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PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: DR. M.V. RAMANA REDDY AND ORS.

DATE OF JUDGMENT14/08/1991

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) PUNCHHI, M.M.

CITATION:  1991 AIR 1938            1991 SCR  (3) 600  1991 SCC  (4) 536        JT 1991 (3)   421  1991 SCALE  (2)337

ACT:     Indian Penal Code--Sections 148, 302 and  324--Acquittal of  accused--Whether  valid and proper on the  evidence  ad- duced. Delay in holding identification parade--Effect of.

HEADNOTE:     One  Ram  Subba  Reddy, an advocate,  politician  and  a tradeunionist,  was murdered on the night between  14th  and 15th  April, 1975, at his house in Proddatur, when  the  de- ceased  is  stated to have received fatal  blows  by  lethal weapons whilst his daughter (PW 1), sleeping nearby received injuries  when she attempted to go to help her  father.  Ac- cording  to the prosecution, Accused No. 1  (Respondent  No. 1),  was a friend and a regular visitor to the house of  the deceased,  till  they  fell out on account  of  trade  union activities. Accused No. 1 was the President of the workmen’s unions  of  Andhra Cotton  Mills,  Proddatur,  International Packaging Company, Proddotur and Transport Workers,  espous- ing  the cause of workmen and directing their union  activi- ties  while the deceased, a practising Advocate  represented the managements of these companies and tendered legal advice to  them  in  connection with the  various  labour  problems arising  in those companies. The deceased who was  a  lawyer for  the  companies  had advised the accused No.  1  not  to resort  to violence for settlement of  industrial  disputes. The fact that infuriated accused No.’ 1 further was the help which the deceased agreed to provide to PW 11 for setting up an  office of INTUC in his own office. This was intended  to counter  the  militant activities of Accused 1  who  was  in control of most of the labour unions in the town.     According  to the prosecution at about 3.30 a.m. on  the day  of occurrence, PW 1 who was sleeping on the terrace  of the  house nearby her father, woke up bearing the  cries  of her father ans saw accused 1 with 6 or 7 others stabbing her father with daggers. She raised  an alarm and tried to go to rescue  her  father but she was prevented by three  of  them from getting up; accused No. 3 had gagged her mouth with his hand and had pinned her down to the cot. Thereafter  accused 5  tried  to stab her with a dagger twice but  on  both  the occasions  she warded off the blows and in the process  sus-

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tained injuries on her left index finger, 601 thumb  and palm extending to another finger. After  the  as- sailants  left,  she got down and informed her mother  PW  2 about the incident; she opened the door to PWs 3 and 4,  who were  sleeping  outside. She sent a message  to  the  police through  PW S, her neighbour, as telephone lines  were  cut. The  police took up investigation and 19  persons  including the respondents were put up for trial before the  Additional Sessions Judge, Cuddapah on different charges e.g.  criminal conspiracy, rioting and murder, etc. The learned trial judge came  to  ie conclusion that the prosecution had  failed  to establish  the Charge of criminal conspiracy  under  Section 120B, I.P.C. It accepted the testimony of PWs 1to 5 and held (i)  that the incident occurred at 3.30 a.m. on the  terrace of the residence of the deceased; (ii) the injuries borne on the fingers of PW 1 were not self-inflicted as suggested  by defence  and (iii) that the intimation of the  incident  was the police without loss of time. Accordingly the trial Judge convicted  Accused Nos. 1 and 3 under Sections 148  and  302 and Sec. 324 with the aid of Section 149, I.P.C. and accused No. S under Section: 148, 302 and 324, I.P.C. and  sentenced all  the three to life imprisonment for murdering Ram  Subba Reddy and to rigorous imprisonment for 3 years under section 148, IPC. The other 16 accused were acquitted. The convicted persons  appealed to the High Court and the State  filed  an application  for  enhancement  of the  sentence  imposed  on Accused No. 1 to capital punishment. The High Court  allowed the  appeal  by the convicted persons  and  acquitted  them. Hence this appeal by the State against the order of  acquit- tal, by special leave. The High Court bold that the evidence of PW 1 is tainted in that the names of accused 2 and 4  who were  strangers to her figure in her statement Exh. P-1  and further her statement regarding identity of Accused 3 and  S was  unacceptable. The High Court therefore found  the  evi- dence led by the prosecution untrustworthy. and thus acquit- ted the accused appellants before it. Partly allowing the appeal, this Court,     HELD:  On the question of presence of PW 1 in  Proddatur on the date of the incident, apart from the oral evidence of PWs  1 to 3 and 5, there is the documentary evidence in  the form  of the entry Ex. S6 recorded by PW 24 in  the  general diary  on April 15, 1975 at about 4-30 a.m. That  entry  was made  on  the information supplied by PW 5.  It  is  clearly stated  therein by PW S that he had been told by PW  1  that her father was murdered at his residence. It was on  receipt of this information that the police went to the house of the deceased, drew up the inquest report and recorded the state- ments of those present there including PW 1. The presence of PW 1 is, therefore clearly established 602 by  this document prepared within an hour from the  time  of the incident. This contemperaneous document corroborates the oral evidence of the aforesaid witnesses. [614A.C]     The High Court failed to realise that when an injury  is on an accessible part of the body, which the individual  can himself  reach, such an injury could also be  self-inflicted and  when a medical witness is asked if it was  possible  to self-inflict  it he would have to answer in the  affirmative unless  the  direction of the injury or such  other  factors show otherwise. But merely because the medical officer  says that  they  could be self-inflicted, there is no  reason  to jump  to such a conclusion unless.  circumstances  establish such a possibility. In the present case there was hardly any opportunity  to  self-inflict  them. Her not  being  a  left

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hander should make no difference because she is bound to use that hand to ward off the blows if her assailant is on  that side  of her bed. The High Court was not justified  in  con- cluding that PW 1 had self inflicted the wounds found on her left hand. This conclusion of the High Court is, to say  the least, wholly conjectural and totally against the weight  of evidence on record. [615F-616A]     Once  it is accepted that PW 1 had slept on the  terrace and had sustained the injuries in the incident, her evidence regarding  the identity of accused No. 1 who was quite  well known to her cannot be doubted. [616G]     The evidence of PW1 is that when she heard the cries  of her  father  she woke up and saw accused No. 1  and  six  or seven  others belabouring him. This means that she  did  not know and could not identify the companions of accused No. 1. However,  when  she  tried to raise an alarm  three  of  the assailants  approached her and pinned her down to  the  bed, and one of them threatened to stab her. He did carry out his threat  as is evidenced from the injuries sustained by  her. She  was able to identify two of them at the  identification parade  held  on May 23, 1975. This is  proved  through  the evidence  of  PW 14 who conducted  the  test  identification parades. Now accused Nos. 3 and S had surrendered before the Court  on May 13, 1975. PW 14 received the  requisition  for arranging  a test identification parade on May 17,  1975.the identification  parade  was actually held on  May  23,  1975 There  is no valid explanation tendered by  the  prosecution for  the  delay in holding the identification  parades.  The High  Court was reluctant to place absolute reliance on  the evidence  of PW 1 regarding the identity of accused  Nos.  3 and 5. In the absence of a valid explanation  for the delay, the Court did not think that this approach of the High Court can be said to be manifestly wrong to call for intervention. [617A-E] 603     The  Court, in the result, partly allowed the appeal  in so  far as it related to original Accused  No.  1-respondent No.  1 set aside the High Court’s order acquitting  him  and restored the order of trial Judge convicting and  sentencing him. The Court affirmed the High Court’s order of  acquittal passed in respect of other accused, giving them the  benefit of doubt. [617E-G]     State  of  Jammu  and Kashmir v. Hazara  Singh  &  Anr., [1980] , Suppl. SCC 641, referred to.

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.  7 of 1979.     From  the  Judgment  and Order dated  13.2.1978  of  the Andhra Pradesh High Court in Criminal Appeal No. 812 of 1976 and 807 of 1977.     K. MadhaVa Reddy, TVSN.Chari, Narashima P.V.P.L. and Ms. M. Gupta for the Appellant.     R.K. Garg, T. Rama Mohan Raj, N.M. popli and V.J.  Fran- cis for the Respondents. The Judgment of the Court was delivered by    AHMADI, J. Ram Subba Reddy, an advocate, politician’  (an ex-MLA)  cum  trade unionist was done to death when  he  was sleeping on the terrace of his house in Proddatur,  District Cuddapah,  on the night ’between 14th and 15th April,  1975. The  incident  in question occurred at about  3.30  a.m.  in which,  apart from the deceased Ram Subba Reddy  having  re- ceived  fatal  blows by lethal weapons, his  daughter  PW  1

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Krishnaveni, aged about 24 years, received injuries when she attempted  to ’go to help her father. As many as 19  persons were put up for trial before the learned Additional Sessions Judge, Cuddapah on different charges. Original accused  Nos. 1  and  7 to 19 were charged for criminal  conspiracy  under section  120B; original accused Nos. 1 to 6, 12 and 13  were charged  for rioting with deadly weapons under section  148; original accused No. 16 was charged under section 147  along with  original  accused  Nos. 1 to 6, 12  and  13;  original accused Nos. 1 to 6, 12 and 13 were also charged for  murder under  section  302;  the said  accused  alongwith  original accused  No.  16 were also charged  under  section  302/149; original accused No. 5 was charged under section 324 and  he as well as original accused Nos. 1 to 604 4,  6,  12, 13 and 16 were charged  under  Section  324/149, I.P.C.  To bring home the charges against them the  prosecu- tion mainly relied on the testimony of PW 1 Krishnaveni,  PW 2 Venkata Subbamma, widow of the deceased, PW 3, Venkat Rami Reddy and PW 4 Kasireddy sambasiva Reddy, both of whom it is claimed  were sleeping on the ground floor of the  house  of the  deceased and PW 5 Annapu Reddy Venkata Subba  Reddy,  a neighbour  who arrived at the scene of incident  on  hearing the commotion and who at the instance of PW 1 lodged the FIR Exh. P-56 at about 4.30 a.m. The learned Additional Sessions Judge  accepted  the  evidence of PWs 1, 2, 3 and  5,  PW  4 having turned hostile, and convicted original accused Nos. 1 and 3 under section 148 and section 302 and 324 with the aid of  section  149, I.P.C. and original accused’ No.  5  under sections  148, 302 and 324, I.P.C., substantively.  All  the three  of them were sentenced to life imprisonment for  mur- dering  Ram Subba Reddy and to rigorous imprisionment for  3 years  under  section 148, I.P.C. No separate  sentence  was imposed for causing injuries to PW 1. The rest were  acquit- ted of all the charges levelled against them. No appeal  was preferred to the High Court against their acquittal but  the three  convicted  accused preferred an appeal  to  the  High Court challenging their conviction while the State  appealed for  enhancement of the sentence of accused No. 1 from  life imprisonment  to capital punishment. The High Court  doubted the  testimony  of PWs 1, 2, 3 and 5 and their  capacity  to identify  the assailants and, therefore, acquitted  them  of all  the  charges levelled against  them.  Consequently  the State’s  appeal for enhancement of accused No. 1’s  sentence also  failed.  While  the State has  preferred  this  appeal against the order of acquittal or’ original accused Nos.  1, 3 and 5, no appeal has been preferred against the  dismissal of he State’s appeal for enhancement of the accused No.  1’s sentence. A few facts leading to this appeal may be noticed. The  deceased was a practising lawyer and a congressman.  He was member of the Legislative Assembly during the 1967 ,1972 term. He had his own house in which he resided. AcCused  No. 1,  a medical practitioner, was a trade union  activist  be- longing  to the Communist party of  India  (Marxist-Leninist group) and weilded considerable influence among the  working classes.  Accused  No. 2 was a lower division clerk  in  the judicial  department, District Cuddapah, but was on cave  at the  material  time.  He was a close  associate  of  accused No..1. Accused Nos. 3 and 5 were employees of Andhra  Cotton Mills, Proddatur, while accused Nos. 4 and 6 were  employees of International Packaging Company, Proddatur, and took part in trade union activities. In the first quarter of 1974  the workers of the International Packaging Com- . 605

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pany had served the management with a charter of demands and accused No. 1, who was the President of the Union had served the  management with a strike notice on the’ failure of  the negotiations  which the management countered by declaring  a lock-out.  Thereafter PW 21 Jutura Ramaniah partner  of  the company  was  assaulted on the night of March 30,  1974  for which  a case was registered against accused No. 1  and  his companions. The deceased who was a lawyer for the company is stated  to have advised accused No. 1 not to resort to  vio- lence  for  settlement of such industrial disputes.  As  the deceased was representing the company the relations  between the  deceased  and  accused No. 1 which  were  cordial  were soured  and the latter stopped visiting the former.  In  the month  of November 1974, on the advise of the deceased,  the management  brought workers from Bangalore and  started  the factory. However the workers’ union could prevail upon those workers not to report for. work and the unit again same to a standstill  within about ten days of commencement. The  dis- pute  was referred to the arbitration Of three  persons  but they  could not resolve it on account of the  uncompromising attitude of the workers led by accused No. 1.     While this unrest continued trouble started brewing-with the  transport workers union of which accused No. 1 was  the President striking work. Here too the management was  repre- sented  by the deceased. The atmosphere in the township  was surcharged  and  tense. With the intervention of  the  State Minister  the dispute between the transport workers and  the owners was settled but so far as the International PaCkaging Company  is concerned its employees did not  participate  in the meeting called by the Minister. A warrant for the deten- tion of accused NO. 1 under MISA was issued on February  14, 1975  but the same could not be executed as he  went  under- ground. On the advice of the Minister the management unilat- erally  opened  the factory w.e.f. March 19, 1975.  The  de- ceased had throughout taken a very active interest in ensur- ing  the starting of the factory notwithstanding  the  stand taken by the union. The union had also complained about  the unilateral imposition of certain conditions on the’  workmen but to no avail. The workers began to report for work though the  union was not reconciled. On the other hand  since  the warrant  for accused No. 1’s arrest could not be executed  a warrant  for the attachment of his properties was issued  on April 9, 1975.     PW  11 M. Sajjana, Assistant Station  Master,  Cuddapah, had started an INTUC branch at Cuddapah sometime’ in  Decem- ber, 1973. Under its banner a youth conference was organised on January 26, 606 1975. PW H presided. over that conference and a decision was taken explore the possibility of starting an INTUC branch at Proddatur with the help of the deceased. Pursuant thereto PW 11 and others visited Proddatur on March 27, 1975 to discuss the  matter  with the deceased. The  deceased  promised  all possible help and agreed to provide space for the office  of INTUC in his own office. Ultimately to counter the  militant activities  of accused No. 1 who was in control of  most  of the labour unions in the town a decision was taken to  start an INTUC branch in Proddatur w.e.f. April 19,1975. Pamphlets were  issued in this behalf soliciting the co-operation  ,of workers  and others. This was the last straw on the  camel’s back.     The physical condition of the. place. of occurrence  may be  noticed  to. appreciate the ocular  evidence..The  house faced southward and lay along a public road with open  space in-the front covered by a.compound,wall in the front with no

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such  wall on the remaining three sides. In the front was  a verandah  and thereafter came the drawing room in which  was installed a telephone. Further to the north was. a room  and beyond  that was a hall. Then came another covered  verandah with  a tin-sheet sloping roof at a height of about  7  feet from the ground level. This-was the ground floor  accommoda- tion.  The staircase.leading’ to the terrace was situate  in the  hall.  This staircase opened in a room leading  to  the open  terrace.  This  terrace room had  an  asbestos  ’sheet projection  whereunder there was an electric bulb. The  ter- race  had a parapet wall all round of the height of about  3 feet. On the south-west side of the terrace room along.  the parapet  wall  there  existed a 24 feet long  pial  of  the. height of 20 inches and width of 18 inches. A window in  the western  wall  had a cement shade 4 feet x 2 feet  in  size, Adjacent  to. that window was a telephone pole  hardly  five feet  away  from the-wall with the upper  end  hardly  6-1/2 inches  from the cement shade. The prosecution case is  that this telephone pole was used by the assailants to launch the attack on the deceased.     The  family of the deceased comprised of his wife PW  2, two  daughters, one of whom was married and lived  with  her husband and, the other PW 1 was a medical student, and three sons none of whom was in town on that day. Pw. 1 was  study- ing  in the third year at Kakinada and had come home as  the college  was  closed from April 12 to April 20, 1975.  PW  1 deposed  that on the date of the incident after  dinner  she and her parents chit-chatted for sometime and thereafter her father went to the terrace as it Was summer and retired  for the night. She continued to talk with her mother and in  the meantime PWs 3 and 4 arrived. They carried their-beddings to the verandah and slept 607 there.  PW  3 used to sleep at their house  since  the  last couples of years whereas PW 4 came there occasionally. After they  left for the verandah the witness closed  the  ’ground floor door to the house, carried an anatomy book and went to the  terrace to sleep. She read in the terrace  light  which was  under the asbestos projection and then went to  bed  on the  cot laid for her keeping the light on as was the  usual practice. Her mother did not sleep on the terrace as she was not  allowed  to  climb the stairs since  she  had  recently undergone  an operation. Her father was sleeping on the  bed laid on the floor wearing a banian. A hurricane lantern  was also kept lighted on account of frequent power failures.  At about 3.30 a.m. she woke up hearing the cries of her  father and saw accused No. 1 and 6 or 7 others stabbing her  father with  daggers.  She raised an alarm and tried to go  to  the rescue of her father but she was prevented by three of  them from  getting up. According to her accused No. 3 had  gagged her mouth with his hand and had pinned her down to the  cot. Thereafter  accused  No. 5 tried to stab her with  a  dagger twice but on both the occasions she warded off the blows and in the process sustained injuries on her left index  finger, thumb and palm region extending to another finger. Till  the assailants had finished with her father she was pinned  down to  her bed and thereafter the assailants went to the  west, climbed the parapet wall and went down the terrace. She then ran  down  crying that accused No. 1, whom  she  knew  since quite  sometime, and his companions had killed  her  father. She  woke  up her mother and informed her of what  had  hap- pened. On hearing a knock on the main entrance to the house, she  opened the door and found PWs 3 and 4 holding a  torch. On inquiry she told them that accused No. 1 and his  compan- ions  had  killed her father and she too  was  injured.  She

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learnt from them that they had seen accused No. 1 and 4 or 5 others slide down the telephone pole situated to the west of the house. She then tried to contact the police on phone but found that the same was disconnected. Since PW 5 a neighbour was there she requested him to go tO the police station  and fetch the police. On receipt of information a  Sub-Inspector of police and a few constables arrived by about 5.00 or 5.30 a.m. to whom she narrated the incident whereupon her  state- ment  was  recorded which has been introduced on  record  as Exh.  P-1.  The Sub-Inspector held the inquest on  the  dead body between 7.00 and 10.30 a.m., drew up a panchnama of the scene  of  occurrence, attached the anatomy  text  book  and other blood stained articles from the terrace, including the electric bulb from the socket of the electric holder on  the terrace, At the identification parade held later she identi- fied  accused Nos. 3 and 5 as the companions of accused  No. 1.  In  cross-examination she’ denied  the  suggestion  that accused  Nos. 3 and 5 were shown to her while they  were  in the sub-jail before 608 she  was  asked  to identify them. It  transpires  from  her cross-examination that the defence case was that she had not slept on the terrace, that the cut injuries on her left hand were  self-inflicted  and that she was  falsely  implicating accused  Nos. 3 and 5 as they had supported her rival  Padma in  a college election when she was in the B.Sc.  class.  It was also suggested that photographs of accused. Nos. 3 and 5 were  shown  to her from a group photo  obtained  from  A.C. Mills Union Office. It may be mentioned that the suggestions made  to this witness in regard to the identity  of  accused Nos. 3 and 5 are self contradictory in the sense that if the suggestion that she was falsely involving these two  accused because  they  had helped Padma who contested  the  election against her is correct it would follow that they were  known to  her since long in which case there would be no  need  to point them out to her while they were in the sub-jail or  to show  their  photographs  to her. Suffice it  to  say  that. nothing very striking, except minor contradictions, has been elicited  in  her cross-examination which  would  shake  her credibility.  PW  2,  her mother, corroborates  her  say  in regard  to the incident and the involvement of  accused  No. 1..  PW  3 has deposed that since he and  PW  4  anticipated danger  to the life of the deceased on account of  the  dis- turbed  management-labour  relationship they  slept  at  the house of the deceased. PW 3 states that he saw eight persons sliding  down the telephone pole..Amongst them were  accused Nos.  1  to  5 and S.V. Subbarayadu whom  he  identified  as accused  No.  6.  PW 4 has stated that on the  date  of  the incident  he had heard about the murder when he was  at  his residence  at about 4.30 a.m. He was treated as hostile  and was allowed to be cross-examined by. the prosecution. PW  5, whose house was only about 100 yards away, deposed that when he was sleeping on his terrace he heard cries at about  3.30 a.m. and went to the house of the deceased. PWs 1 to 4  were present  there  alongwith  other. neighbours. PWs  1  and  2 were.weeping while PWs 3 and 4 were trying to console  them. PW  1  asked him to inform the police that  her  father  was murdered.  He  then went and informed the police  about  the incident  and returned with the police to the scene  of  of- fence.  Thus the evidence of this witness also  corroborates PW 1.     The  inquest was!held between 7.00 and 10.30’  a.m.  The statements  of  PWs 1 to 5 were also  recorded  and  certain articles were attached from the terrace.These included blood stained bed-sheets, pillows, towel, shawl, shrit, etc.,  and

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Cunningham’s  text  book on. human anatomy which  PW  1  was reading  before going to bed. The telephone  connection  was found snapped and there were drops of blood from. the  place where  the dead body was found till the drawing  room  down- stairs where the telephone was: installed which. corrobo- 609 rated  the story of PW 1. The banian worn by  the  deceased, was  blood  stained and had cuts corresponding  to  injuries found on. the chest of the deceased. Several other  articles found  on  the person. of the deceased were  blood  stained. There  were  as  many as 33 injuries on the  person  of  the deceased which is clearly indicative of the involvement of a group of persons in the killing. This stands corroborated by the post-mortem report. On the cot which was occupied by  PW 1  there  were  blood drops on the bed, bed  cover  and  bed sheet. The reports of the Chemical Analyser and  Serologist, Exhs. P-18 and P-19. show that all the articles were stained with  human  blood.  A lantern was burning  nearby  and  the electric  light  on the terrace was also  on.  This  inquest panchnama  Exh. P-6 leaves no room for doubt that the  inci- dent occurred on the terrace portion of the residence of the deceased.     PW 1 was medically examined by the medical officer PW 13 on  the same day at about 11.45 a.m. She had incised  wounds on the left index finger 1/2" x 1/4", on the left hand below tile wrist 1" x 118" x 1/8", on the middle of the left  palm 1" x 1/8" x 1/8" and on the little finger of left hand  1/2" x  1/8" x 1/8". This would indicate that she received  these injuries while trying to ward off the blows.     Identification parades were held on May 23, 1975. In the first one accused Nos. 7, 10 and 11 were made to stand  with non-suspects,  in the second parade accused Nos. 12, 13  and 16  were  made to take their positions  along  with  several others and in the last parade accused Nos.17, 18 and 19 were concerned. PW 1 could not identify any one from amongst  the said  accused  persons in all the three parades.Out  of  the three  parades PW 3 identified all the three accused of  the second parade. In the evening an identification’ parade  was held concerning accused Nos. 2 to 6 and 9. PW 1 could  iden- tify.  ’accUsed Nos. 3 and 5 while PW 3 could  not  identify any of them.     The defence of all the accused was of total ’denial  and false  involvement. In fact accused No. 1 contended  that.he was  out  of  station from May 13, 1975 and  learnt  of  the murder  on  his return to Proddatur. When he learnt  of  his false  involvement he surrendered before the Court.  Accused Nos.  12,  13 and 16contended that they were shown to  PW  3 before the identification parade while accused Nos. 3 and  5 pleaded  that  the police had taken a  group  photograph  in which they figured from the union office and had shown it to PW  Accused Nos. 7, 11, 14, 15, 17 and 19 were not  examined under  section  313  of the Criminal Procedure  Code  as  no evidence  incriminating  them  was tendered  on  record.  No defence witness came to be examined. 610     The learned Additional Sessions Judge, Cuddapah, came to the conclusion that the prosecution had failed to  establish the charge of criminal conspiracy under section 120B, I.P.C. He  came  to  the conclusion that the  evidence  on  record, however, indicated that accused Nos. 1 to 6 had a direct and strong motive to kill the deceased and the likelihood of the others  having shared their feelings could not be ruled  out altogether. The direct testimony of PWs 1 to 5 and the other circumstantial  evidence  adverted  to  earlier  established beyond  any  manner of doubt that the incident  occurred  at

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3.30  a.m. on the terrace of the residence of the  deceased. The  learned Judge held that intimation of the incident  was given to the police without loss of time and PW 1 had lodged her complaint by about 6.00 a.m. when the police came to the scene  of  occurrence alongwith PW 5 who had  gone  to  call them. The suggestion that injuries found on the person of PW 1 were selfinflicted or that PW 2 was giving false  evidence as  she  was  promised financial help to  the  tune  of  Rs. 1,50,000 were brushed aside by the learned Judge as  totally imaginary  ,and unfounded. The learned Judge,  however,  did not  treat PW 1’s complaint EXh. P-1 as admissible  in  evi- dence  as he came to the conclusion that it was hit by  sec- tion  162 of the Code since information regarding the  inci- dent  had  reached  the police station  through  PW  5.  The learned trial Judge, therefore, accepted the evidence of PWs 1,  2,  3  and 5 as reliable and convicted  them  as  stated earlier while acquitting their companions.     The  said three convicted accused preferred  an  appeal, being  Criminal Appeal No. 812 of 1976, in the  High  Court. ,State also preferred an appeal for awarding capital punish- ment  to  accused No. 1, being Criminal Appeal  No.  807  of 1976.  The State’s appeal came to be dismissed and  that  is where the matter rests. However, the appeal by the convicted accused  came to be allowed and the appellants were  acquit- ted.  It  is against the said order of  acquittal  that  the State has approached this Court by way of special leave.  It would,  therefore,  be proper to ascertain  the  grounds  on which the impugned order of the High Court is founded.     The High Court came to the conclusion that the complaint of  PW  1 was not recorded at the time it purports  to  have been  for if it were so it would not have reached  the  con- cerned Magistrate as late as 1.40 p.m. In that case even the inquest  report  Exh. P-6 would not have been  delayed  till 10.55 p.m. The explanation for the delay found in Exh.  P-25 cannot  be accepted at its face value. The evidence of PW  1 is  tainted, in that, although she knew accused No. 1 as  he visited  her father quite often the rest of  the  assailants were total strangers and yet 611 the  names of accused Nos. 2 and 4 appear in  her  statement Exh. P-1 which goes to show that she was tutored into giving their  names.  That  according to the High  Court  raises  a serious doubt regarding her trustworthiness. On the question of  identity of accused Nos. 3 and 5, the High Court  points out that even before the identification parade she had  told the  Magistrate that she would be able to identify only  two persons and later pointed an accusing finger at accused Nos. 3  and 5 at the identification parade. This, says  the  High Court, reinforces the defence version that she was shown the group  photo before she was called to identify  the  accused persons. The identification parade was delayed upto May  23, 1975  as  till then the photograph was not  secured  by  the police. In the circumstances the High Court did not find the evidence  of PW 1 regarding the identity of accused  Nos.  3 and 5 acceptable. The High Court also held that the injuries on  the left hand of PW 1 were in all  probability  self-in- flicted,  more so because she is not a left-hander. So  also the absence of blood stains on the bed lying on the floor of the  terrace casts a serious doubt regarding her version  of the  incident.  The High Court found the  prosecution  story that  the electric light as well as the kerosene  lamp  were kept on throughout the night rather unusual. In this view of the evidence, the High Court did not consider PW 1 a  truth- ful  witness. As regards PW 3 the High Court found his  ver- sion  that he slept at the residence of the  deceased  since

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sometime unacceptable. It also noticed that PW 3 claimed  to know  accused  Nos. 1 to 6 by their names and  he  gave  out those names to the police and yet he could not identify  any of  them at the test identification parade. For this  reason the  High Court did not place reliance on his evidence.  The High Court, therefore, found the evidence led by the  prose- cution  untrustworthy and acquitted the  accused/appellants. Hence the present appeal.     Mr.   Madhav   Reddy,  the  learned  counsel   for   the appellant-State  contended that the presence of PW 1 at  the time of the incident was not only deposed to by PWs 2 and  3 but also by PW 5. The presence of PW 3 at the house at about 4.30  a.m. is deposed to even by the hostile witness  PW  4. He, therefore, submitted that the presence of PWs 1 to 5  is clearly established and is reinforced by the evidence of  PW 13,  the  medicalman, who examined PW 1  at  the  Government Hospital  at about 11.45 a.m. on the same day.  The  Sub-In- spector PW 24 also deposes that PW 5 had told him that PW  1 had sent him to report the murderous assault on her  father. He  submitted  that  once the presence of PWs 1  and  3  was established  there  was no reason to doubt  their  testimony merely because PW 3 was honest enough not to falsely involve any one by pointing an accusing finger at the identification 612 parade.  He  submitted that even PW 1 was honest  enough  to identify  only  two persons, namely, accused Nos. 3  and  5, Whom  she had an occasion, to see near her cot on  the  ter- race.  To  reject her evidence as regards  the  identity  of these  two  accused on the specious plea that  their  photo- graphs were shown to her’. before the identification  parade would  be, to say the least, unjust. If she could  be  shown the photograph why not PW 3 also! He also submitted that  it was preposterous to hold that the injuries found on the left hand  of PW 1 were self-inflicted. The absence of  blood  on the bed sheet of the bed on the floor of the terrace clearly explained  that the deceased must have rolled onto the  ter- race  floor  where the presence of blood  was  noticed.  He, therefore,  submitted that the High Court had  reversed  the well reasoned judgment of the. trial court on totally imagi- nary  grounds  which had resulted in  grave  miscarriage  of justice.     Mr.  R.K.Garg, learned counsel for  the  respondents/ac- cused,  submitted that this Court should not interfere  with the  decision of the High Court’ unless it’ finds  the  view taken  by  the High Court as perverse and  wholly  improper, resulting  in  miscarriage of justice. In support  he  cited State  of  Jammu & Kashmir v. Hazara Singh  &  Anr.,  [1980] Supp,  SCC  641. He also submitted  that  the  investigating agency  had  shown extra zealousness as the deceased  was  a prominent lawyer and an ex-MLA. Supporting the view of  the’ High  Court  he urged that the presence of PW 1  was  highly doubtful  and in any case it would be risky to rely  on  her interested testimony regarding the identity of accused  Nos. 3  and  5. The ’absence of blood on the bed shows  that  the same  was planted after the event to concoct the story  that PW  1’ was sleeping on the cot and not downstairs  with  her mother PW 2 who’ had recently undergone an operation.’  Once the  evidence  of  PW  1 is  excluded  there  is  no  direct testimony  since PW 3 had not identified any of the  accused at  the  identification parades. In short he  supported  the judgment  of  the High Court and prayed that we  should  not interfere  in  exercise of our extra-ordinary  powers  under Article 136 of the Constitution.   The motive for the commission of the crime was the  indus- trial  unrest  occasioned on account of the  strike  by  the

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workers of the International Packaging ’Company and later by the  transport workers. Indisputably accused No.1  commanded considerable clout over the employees of various  industrial units  such as the International Packaging  Company,  Andhra Cotton  Mills  and  the transport  industry  in  Proddatur.. Accused  No.  1  was championing the cause  of  the  workmen during the. prolonged agitation and strike by the workers of the Inter- 613 national  Packaging Company and also spearheaded the  agita- tion  by the transport workers. The deceased was the  lawyer for the managements and was considered the main obstacle, in the  realisation of the workers* demands. There was,  there- fore, animosity between the deceased and accused No. 1. This is more than clear from the oral evidence of PWs 2.3.4,  10. 11.21  to 23 and from the documentary evidence  tendered  as Exhs. P-2 to P-5. P-30 to P-37 and P-40 to P-55. In view  of this  overwhelming documentary evidence  which  corroborates the ocular evidence of the aforesaid prosecution  witnesses, it is established beyond any manner of doubt that the rival- ry between the trade unions headed by accused No. 1 and  the managements.  advised  by  the deceased  had  assumed  ugly. proportions.  The starting of the INTUC branch at  Proddatur with  the active participation of the deceased  was  perhaps the last straw on the camel’s back which worsened the  rela- tions  between accused No. 1 and the deceased. This  is  the motive  according tO the prosecution for the crime in  ques- tion.  But as has often been commented bitter animosity  can be  a  double  edged Weapon which may  be  instrumental  for deliberate  false involvement or for the  witnesses  wrongly inferring  and strongly believing (without  having  actually witnessed it) that the crime must have been committed by the rival  group. This possibility has to be kept in mind  while evaluating the prosection evidence regarding the involvement of accused No. 1 and his companions in the commission of the crime.     There  is  no dispute regarding the description  of  the residential  house of the deceased and the location  of  the telephone pole to the west thereof. It is not disputed  that the  said pole could be conveniently used for slidding  down from  the terrace. So also the fact that the telephone  con- nection  was snapped is not put in issue. The fact that  the incident  occurred  on the terrace is not disputed  but  the fact  that the deceased was sleeping on the floor and  PW  1 was sleeping on the cot is disputed. It was suggested in the course  of  cross-examination of the  prosecution  witnesses that  the  deceased  alone was sleeping on the  cot  on  the terrace and PW 1 was in fact not in town and even if she was in  town she must have been sleeping with PW 2.  Lastly  the fact that the deceased died a homicidal death on receipt  of as  many as 33 injuries is not disputed- The find  of  human blood  on the various articles attached by the police,  i.e. those  worn by the deceased as well as PW 1 and those  found lying on the terrace, is clearly established by the  reports Exhs. P-18 and P-19 which have not been questioned. It is in this background that we must consider if the High Court  has commit.  ted  any grave error requiring  interference  under Article 136 of the Constitution. 614     On the question of presence of PW 1 in Proddatur on  the date of the incident, apart from the oral evidence of PWs  1 to 3 and 5, there is the documentary evidence in the form of the entry Exh. 56 recorded by PW 24 in the general diary  on April 15, 1975 at about 4.30 a.m. That entry was made on the information  supplied by PW 5. It is clearly stated  therein

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by  PW 5 that he had been told by PW 1 that her  father  was murdered at his residence. It was on receipt of this  infor- mation  that the police went to the house of  the  deceased, drew  up the inquest report and recorded the  statements  of those present there including PW I. The presence of PW 1 is, therefore,  clearly  established by this  document  prepared within an hour from the time of the incident. This contempo- raneous  document  corroborates  the oral  evidence  of  the aforesaid witnesses. She was examined by the medical officer PW 13 on the same day at about 11.45 a.m. In addition there- to,  the find of the Anatomy book and slippers on  the  ter- race,  also lends assurance to the prosecution  evidence  in this behalf. Therefore, even if it is assumed that the  time of  recording her statement’ Exh. P-1 is not  correctly  re- corded, her presence at the scene of offence at the material time is established beyond a shadow of doubt.     Accused  No.  1 was a friend Of the deceased  till  they fell  out.  He  was a regular visitor to the  house  of  the deceased and, therefore, PW 1 knew him quite intimately. She has frankly admitted that others were strangers but she  was able  to  identify accused Nos. 3 and 5 because she  had  an opportunity  to see them from close quarters when they  were near  her cot. The existence of a cot and a bed on the  ter- race is indicative of the fact that two persons were  sleep- ing  on  the terrace. There were only three  family  members present on the date of the occurrence, one of whom was PW  2 who had undergone surgery only recently and was advised  not to  climb  the stairs. It is, therefore,  obvious  that  the deceased and PW-1 slept on the terrace.. The submission that the  bed on the floor was planted is based on the fact  that there  was no blood on the bed-sheet of that bed.  But  this submission overlooks the existence of blood drops  nearabout the bed. The dead body of the victim was also found lying on the  terrace  floor  nearby. The High Court  relied  on  the photograph  Exh. D-4 for holding that the bed was fresh  and unused. But as is apparent from the, crossexamination of  PW 24 that the said photograph shows "the bed-sheet spread over the bed on the cot is tucked beneath the bed". Thus the said photograph  is not of the bed on the floor. The  High  Court seems  to have misread the evidence. Secondly, it  is  clear that  the dead body was lying at some distance from the  bed suggesting  that  the deceased had rolled  over  during  the night or in the course of the attack. The 615 other  articles  lying nearby e.g towel,  shawl,  etc.  were blood  stained and there Were fresh drops of  blood  between the dead body and the western waif leading to the  telephone pole.  Since  there were Only three family  members  one  of whom,  PW 2, had undergone an operation in the recent  past, it is difficult to understand how PW 1 alone could shift the dead  body of her father from the cot to the place where  it was found to concoct evidence against the accused. It is too much  to  attribute such intelligence to PW 1  or  for  that matter PW 3 also. If the dead body which was bleeding had in fact been shifted there would have been blood drops from the cot to the place where it was found. Besides, where was  the time  for  the entire exercise? PW 5 was sent  to  call  the police and he had returned with the police after his  report was  entered in the general diary at 4..30 a.m.. It.  there- fore,  seems difficult to believe that the bed on the  floor was  planted  to support the prosecution version that  PW  1 slept on the terrace that night..     The  medical officer PW 13 found four incised wounds  on the  left hand of PW 1, possible by a sharp  cutting  weapon like a dagger or knife. These injuries were indeed minor  in

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nature. The High Court has concluded that the possibility of these injuries being self-inflicted cannot be ruled out,  PW 1 says she received these injuries in the process of warding off  the blows aimed at her. PW 13 also deposes  that  these injuries  could have been received while trying to ward  off the  blows  on her. Thus the medical evidence  supports  her say.  However,  in crossexamination he stated that  all  the four  injuries  were cut injuries and not  stab  wounds.  In response to a suggestion made in cross-examination he stated that  the possibility of the injuries  being  self-inflicted was not an impossibility. Merely from this suggestion and PW 1 not being a left hander the High Court concluded that  the possibility  of the injuries being self-inflicted could  not be ruled out. With respect, the High Court failed to realise that  when an injury is on an accessible part of,  the  body which  the  individual can himself reach,  such  any  injury could  also be self-inflicted and when a medical witness  is asked if it was possible to self-inflict it he would have to answer  in  the  affirmative unless the  direction  ’of  the injury  or  such other factors show  otherwise.  But  merely because the medical officer says that they could be  selfin- flicted,  there is no reason. to jump to such  a  conclusion unless’  circumstances establish such a possibility. In  the present  case there was hardly any opportunity  to  self-in- flict  them..  Her not being a left hander  should  make  no difference  because she is bound to. use that hand  to  ward off  the blows if her assailant is on that side of her  bed. We, therefore, feel that the High Court was not justified in concluding that PW 1 had self inflicted the wounds found  on her left hand. With 616 respect,  this conclusion of the High Court is, to  say  the least, wholly conjectural and totally against the weight  Of evidence on record.     The delay in Sending the FIR Exh. P-1 to the  Magistrate has  been seriously commented upon by the High  Court  while rejecting  the explanation given in Exh. P-25. This  comment has lost its significance as the said document has  not.been admitted in evidence by both ’the courts below on the ground that  it  is hit by section 162 of the Code. We  would  have examined  the explanation if that document. had formed  part of the record.’ Any way that cannot impinge On the credibil- ity  of PW 1 if her evidence is otherwise acceptable,  which we find it is’.     On  the question of identity it is clear from  the  evi- dence of PW 1 that accused No. 1 was known to her quite well Since  before  the incident. She could, therefore,  have  no difficulty in identifying him even in poor light. Immediate- ly  after  the accused fled she ran down  and  informed  her mother that accused.No. 1 and his companions had killed  her father. Since PW 1 had not disclosed the name of accused No. 1 as one of the assailants to PW 5, the latter did not speak about  him to the police and hence his name does not  appear in  the FIR recorded at 4.30 a.m. Accused No. 1  pleaded  an alibi: which he miserably failed to probabilise. The absence of  names of assailants in the general diary entry  made  on -the basis Of information supplied by PW 5 at the behest  of PW 1 has weighed considerably in the High Court doubting the version  regarding the involvement of accused No. 1  in  the commission of the crime. It must, however, be realised  that PW 1 had disclosed the name of accused No. 1 at the earliest point  of time when the complaint Exh. P-I and  the  inquest report  Exh.  P-6 were recorded. It must  also  be  realised that,PW  1 was under terrible strain at that time. Not  only had  this young girl lost her father in a  ghastly  assault,

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she  had also to look after her ailing mother:  and  console her. She frantically tried to inform the police on telephone but found the instrument dead with the wires snapped.  She,. therefore, asked this young boy aged ’about 16 years, PW  5, to go to the police station and fetch the police. There  was hardly-any time to  give details of the incident. Under  the circUmstances  the absence of the name of accused ’No. 1  as One of the assailants in the entry made in the general diary at the instance of PW 5 is quite understandable. Once it  is accepted  that  PW 1 had slept on the terrace and  had  sus- tained the injuries in the incident, her evidence  regarding the  identity of accused No. 1 who was quite well  known  to her  cannot be doubted.’We are, therefore, of the view  that the  High  Court was not justified in  disturbing  the  view taken by the trial court in this behalf. 617     That  takes  us to the question of  the  involvement  of accused Nos. 3 and 5. The evidence of PW 1 is that when  she heard  the cries of her father she woke up and  saw  accused No.  1 and six or seven others belabouring him.  This  means that she did not know and could not identify the  companions of accused No. 1. However, when she tried to raise an  alarm three of the assailants approched her and pinned her down to the  bed,  and one of them threatended to stab her.  He  did carry  out his threat as is evident from the  injuries  sus- tained by her. She Was able to identify two of them ’at  the identification  parade held on May 23, 1975. This is  proved through the ’evidence of PW 14 who conducted the test  iden- tification parades- Now accused Nos. 3 and 5 had surrendered before the court on May 13, 1975. PW 14 received the  requi- sition for arranging a test identification parade on May 17, 1975. The identification parade was actually held on May 23, 1975. There’ is no valid explanation tendered by the  prose- cution for the delay in holding the. identification parades. The  defence has suggested in the cross-examination of PW  1 and  PW  25  that in the meantime the accused  who  were  in custody  were  shown to the witnesses and  the  police   had secured  a  group photograph in which accused Nos. 3  and  5 figured  to facilitate their identification. The High  Court was,  however, reluctant to place absolute reliance  On  the evidence  of PW 1 regarding the identity of accused  Nos.  3 and 5. In the absence of a ,valid explanation for the  delay we do not think that this approach of the High Court can  be said  to be manifestly wrong to call for  our  intervention. ’      In the result this appeal is partly allowed insofar  as it relates to original accused No. 1 i.e., respondent No.  1 before  us.  The High Court’s order acquitting  him  is  set aside. The appeal is,’ however, dismissed so far as original accused Nos. 3 and 5 i.e., respondent Nos. 2 and 3 before us are  concerned- We restore the order of conviction and  sen- tence of original accused NO. 1--respondent No.  1--recorded by  the learned Additional Sessions Judge, Cuddapah for  his involvement in the crime with several other unknown persons. We,  however, give the benefit of doubt to original  accused Nos.  3 and 5, i.e, respondent Nos. 2 and 3 and confirm  the order  of their acquittal recorded by tire High  Court.  The original accused No. 1--respondent No. 1 will submit to  his bail  forthwith-  The  bail bonds in respect  of  other  two respondents will stand cancelled. Y.L.                                        Appeal    partly allowed 618

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