CRL.A. NO. 1768 of 2008                                                                                                                                         REPORTABLE

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      IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1768 OF 2008

 GURRALA ANTHONY & ORS. ..... APPELLANTS

VERSUS

STATE OF ANDHRA PRADESH ..... RESPONDENT

O R D E R

This  appeal  has  been  filed  by  three  of  the  

accused who stand convicted and sentenced for offences  

punishabel under Sections 302 and 341 read with Section  

34 of the Indian Penal Code.  Two others A5 and A6 were  

acquitted by the trial court whereas A1 was acquitted  

by the High Court.  In other words, out of the six  

accused brought to trial only three are before us by  

way of this appeal after special leave.   

The  deceased  Srinivasa  Rao  was  working  as  a  

coolie  in  the  Mango  Market  in  Vijayawada  and  would  

leave  for  work  at  4:30a.m.  and  return  home  to  his  

village by 9:30p.m.   On 3rd April, 2004, P.W. 1 – the  

mother of the deceased, received information from P.W.4  

to the effect that she had seen her son lying near the  

bridge  with  serious  injuries.   On  receiving  this

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information P.W. 1 went to the spot and was told by  

those present that accused A1 to A4 had beaten her son  

with  sticks  causing  his  death.   She,  accordingly,  

lodged a report with the police a short while later.  

The  investigation  made  by  the  police  revealed  that  

several  witnesses  including  P.Ws.  2  and  3  had  been  

accompanying the deceased while he returned home and  

that they had seen the attack on him.  It was also  

ascertained that A1 to A4 were bad characters and in  

the  habit  of  committing  thefts  in  the  market  and  

misbehaving with the women workers and the deceased,  

had,  on  several  occasions,  admonished  them  for  bad  

behaviour which had led to unpleasant scenes between  

them.   On  the  completion  of  the  investigation,  the  

accused were brought to trial for offences punishable  

under Sections 302 and 341 of the IPC.  During the  

course  of  the  trial,  the  prosecution  relied  on  the  

evidence of P.W. 1 admittedly not an eye witness who  

gave  the  story  with  regard  to  the  motive  for  the  

incident  as  also  the  fact  that  the  deceased  was  

employed in the Mango Market as a labourer, and P.Ws 2  

and 3  who were allegedly accompanying  the deceased at  

the  time  of  the  incident  and  claimed  to  be  eye  

witnesses.  The trial court relying on this evidence as

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corraborated by the medical evidence, convicted accused  

A1 to A4 and acquitted A5 and A6.  The High Court in  

appeal, acquitted A1 as well.  This appeal is before us  

at the instance by the remaining accused.

Mr. Nirmal Chopra, the learned counsel for the  

appellants  has  raised  several  arguments  during  the  

course of the hearing.  He has pointed out that in the  

background  of  the  fact  that  P.W.  1  was  not  an  eye  

witness and P.Ws. 3 and 4 had been declared hostile  

whereas  P.W.  2  had  denied  that  he  had  seen  the  

incident, there was no evidence against the appellants.  

He  has  further  submitted  that  as  the  FIR  did  not  

indicate that P.W. -1  or the eye witnesses knew the  

appellants and as P.W. 1 had deposed  that she was in a  

position to identify them, the omission on the part of  

investigators in holding a test identification parade  

was fatal to the prosecution story.  He has further  

submitted that police statement under Section 161 of  

the Cr.P.C. of both P.Ws. 2 and 3 had been recorded  

about 40 days after the incident which also cast a  

doubt on their credibility.  

Mr.  I.  Venkatara  Narayana,  the  learned  senior  

counsel   for  the  respondent-State  has,  however,  

supported  the  judgment  of  the  trial  court  and  has

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pointed out that the eye witness account of P.W. 2 was  

supported by the recoveries of a stone  and sticks and  

blood stained shirts from the place of incident or from  

the person of the appellants, and the prosecution story  

thus stood proved.

We have considered the arguments advanced by the  

learned counsel for the parties.  P.W. 1 – the mother  

of the deceased is admittedly not an eye witness.  She  

had  filed  a  very  sketchy  FIR  on  the  basis  of  the  

information that she had received from P.W. 4.  She had  

given the names of four of the appellants in the FIR  

and further went on to say that she was in a position  

to identify them although it is the admitted position  

that  they  did  not  belong  to  her  village.   As  an  

identification  parade  had  not  been  held,  the  

prosecution story rests almost exclusively on P.Ws 2  

and 3 who were initially said to be the eye witnesses  

of the incident.  P.W. 3 was declared hostile as he did  

not  support  the  prosecution  in  the  examination-in-

chief. Mr. Venkat Narayana has, however, pointed out  

that  in  the  cross-examination  he  had  supported  the  

prosecution.  On account of this ambivalence, we are  

unable to comprehend as to which of the two versions  

given  by him is the correct one.   P.W. 2's statement

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is equally unworthy of belief.  He deposed that he was  

not an eye witness to the incident and he had reached  

the place after the injuries had been caused to the  

deceased and had found him lying dead on the floor.  

Moreover, we notice that his statement under Section  

161 of the Cr.P.C.  had been recorded by the police for  

the first time on 14th May, 2004 whereas the incident  

had happened on 3rd of April, 2004.  When questioned,  

P.W.  2  admitted  that  his  statement  could  not  be  

recorded earlier as he was not available to the police.  

The Investigating Officer too was very categoric when  

he admitted that the statements of P.Ws. 2 and 3 had  

indeed been recorded on 14th May, 2004.

In  the  background  of  a  very  uncertain  eye  

witness account, the recovery of some of the sticks  

allegedly  used  in  the  murder  or  the  blood  stained  

shirts have no significance.   We, accordingly, allow  

the appeal, set aside the conviction of the appellants  

and order their acquittal.   

    ..................J      [HARJIT SINGH BEDI]

    ..................J

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    [J.M. PANCHAL]

NEW DELHI NOVEMEBR 12, 2009.

CRL.A. NO. 1768 of 2008                                                                                                                                         REPORTABLE

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         IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1768 OF 2008

GURRALA ANTHONY & ORS. ..... APPELLANTS

VERSUS

STATE OF ANDHRA PRADESH ..... RESPONDENT

O R D E R

     We have heard the learned counsel for the parties. Vide  our  separate  reasoned  order,  we  have  

allowed the appeal and set aside the conviction of the  

appellants and ordered acquittal.   

It is stated by Mr. Nirmal Chopra, the learned  

counsel for the appellants that the appellants are in  

jail. We direct that the appellants shall be set at  

liberty forthwith if not required in connection with  

any  other  case.    

The reasoned order to follow.   

                ..................J      [HARJIT SINGH BEDI]

    ..................J      [J.M. PANCHAL]

NEW DELHI NOVEMBER 12, 2009.

CRL.A. NO. 1768 of 2008                                                                                                                                         REPORTABLE

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