two  

unknown  persons  entered  into  the  house  and

committed the crime.  In his evidence he merely  

stated that he was informed by the villagers that  

the deceased was murdered, based on which he gave  

written  report  to  the  police  and  the  police  

reached at the scene of occurrence within half an  

hour and shifted the wife of the deceased to the  

hospital.  It is in his evidence that he gave  

report  to  the  police  at  the  house  of  the  

deceased. He did not draft the first information  

report and he does not remember as to who drafted  

the same. In his cross-examination it is stated  

by him that PW-3 was sent by him to the hospital  

prior to the arrival of the police.

10.Be that as it may, the crucial evidence is that  

of  PW-3.  There  is  some  discrepancy  in  the  

evidence as to who sent PW-3 to the hospital.  

But the fact remains that on 9.4.2002 at about  

11.25  a.m.  her  statement  was  recorded  by  the  

Judicial  First  Class  Magistrate  (Ex.P21).  The  

Magistrate  having  received  the  information  at  

about     11.00 A.M. reached the hospital and  

recorded  the  statement  as  ‘dying  declaration’.  

PW-3 in her statement stated that one person came  

to her house and suddenly beat on her head at  

about 10 P.M. in the night. She did not identify  

the person but stated that he was a young man

wearing stripes shirt. She did not state anything  

about the attack on the deceased.

11.CW-2 is Dr. G. Bhaskararao who stated in his  

evidence  that  PW-3  was  sent  for  treatment  of  

injuries by Gopalapuram Police Station. As her  

condition  was  serious,  he  immediately  sent  

intimation to JFCM (CW-1) who came and recorded  

her statement. The doctor (CW-2) was present when  

CW-1 recorded her statement. He certified that  

the patient was conscious and coherent to give  

her statement.  The Magistrate at the foot of her  

statement  (Ex.  P  21)  certified  that  the  

declaration recorded by him was read over and she  

admitted it to be correct and complete. It is  

specifically  observed  that  she  has  been  

conscious, coherent and in a fit state of mind to  

depose all throughout. He appeared as CW-1 and  

stated that he recorded the statement of PW-3  

under Exhibit P-21.  It has not been suggested to  

him  that  PW-3  was  not  in  a  fit  and  coherent  

condition at the time of recording her statement.

12.It is plainly evident that PW-3 was conscious  

and coherent to make her statement and made her  

statement in Exhibit P-21 in which not only she  

did not mention the name of the appellant but  

positively stated that she was attacked by an

unknown person aged about 20 years. Be it noted  

that the appellant even at the relevant time was  

of 50 years and was well known to PW-3. She did  

not explain as to and under what circumstances  

she made the statement in Exhibit P-21 nor there  

is any explanation as to how she omitted the name  

of the appellant and described somebody else to  

be the assailant.  On the other hand, she went to  

the  extent  of  stating  that  she  did  not  know  

whether the Magistrate had recorded her statement  

in the house or in the hospital.

13. It is well settled and needs no restatement at  

our  hands  that  when  a  person  who  has  made  a  

statement, may be in expectation of death, is not  

dead, it is not a dying declaration and is not  

admissible under Section 32 of the Evidence Act.  

In the instant case, the maker of the statement  

Exhibit P-21, is not only alive but is examined  

as  PW-3.  Her  statement,  therefore,  is  not  

admissible under Section 32; but her statement,  

however, is admissible under Section 157 of the  

Evidence Act as former statement made by her in  

order to corroborate her testimony in court. In  

the  instant  case  Exhibit  P-21  does  not  

corroborate the testimony of PW-3 in Court. It is  

obvious that PW-3 later on improved the story and

roped in the appellant. In  Ramprasad Vs. State  

of Maharashtra1 this Court held:

“As long as the maker of the statement is  alive it would remain only in the realm of  a statement recorded during investigation.  Be that as it may, the question is whether  the  Court  could  treat  it  as  an  item  of  evidence for any purpose. Section 157 of  the  Evidence  Act  permits  proof  of  any  former statement made by a witness relating  to  the  same  fact  before  “any  authority  legally competent to investigate the fact”  but its use is limited to corroboration of  the testimony of such a witness. Though a  police  officer  is  legally  competent  to  investigate,  any  statement  made  to  him  during such an investigation cannot be used  to corroborate the testimony of a witness  because of the clear interdict contained in  Section 162 of the Code. But a statement  made to a Magistrate is not affected by the  prohibition contained in the said section.  A Magistrate can record the statement of a  person as provided in Section 164 of the  Code and such a statement would either be  elevated to the status of Section 32 if the  maker of the statement subsequently dies or  it would remain within the realm of what it  was originally. A statement recorded by a  Magistrate under Section 164 becomes usable  to corroborate the witness as provided in  Section  157  of  the  Evidence  Act  or  to  contradict him as provided in Section 155  thereof.”

14.Considered in the light of the law declared by  

this Court the statement of PW-3 in Exhibit P-21  

can be used for corroborating the testimony of  

PW-3.  The  evidence  of  PW-3  is  completely  at  

1 ( 1999) 5 SSC 30

variance  with  what  has  been  stated  by  her  in  

Exhibit P-21. This vital aspect of the matter has  

completely escaped the attention of the courts  

below which resulted in miscarriage of justice.  

Enmity  between  her  husband  (deceased)  and  the  

appellant may be one possible reason for her to  

implicate  the  appellant  in  the  case  after  

deliberations.

15.What  remains  for  our  consideration  is  the  

statement  of  PW-4  who  is  none  other  than  the  

daughter of the deceased. The incident according  

to her took place at about 2.00 A.M. in the night  

when the appellant hacked her mother and father.  

She stated that on her raising hue and cry one  

Kanniah Tata and others came to the spot. She did  

not  reveal  the  name  of  the  appellant  to  the  

neighbours when they came to the house on her  

raising hue and cry. Kanniah Tata who is examined  

as PW-7 stated in his evidence that PW-4 informed  

him that her father and mother were beaten by  

somebody. The evidence on record suggests that  

even  PW-4  has  also  acquaintance  with  the  

appellant but she did not mention the name of the  

appellant  at  any  point  of  time  prior  to  her  

evidence in the court. Her evidence is also vague  

based on which it would be difficult to record

any finding of commission of any crime by the  

appellant. There is no other acceptable evidence  

available on record based on which the appellant  

could be held guilty.

16. We are conscious that normally this Court would  

not substitute its opinion by re-appreciating the  

evidence with that of concurrent findings of the  

two  courts  below.   But  in  the  present  case,  

having  considered  the  findings  of  the  courts  

below, we hold that the courts below found the  

appellant guilty on the basis of evidence of PWs-

3 and 4 upon which no reliance could be placed  

for the reasons stated herein above. The facts,  

based on which we have arrived at the conclusion  

not to rely upon the evidence of PWs-3 and 4, are  

very  much  available  on  record  which  were  

altogether ignored by the courts below. The same  

has  resulted  in  miscarriage  of  justice.  This  

Court  in  Zafar  Vs.  State  of  U.P.2 while  

considering the scope of interference in exercise  

of  its  jurisdiction  under  Article  136  of  the  

Constitution observed:  

“Though it is a case of concurrent finding by both the  courts resting on the appreciation of evidence, we are  of the view that the trial court and the High Court  

2 [ (2003)3 SCC 51]

overlooked  certain important  aspects in  the practical  application of the rule of prudence and caution which  the High Court itself proceeded to apply in appreciating  the evidence of the child witness. The High Court failed  to take note of certain telling factors emerging from  the evidence on record. There was no critical appraisal  of the evidence of PW 2 except focusing attention on two  alleged contradictions of no significance and repelling  the arguments based on them. Even if the finding that  the  medical  evidence  does  not  go  counter  to  the  prosecution case is allowed to remain, there are other  fatal infirmities in the evidence relied upon by the  prosecution  which  were  not  adverted  to  by  the  High  Court. In these circumstances, we are of the view that  it is a fit case for interference under Article 136.”

17.In  the  present  case  there  was  no  critical  

evaluation   of the evidence of PWs-3 and 4, and  

there  was  no  consideration  of  material  

contradictions having       crucial bearing on  

the veracity of the version given by   PWs-3 and  

4.   They went on making improvements from stage  

to stage which makes their evidence doubtful. It  

is under those circumstances, we are compelled to  

interfere  with  the  concurrent  findings  of  the  

courts below in order to prevent the miscarriage  

of justice.

18.For the aforesaid reasons, the impugned judgment  

is set aside. The appellant is acquitted of the  

charges  under  Sections  302  and  307  IPC.  The  

conviction  and  sentences  awarded  against  the  

appellant  are  set  aside.  The  appellant  is  

directed  to  be  released  forthwith.   The  bail

bonds earlier executied by him and the sureties,  

if any, shall stand discharged.

19.The appeal is, accordingly, allowed.  

……………………………………..J. (B. SUDERSHAN REDDY)

……………………………………..J. (J.M. PANCHAL)

NEW DELHI, November 10, 2009.