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CASE NO.: Appeal (crl.)  639 of 2005

PETITIONER: S. Sudershan Reddy & Ors

RESPONDENT: The State of Andhra Pradesh

DATE OF JUDGMENT: 20/07/2006

BENCH: ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.  

       Challenge in this appeal is to the judgment rendered by a  Division Bench of the Andhra Pradesh High Court upholding  the conviction of the four appellants under Section 302 of the  Indian Penal Code, 1860 (in short the ’IPC’) and sentence of  imprisonment for life as awarded by learned Principal Sessions  Judge, Kurnool.

Accusations which led to trial of the appellants was that  on 27.4.1999 at about 8.30 p.m. they caused homicidal death  of one Khaja Saheb (hereinafter referred to as the ’Deceased’)  by hacking and stabbing with sickles and knives.  

Prosecution version in a nutshell is as follows:

On 27.4.1999, sometime prior to the occurrence, Khaja  Saheb (the deceased) S. Venkateswara Reddy, G. Thirumalesh  Gowd and T. Sreenivaslu (PWs. 1, 2 and 3) were at a place  called "Ramesh Hotel" near the Silver Jubilee College of  Kurnool Town.  Thereafter they started on 2 two wheelers i.e.  the deceased and PW1 on the first vehicle, followed by PWs. 2  and 3 on another vehicle.  The deceased was driving the first  of the above mentioned two wheelers.  PW1 was the pillion  rider.  When the deceased and PW1 reached near the railway  gate located on their way, an auto-rickshaw overtook them.  In  that process, the deceased lost the control of the vehicle and  they fell down.  According to Ex.P1 complaint, lodged by PW1  which was received by Sub-inspector (PW8) at about 10.30 AM  on the very same night, all the four appellants herein got down  from the above mentioned auto rickshaw, attacked the  deceased.  As a result of the said attack, the deceased  breathed his last on the spot.  In fact, from the evidence of Dr.  M.S. R.K. Prasad, the doctor (PW10) who conducted the post- mortem over the dead body of the deceased, there were  number of cut and stab injuries on the body classified under  ten heads.  Immediately, after the incident, PW1 went to the  residence of the deceased, informed the kith and kin of the  deceased around 8.45 P.M.  Afterwards, PW1 went to the  police station and lodged Ex.P1 complaint.                  PW8 the Sub-Inspector of Police who received Ex.P1 at  about 10.30 P.M., registered Crime No. 113 of 1999 under  Section 302 IPC. He also informed the Inspector of Police,  (PW9) Kurnool Town at that relevant point of time.  On receipt  of the information, PW9 went to the scene of offence, posted

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guard at the scene of offence and on the next morning i.e.,  28.4.1999, PW9 secured the presence of witnesses PWs.1, 2  Sayed Bade Bi (PW5) and B. Hussainappa (PW6) commenced  the inquest around 7.30 A.M.  He seized MOs. 1 to 3 \026 the  apparels of the deceased and after conclusion of the inquest,  the dead body of the deceased was sent for postmortem  examination.  On 8.5.1999 he arrested all the appellants at a  place called "Papaji Dabha". During the course of interrogation  the accused are said to have made a confessional statement,  which led to the recovery of M.Os. 7 to 10 under the cover of  Ex.P.14 Mahazir.  The charge sheet was filed by the successor  in the office of PW 9.                          In order to establish the guilt of the appellants, the  prosecution examined 10 witnesses, proved 15 documents and  exhibited 10 M.Os.  Of the 10 witnesses examined, PWs.1, 2, 3  and 4 were cited as eye witnesses.  PW1 did not support the  prosecution case in full.  Therefore, the prosecution cross- examined him.  PW2 did not support the prosecution case at  all. Mala Venkateswarulu the (PW4) \026 auto rickshaw driver \026  though initially supported the prosecution case in full, made a  volte-face and totally resiled from his earlier version when he  was recalled for further cross-examination by the defence a  month after his initial examination.  He was at that stage  cross-examined by the prosecution.           Similarly, T. Krishna (PW7) who was the panch witness  for Ex.P 13 i.e., arrest Mahazir of the appellant \026 accused, did  not support the prosecution case.  The learned Sessions Judge  on elaborate consideration of the evidence brought on record,  came to the conclusion that the appellants\026accused were  guilty for the offence with which they stood charged and  convicted and sentenced each to suffer life imprisonment.           Questioning correctness of the decision rendered by the  trial court, an appeal was preferred before the Andhra Pradesh  High Court by the accused persons. Primary stand of the  appellants before the High Court was that PWs. 1, 2, 4 & 7 did  not support the prosecution version and departed from the  statement purportedly given during investigation; and that    only on the basis of the evidence of PW 3, the conviction  should not have been recorded.  Though PW 3 claimed to be  an eye witness to the occurrence, his conduct was very  abnormal and unusual as  he did not inform the police and  did not also tell about the incident to any other person.   Though he claimed to be present at the time of inquest, his  statement was not even recorded at the time of inquest.   Furthermore, being closely related to the deceased his  evidence should not have been acted upon without  corroboration.  

On the contrary, stand of the State was that in the Ex.  P1, complaint which was lodged immediately after the  occurrence, name of PW3 as an eye witness was mentioned.  Though PWs 1, 2 and 4 did not support the prosecution  version, on a close reading of their evidence it is clear that the  version of PW 3 is established.  Further PW4 who was  examined on 1.11.2001 fully supported the prosecution  version.  He was cross-examined by the defence. Strangely  after about the month of the said cross examination, an  application was filed without indicating any reason to recall  him for further cross examination.  The trial court without  assigning any reason permitted further cross examination in  which he substantially departed from what he had stated  earlier.

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 The High Court after analyzing the evidence in detail  concurred with the findings of the trial court and upheld with  the conviction and sentence.

       In support of the appeal learned counsel for the  appellants submitted that as the so called eye witnesses PWs.  1,2 and 4 did not support the prosecution version, the trial  court and the High Court should have held that it would be  extremely hazardous to rely on the uncorroborated testimony  of PW 3 who was closely related to the deceased.  The source  of light for identification of the accused, was not indicated in  the FIR.  For the first time the witness PW3 indicated the  source of light for identification. Therefore, the trial court and  the High Court should not have held the appellants guilty.         In response, learned counsel for the respondent-State  submitted that the trial court and the High Court have  analysed the evidence in great detail and also considering the  contention of the accused persons that PW 3 was related to  the deceased, made an elaborate analysis of the evidence and  found PW3 to be a truthful witness.  Therefore, the conviction  cannot be faulted.  Additionally, the plea relating to absence of  the source of light in the FIR was not pleaded before the  Courts below.  In any event FIR was not required to indicate  the minutest details. Therefore, it was submitted the appeal  deserves to be dismissed.

We shall first deal with the contention regarding  interestedness of the witnesses for furthering prosecution  version. Relationship is not a factor to affect credibility of a  witness.  It is more often than not that a relation would not  conceal 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 evidence to find out whether it  is cogent and credible.

       In Dalip Singh and Ors.  v. The State of Punjab (AIR  1953 SC 364) it has been laid down as under:-

"A witness is normally to be considered  independent unless he or she springs from  sources which are likely to be tainted and that  usually means unless the witness has cause,  such as enmity against the accused, to wish to  implicate him falsely.  Ordinarily a close  relation would be the last to screen the real  culprit and falsely implicate an innocent  person.  It is true, when feelings run high and  there is personal cause for enmity, that there  is a tendency to drag in an innocent person  against whom a witness has a grudge along  with the guilty, but foundation must be laid  for such a criticism and the mere fact of  relationship far from being a foundation is  often a sure guarantee of truth.  However, we  are not attempting any sweeping  generalization.  Each case must be judged on  its own facts.  Our observations are only made  to combat what is so often put forward in  cases before us as a general rule of prudence.   There is no such general rule. Each case must  be limited to and be governed by its own  facts."

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       The above decision has since been followed in Guli  Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in  which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614)  was also relied upon.

       We may also observe that the ground that the witness  being a close relative and consequently being a partisan  witness, should not be relied upon, has no substance.  This  theory was repelled by this Court as early as in Dalip Singh’s  case (supra) in which surprise was expressed over the  impression which prevailed in the minds of the Members of  the Bar that relatives were not independent witnesses.  Speaking through Vivian Bose, J. it was observed:  

"We are unable to agree with the learned  Judges of the High Court that the testimony of  the two eyewitnesses requires corroboration.   If the foundation for such an observation is  based on the fact that the witnesses are  women and that the fate of seven men hangs  on their testimony, we know of no such rule.   If it is grounded on the reason that they are  closely related to the deceased we are unable  to concur.  This is a fallacy common to many  criminal cases and one which another Bench  of this Court endeavoured to dispel  in \026  ’Rameshwar v. State of Rajasthan’ (AIR 1952  SC 54 at p.59).  We find, however, that it  unfortunately still persists, if not in the  judgments of the Courts, at any rate in the  arguments of counsel."

       Again in Masalti and Ors.   v.  State of U.P.  (AIR 1965  SC 202) this Court observed: (p. 209-210 para 14):

"But it would, we think, be unreasonable to  contend that evidence given by witnesses  should be discarded only on the ground that it  is evidence of partisan or interested  witnesses.......The mechanical rejection of  such evidence on the sole ground that it is  partisan would invariably lead to failure of  justice.  No hard and fast rule can be laid  down as to how much evidence should be  appreciated.  Judicial approach has to be  cautious in dealing with such evidence; but  the plea that such evidence should be rejected  because it is partisan cannot be accepted as  correct."

       To the same effect is the decision in State of Punjab v.  Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana  (2002 (3) SCC 76). Stress was laid by the accused-appellants  on the non-acceptance of evidence tendered by PW3 to  contend about desirability to throw out entire prosecution  case. In essence prayer is to apply the principle of "falsus in  uno falsus in omnibus" (false in one thing, false in everything).  This plea is clearly untenable. Even if major portion of  evidence is found to be deficient, in case residue is sufficient  to prove guilt of an accused, conviction can be maintained. It  is the duty of Court to separate grain from chaff. Where chaff  can be separated from grain, it would be open to the Court to

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convict an accused notwithstanding the fact that evidence of  some of the witnesses has been found to be deficient.  Falsity  of particular material witness or material particular would not  ruin it from the beginning to end. The maxim "falsus in uno  falsus in omnibus" has no application in India and the  witnesses cannot be branded as liar. The maxim "falsus in uno  falsus in omnibus" has not received general acceptance nor  has this maxim come to occupy the status of rule of law. It is  merely a rule of caution. All that it amounts to, is that in such  cases testimony may be disregarded, and not that it must be  disregarded. The doctrine merely involves the question of  weight of evidence which a Court may apply in a given set of  circumstances, but it is not what may be called ’a mandatory  rule of evidence’. (See Nisar Ali v. The State of Uttar Pradesh  (AIR 1957 SC 366).(Also see: Sucha Singh and Anr. v. State of  Punjab (2003 (6) JT SC 348).    

       Learned counsel for the appellants submitted that the  non-mention about the source of light in the FIR is clearly  fatal to the prosecution case. Strong reliance is placed on the  decisions in Bollauaram Pedda Narsi Reddy and Ors. v. State  of Andhra Pradesh (1991(3) SCC 434).  As has rightly pointed  out by the learned counsel for the Respondent \026State such a  plea was not taken before either the trial court or the High  Court.  It is interesting that in the cross examination of the  witnesses, the defence has suggested that the light was dim  because the scooter had practically stopped moving and there  was only idling of the engine.  PW 2’s evidence is categorical  that he saw the attack in the light of the scooter head light.  This was stated in the cross examination by the accused  persons.  Similarly PW 3 was asked as to whether he could tell  the number of blows each accused gave.  He answered in the  affirmative.  Indirect suggestion therefore was that though the  blows were there, he could not tell the number.  To say the  least this is irresponsible cross examination.  Though for that  alone the prosecution case does not get strengthened yet this  is a factor which can be taken note of.  Non mention in the FIR  about the source of light is really non consequential.  It is well  settled that FIR is not an encyclopaedia of the facts concerning  the crime merely because of minutest details of occurrence  were not mentioned in the FIR the same cannot make the  prosecution case doubtful.  It is not necessary that minutest  details should be stated in the FIR.  It is sufficient if a broad  picture is presented and the FIR contains the broad features.   For lodging FIR, in a criminal case and more particularly in a  murder case, the stress must be on prompt lodging of the FIR.   Therefore mere absence of indication about the source of light  does not in any way affect the prosecution version.   Additionally the decision in Bollanaram’s case (supra) is really  of no assistance to the appellant. It is apparent that the  observation regarding the non-mention about the source of  light in that case was by way of description of the factual  scenario. It was noted by the court that victims were strangers  to the accused.  In that background the source of light was  found to be of some importance.

       In Nathuni Yadav and Others v. State of Bihar and  Another.  (1998(9) SCC 238) this Court observed that under  what circumstances the lack of moon light or artificial light  does not per se preclude identification of the assailants.  It  was noted as follows :-

       "Even assuming that there was no moonlight  then, we have to gauge the situation carefully.   The proximity at which the assailants would have

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confronted with the injured, the possibility of  some light reaching there from the glow of stars,  and the fact that the murder was committed on a  roofless terrace are germane factors to be borne  in mind while judging whether the victims could  have had enough visibility to correctly identify  the assailants.  Over and above those factors, we  must bear in mind the further fact that the  assailants were no strangers to the inmates of the  tragedy-bound house, the eyewitnesses being well  acquainted  with the physiognomy of each one of  the killers.  We are, therefore, not persuaded to  assume that it would not have been possible for  the victims to see the assailants or that there was  possibility for making a wrong identification of  them.  We are keeping in mind the fact that even  the assailants had enough light to identify the  victims whom they targeted without any mistake  from among those who were sleeping on the  terrace.  If the light then available, though  meager, was enough for the assailants why  should we think that the same light was not  enough for the assailants why should we think  that the same light was not enough for the  assailants why should we think that the same  light was not enough for the injured who would  certainly have pointedly focused their eyes on the  faces of the intruders standing in front of them.   What is sauce for the goose is sauce for the  gander."

In the instant case, the time was about 7 P.M. in the  evening in the month of April.  The position was again  reiterated in Bharasi and others v.  State of M.P. (2002(7) SCC  239).  It was inter alia noted as follows :

"In relation to the identification of the  accused in the darkness, the High Court has  clearly stated that in the month of April, the sun  sets at about 7.00 p.m. in the evening, the accused  were known to the witnesses and could be  identified even in faint darkness.  Here again, the  High Court has relied upon the decision of this  Court in the case of Nathuni Yadav v. State of  Bihar (1998 (9) SCC 238).  The High Court has  also noticed that the enmity between  the deceased  and the appellants was not disputed."

In Krishnan and Another v. State of Kerala (1996(10)  SCC 508 ) it was observed as follows :

       "After giving our careful consideration to the  facts and circumstances of the case and the  evidence adduced, we do not find any reason to  interfere with the well-reasoned judgment  passed by the High Court in convicting  appellant-2 Vijaykumar. So far as the  contention of insufficient light is concerned, we  may indicate that in an open field on a cloudless  starry night, there was no difficulty in  identifying the victim by the assailants because  of existence of some light with which  identification was possible.  PW1 being a close

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relation of both the accused, there was no  difficulty for PW 1 to identify them.  The  accused were also known to the other witness  for which he could also identify them.  So far as  appellant- Vijaykumar is concerned, PW1 had  physically prevented him from causing further  injury on the deceased and there was a tussle  between the two.  Hence there was no difficulty  for PW1 to identify Accused 2- Vijaykumar.  His  deposition gets corroboration from the  deposition of PW3 who had seen Vijaykumar at  the place of occurrence.  PW3 had not seen  Vijaykumar causing any injury on the deceased  because by the time PW3 came near the place of  the incident and noticed the incident,  Vijaykumar had been prevented by PW1 and his  knife had fallen on the ground."

       Appeal is dismissed.  Looked at from any angle, the  judgment of the High Court does not suffer from any infirmity  to warrant interference.