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CASE NO.: Appeal (crl.)  1401-1402 of 1999

PETITIONER: State of A.P.

RESPONDENT: S. Rayappa & Ors

DATE OF JUDGMENT: 14/02/2006

BENCH: H.K. SEMA & Dr.A.R. Lakshmanan

JUDGMENT: J U D G M E N T

H.K.SEMA,J

               23 accused in all were put to trial before the Trial  Court under Sections 148/302/149 IPC.  A-21 died before the  Trial commenced.  A-1 to A-20, A-22 and A-23 faced the trial.   The Trial Court convicted A-2, 3, 6, 12 and 14 under Section  148 and sentenced to rigorous imprisonment for three years.   The Trial Court also found A-2, 3, 6, 12 and 14 guilty under  Section 302 and sentenced to rigorous imprisonment for life  and a fine of Rs.2000/- in default three months rigorous  imprisonment.  Being aggrieved, two appeals were preferred  before the High Court.  Criminal Appeal No. 1727 of 1997 was  preferred by  Sathuluri Rayappa A-2, Sathuluri Chalapathi A- 3, Sathuluri Dibbaraju A-6 and Garapati Mastan A-12.   Criminal Appeal No. 18 of 1998 was separately preferred by  Satuluri Milke Raju A-14.  By the impugned order the High  Court acquitted all of them.  Hence these appeals by special  leave by the State of Andhra Pradesh.                 Briefly stated the facts are as follows:                 The accused and the material prosecution witnesses  were the residents of village Chilakaluripeta.  The deceased  Pilli Mohan Rao was also the resident of the same village.   Eyewitness P.W.1 Pilli Subba Rao is the brother of the  deceased.  The deceased Pilli Mohan Rao is the brother-in-law  of another eyewitness P.W.2.  The village Malapalli of  Chilakaluripeta is a faction-ridden village.  One group was led  by A-6 who belonged to C.P.M party and the deceased who  also belonged to C.P.M party led another group.    Since 1984  there were several criminal cases against each other among  these groups.  On 7.4.1992 A-1 and two others stabbed the  son of the deceased.  After the said incident, the deceased  shifted his family from Malapalli to Sanjeeva Colony in  Chilakaluripeta to his sister’s house. It is the case of the  prosecution that on 24.7.1992 at about 7.00 a.m. all the  accused persons passed in front of the house of P.W.1 stating  that they had killed Pedda Sambaiah and they would kill the  deceased Pilli Mohan Rao.  P.W.1 having heard the  conversation went to his sister’s house where the deceased  and his family were residing.  P.W.1 narrated the story to the  deceased and asked him to escape.  P.W.1 and the deceased  then came to Narsaraopet bus stop of Chilakaluripeta.  Then  they saw all the accused coming towards them armed with  deadly weapons.  On seeing the accused they started running  and the accused chased the deceased.  It is the prosecution  case that  Sathuluri Dibbaraju A-6 axed on the back of the

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deceased,  Sathuluri Rayappa A-2 hit him on the left side of  the chest,  Sathuluri Milke Raju A-14 also axed on the back of  the deceased, Sathuluri Chalapathi  A-3 beat on the back side  of neck of the deceased and  Garapati Mastan A-12 speared on  the back of the deceased.  All the other accused meanwhile  watched to prevent others from coming there.   On hearing  hue and cry of the deceased the neighbours came out, by that  time all the accused ran away.  It is further stated that after  the incident P.W.1 and P.W.2 went near the body and found  the deceased dead.  Thereafter, P.W.1 went to the police  station and lodged the report with Head Constable P.W.8 at  Town Police Station.  P.W.9 the C.I. took up the investigation  and in course of the investigation, statement of prosecution  witnesses were recorded, documents collected and having  found that prima facie case was established against the  accused, submitted the chargesheet. Later, on appreciation of  evidence and documents collected during the course of the  investigation and having found the case established against  the accused during the trial, the Trial Court convicted the  appellants as aforesaid.                  The High Court doubted the presence of P.W.1 and  P.W.2 who are eyewitnesses to the occurrence and discarded  their testimony.  The High Court, in our view, erroneously  discarded the evidence of P.W.2 merely on the ground that in  inquest report (Ex.P.2) it does not disclose the name of P.W.2  as an eyewitness.  In Ex.P.2 a very detailed statement of P.W.1  has been recorded.  In cross-examination P.W.1 categorically  stated that P.W.2 Valleru Devadanam was present at the scene  during the time of inquest and until the dead body was taken  to the hospital.  The High Court, has failed to take note that in  the first information report the name of P.W.2 prominently  figures as an eyewitness.  This apart, P.W.2 in his deposition  clearly stated that he was present at the spot at the time of  inquest report.  He has also stated that he was examined by  the police at the scene during the time of inquest and his  statement was recorded.  The statement of P.W.2 that he was  present at the spot at the time of inquest report prepared by  the police was corroborated by the statement of P.W.3  Kondamuthi Bulli Kotamma.  He has categorically stated that  P.W.2 was present at the spot at the time of inquest report.   The statement of P.W.2 was further corroborated by P.W.4  Challa Venkata Hanumanthu Vijaya Kumar, who is a village  Administrative Officer and a panch witness to the inquest  report.  He has stated that two witnesses were examined at the  time of inquest report.  Further P.W.5 Rama Chandra Prasad  also corroborated the evidence of P.W.2 that P.W.2 was  present at the time of the inquest report.  In view of the direct  evidence of prosecution witnesses regarding the presence of  P.W.2 at the spot at the time of the inquest report the finding  recorded by the High Court is clearly perverse.                 The High Court doubted the presence of P.W.1 on  the ground that he gave the first information report (ExP.1) at  2.30 p.m. on 24.7.1992 at the police station which was  doubtful because the endorsement of the Magistrate in Ex.P.1  showed that he received the first information report at 12 mid  night. It is not disputed that the incident had taken place on  24.7.1992 at 12.30 noon.  P.W. 1 categorically stated that he  went to the police station and lodged the FIR (Ex.P.1) at 2.30  p.m.  This statement is corroborated by P.W.8, police head  constable that P.W.1 lodged the FIR at 2.30 p.m.  Why and  how the FIR lodged at 2.30 p.m. reached the ilaqa Magistrate  at 12 mid night should have been explained by the I.O. if such  question was put to him.  Admittedly, on the same day at 7.30  a.m. another murder, that of Pedda Sambaiah who was  brother-in-law of the deceased had taken place and the same

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case was also investigated by the I.O., P.W.9.  We have been  taken through the entire examination and cross-examination  of I.O. and not even a suggestion has been put to him about  the delay of  F.I.R. reaching the ilaqa Magistrate at 12 mid  night.   If such a question was put to the I.O. he should have  explained the delay, if any, because in the instant case one of  the important circumstances that could have delayed the FIR  reaching the ilaqa Magistrate is that on the same day another  murder had taken place at 7.30 a.m. in which one Pedda  Sambaiah brother-in-law of the deceased was murdered.  The  High Court was, therefore, clearly in error in holding that the  delay of FIR reaching ilaqa Magistrate at mid night would  throw a suspicion about the presence of P.W.1 and P.W.2.  The  evidence of P.W.1 and P.W.2 is categorical with regard to the  participation of each accused in giving blow to the deceased  with a particular weapon.                   P.W.7 Dr.S.Lalithakumari conducted the post  mortem examination and found the following external injuries  on the body of the deceased: 1.      A cut injury in the occipital region of the  head 5cms X 1 cms x bone deep  ecchymosis present on deep dissection.          

2.      An incised wound of 2 cms length and 4  cms deep near the right side of the  thorasic spine.  Vertical in direction.   Edges clear cut.  Ecchymosis present  underlying tissues.

3.      A cut injury of 6X3X7 cms deep in the  center of the lumbar region over the 3rd  lumber spine.  On deep dissection  ecchymosis present.  3rd lumbar vertibra  cut.  The injury is transverse in direction.   Edges are clear cut.  

4.      A stab injury in front of the left of the left  side of the chest.  Transverse in direction  4X2X7 cm deep.  Edges are clear cut.  The  injury is just below the left nipple.    Ecchomisis present.

5.      A deep cut injury of 6X3X8 cms deep in  the left lumbar region.  Transverse in  direction.  Edges are clear cut.   Ecchomosis present."

The external injuries as described by the P.W.7; injury No.1  corresponds to axe injury caused by A-3, injury No.2  corresponds to spear injury caused by A-12, external injury  No.3 corresponds to axe injury caused by A-6, external injury  No.4 corresponds to axe injury caused by A-2 and external  injury No.5 corresponds to axe injury caused by A-14.                       The other reason assigned by the High Court in  recording acquittal of the accused is that P.W.1 and P.W.2  were interested witnesses being relations of deceased and no  independent witness was examined by the prosecution.  By  now it is a well-established principle of law that testimony of a  witness otherwise inspiring confidence cannot be discarded on  the ground that he being a relation of the deceased is an

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interested witness.   A close relative who is a very natural  witness cannot be termed as an interested witness.  The term  interested postulates that the person concerned must have  some direct interest in seeing the accused person being  convicted somehow or the other either because of animosity or  some other reasons.   

On the contrary it has now almost become a fashion that  the public is reluctant to appear and depose before the Court  especially in criminal case because of varied reasons.   Criminal cases are kept dragging for years to come and the  witnesses are a harassed lot.  They are being threatened,  intimidated and at the top of all they are subjected to lengthy  cross-examination.  In such a situation, the only natural  witness available to the prosecution would be the relative  witness.  The relative witness is not necessarily an interested  witness.  On the other hand, being a close relation to the  deceased they will try to prosecute the real culprit by stating  the truth.  There is no reason as to why a close relative will  implicate and depose falsely against somebody and screen the  real culprit to escape unpunished.   The only requirement is  that the testimony of the relative witnesses should be  examined cautiously.  The High Court has brushed aside the  testimony of P.W.1 and P.W.2 on the sole ground that they are  interested witnesses being relatives of the deceased.                   Regarding non examination of an independent  witness P.W.9, K.Bhupal Singh the investigating officer stated  that on that day he went to the place of incident and inquired  about the witness but none came forward to reveal about the  case due to fear.  He has also stated that due to double  murder in the town in a single day there was terror in public  and he imposed Section 144.  In such a situation surcharged  with tension and fear psychosis it is not expected of any  witness to come and depose about the incident even though  they may have seen.  Non-examination of independent  witnesses, in such a situation, would be no ground to discard  the otherwise creditworthy testimony of P.W.1 and P.W.2,  which inspires confidence.  

               Minor discrepancies in the statement of prosecution  witnesses pointed out by the counsel for the respondents need  not detain us any longer.  Every discrepancy in the witness  statement is not fatal to the prosecution’s case.  The  discrepancy, which does not materially affect the prosecution  case, does not create any infirmities.

               In the result, these appeals deserve to be allowed.   The impugned order of the High Court acquitting the accused  (respondents herein) is hereby quashed and set-aside.  The  order of the Trial Court convicting the respondents is restored.   The respondents are directed to be taken into custody  forthwith to serve out the remaining part of the sentence.   Compliance report should be sent within one month.