21 August 1996
Supreme Court


Case number: Appeal (crl.) 425 of 1983






DATE OF JUDGMENT:       21/08/1996


CITATION:  1996 SCALE  (6)163



JUDGMENT:                           W I T H               CRIMINAL APPEAL NO. 741 OF 1983 Shri S. Srihari Naidu V. State of Andhra Pradesh                          O R D E R      In Sessions  Case No.  8 of 1980, the  three appellants were variously  charged and tried along with three other co- accused and the learned  Additional Sessions Judge,  Nellore Division,  Nellore  by  a  judgment  dated  24th  May,  1980 convicted S.  Srihari Naidu,  the appellant No. 1 as well as R. Ramasubha  Reddy and  Ganapam Chella  Reddy, the  accused Nos. 5  and 6  respectively under  Section 120-B  read  with Section 302  of the  Penal Code. A/C has also been convicted under Section  302/109 IPC as well as under Section A of the Explosive Substance Act, 1008. All the three  were sentenced to  undergo   life  imprisonment  on  each  count;  but  all sentences were directed to run concurrently. The trial Court acquitted A-2,  A-3 and  A-5 and  A-8 were also acquitted of some  the   charges  that  were  framed  against  them.  The convicted accused,  namely, A-1,  A-C and  A-G preferred  an appeal in  the High  Court. The State of Andhra Pradesh also preferred an  appeal against  the acquittal of A-2 to A-4 as well as against A-1 and A-5 who was acquitted of some of the other offenses.  The  High  Court  held  that  charge  under Section  of   120-B  read  with  Section  302  IPC  was  not established against any of the accused persons and therefore set aside  the conviction  under Section  120-B/302 IPC. But the High  Court also  allowed the  appeal of A-5 and A-6 and set aside  their conviction  and sentence on all counts. But High Court  found the  appellant herein  A-1 guilty  of  the offenses under  Section 147  IPC  and  after  setting  aside acquittal of  A-2 and  A-3 namely,  T. Venkaiah Naidu and S. Mallikarjuna Naidu  respectively,  they  were  found  guilty under Section  149 IPC.  The High Court also held A-2 guilty for the  offence under  Section 302/140 IPC. A-2 and A-8 are



further held  guilty under Section 9 of Explosive Substances Act, 1908  and convicted  them accordingly and all the three were sentenced  to undergo life imprisonment. The conviction of A-1  and A-3  under Section 8 of the Explosive Substances Act was  also maintained  but no  separate sentence has been awarded on  that count.  A-1  has  filed  Cr.  A.No.  741/83 against his  aforesaid conviction and A-2 and A-3 have filed Crl. A  No. 425/83  against  the  common  judgment.  We  are informed at  the very  outset by the learned counsel for the appellants that A-1, namely S. Srihari Naidu died during the pendency of  this appeal  on 2nd August, 1992 and therefore, Crl. A. No. 741/83 abates.      According to  the prosecution, the incident occurred on 21st May, 1979 between 8-830 PM when the deceased Parliament Remanareddi, a  resident of  village Bitragunta-Bengole, had closed his  shop. The  deceased was running a fancy shop and wine shop  in bagole  village.  He  was  also  a  member  of Panchayat. A-1 to A-4 are also residents of the same village where A-1  was having  a cloth  shop adjacent to that of the fancy shop  of the  deceased. A-1 was also a Sarpanch of the Village and  there  were  political  rivalries  between  the deceased and  A-1, A-2  is the  son-in-law of A-1 and A-3 is nephew of  A-1.According to  the prosecution,  prior to  the occurrence in  question, there  were  certain  incidents  on account of  which certain  criminal case was pending against the deceased  due to  which there  was enmity  between them. This apart,  the A-1 was indulging in cotton market gambling and the  deceased made  complaints to  the  police  and  the Police began  to keep  watch on  the activities  of A-1  and hence A-1 was having grudge against the deceased. It is said that  since  A-1  to  A-8  entertained  grudge  against  the deceased, they  issued threats  to his life. On the date and time of the occurrence, the brothers (P.W.2) of the deceased had closed the shop while the deceased was standing in front of his  shop along  with his  clerk. At  that point of time, P.W.s 5,  8 and 9 arrived there. The deceased was talking to them and  when they proceeded, P.W.G. arrived there and when they were busy in talking, A-1 to A-3 along with three other persons emerged  from behind  a lorry  standing there and on the instigation   of  A-1, A-2,  and A-3 hurled bombs at the deceased. The  bomb hurled  by A-2  hit the  deceased on his back and  exploded. The hurled by A-3 fell near deceased and exploded. The deceased fell down and died instantaneously.      The further  prosecution case  is that Vijaysena Reddy, P.W.I., the younger brother of the deceased opened the shop, dictated a  report to  his another brother Valmati Parandham Reddy,  P.W-2,   and  took   it  to   the  police   Station, Bitrangunta, where  he lodged a written report (Exh. P-2) at about 10.30  PM on Inspector, P.W. 23. The police Inspector, P.W.20 recorded  the statements  of some  of  the  witnesses during the  night and statement of others were recorded next morning. An  inquest P-25  was prepared  between 7 to 9 A.M. next day.  Dr. M.  Venkataratnamma,  P.W.  1G  performed  an autopsy on  the dead  body of   the deceased, who as per his post mortem  report, Exh.  P-6, found a single injury on the person of the deceased which is a follows : <SLS> "A quadrangular, lacerated, burnt injury in between both the scapular region, measuring about ’9’ to 10 in length, in all sides. The depth of the wound is about 3" in the middle upto the spinal  column, the  depth of  wound is  about 4" to 5", upto the  lungs and  heart. Both  the  lungs  and  posterior surface of  the heart, in its lower portion are charred. The is charred, at its lower portion of muscles extends upto the middle of  the back,  that is  10th thoracic  Vertebrae. The



posterior portions  of the  Vertebrae from  1st to  10th are broken and burnt, exposing the spinal column. Spinal cord is also damaged.  Ribs from  2nd to  8th on  either  side  were broken and  charred. All  the muscles  are  charred  in  the middle of  the wound,  and deeply  cancerated, peripherally. The surrounding  skin is  blackish. about 2" to 3" all round the wound". <SLE>      In the  opinion of  the doctor,  the deceased  died  to shock and massive destruction  of the  tissues and  the spinal cord as result of  burn injury.  In the opinion of the doctor, death could be  instantaneous as  the injury was sufficient in the ordinary course of nature of cause death.      At the  trial, the appellants and the acquitted accused pleaded  false  implication  due  to  enmity.  However,  the learned trial  Judge, convicted  A-1, A-5  and A-6,  as said earlier, which  findings have been reversed by High Court so far as  A-2, A-3,  A-5 and A-G are concerned. The High Court acquitted A-4  to A-G but convicted the three appellants, as said above,  against  which  these  two  appeals  have  been directed.      The submission of the learned counsel for the appellant is that  FIR, Exh. P-2, was prepared after due deliberations and made  after a long delay. It was submitted that prior to the report,  Ex. P-2,  made by intimated the incident to the police by a written report Ex. D-17. He, therefore submitted that Ex.P-2  cannot be  regarded as  the  First  Information Report. He  submitted that in the FIR, the presence of other witnesses has  been mentioned  but the presence of P.W.G. is conspicuously missing, who is said to be the star witness of the prosecution. He also submitted that P.W.G.  cannot be accepted as  eye-witness that  for the reason that though he said to  be   talking to the deceased and hence his presence at the  place of  occurrence is   ruled out. Secondly, since his statement  was recorded at about 9 AM, the next morning, after a  long delay,  it raises  a serious  doubt about  the presence of  P.W.G. at  the place of occurrence. It has also been submitted that the conduct of P.W.G. is such that it is difficult to  place reliance  on his   testimony. As regards the evidence of P.W.4 and P.W.10, learned counsel urged that no relevance  can placed on them because P.W.4 is the  uncle and P.W.10  had worked under the deceased and thus both were interested witnesses.      We have  critically examined  the  evidence  on  record through the  assistance   of the  learned  counsel  for  the parties and  also perused  the judgments  of the  two courts below. It  is true  that it  appears that  the report ex.P-2 lodged by  P.W.I.  was  prepared  after  deliberations.  The incident had  occurred between  8 to  8.30 P.M.  while  this report was dictated by P.W.I in the shop and lodged at about 10.30 P.M.  after two  hours though  the police  station  is situated close-by  at a distance less than one  mile. In the case diary  statement of  P.W.G, who  is the star witness of the prosecution,  the presence  of P.Ws 1 and 2 at the place of occurrence  has not  been mentioned.  It is just possible that   two brothers  of deceased, P.Ws 1 and 2 arrived later at the  place of  scene after  getting  information  of  the occurrence which resulted into late reporting to the police. The presence  of P.Ws  1 and  2, therefore,  becomes  highly doubtful at the place and time of occurrence.      The  question,   therefore,  arises  whether  there  is convincing evidence  and material  on record  to sustain the conviction of  the appellants even if the evidence of P.Ws 1 and 2 is ignored. We  have examined the evidence of P.Ws. 4,



5, 6,  8, 9  and 10. P.W.4, as said earlier, is the paternal uncle of  the deceased who is also having a shop in the same vicinity where  the incident  had occurred and therefore his presence at  the place  of occurrence  cannot be doubted. He categorically stated  that after closing his shop at about 8 PM he  went to  the centre  and saw  the deceased talking to P.W.G. in front of his shop and it was at that point of time that A-1,  A-2 and A-3 along with two others were seen going towards the lorry standing near the shop of the deceased. He further deposed that A-1 to A-9 and three other accused went behind the  deceased and A-1 exhorted to hurl bombs at which A-2 and  A-3 hurled  the bombs  at the  deceased.  The  bomb hurled by  A-2 hit  the deceased  at his  back and  the bomb hurled by  A-3 fell  near him  and exploded.  Similar is the evidence of  P.W.G. who  deposed that   he  was  working  as steam-man in the Loop-shed Bitrangunta and was  going to his duty and  had reached  the place  of occurrence where he saw the deceased  talking  to  P.W.s  5,  8,  and  9  when  they proceeded ahead,  the  deceased  accosted  him  and  started talking to  him. It  was shortly  thereafter that A-1 to A-3 along with three other persons emerged from behind the lorry and on  the instigation  of A-1,  A-2 threw a bomb which hit the deceased on his back and A-8 also threw a bomb which hit the deceased  which fell near the deceased and exploded. The statement of  A-4 is thus corroborated by the evidence of an independent witness  P.W.G. The  note of caution sounded for accepting the  evidence of  a relative  witness is  that  it should be  subjected to  careful and  close scrutiny  and if such a witness stood the test of careful and close scrutiny, there is  no reason  not to  accept his  testimony.  In  the present case  we find  that evidence of P.W.4 not only with- stood the said test but is also corroborated by the evidence of an  independent  witness  P.W.G.  Nothing  turns  on  the conduct of  P.W.G. in going to his place of duty along  with his brother and change of his dress etc.      The evidence  of P.W.G.  has been seriously assailed by the learned counsel for the appellants on the ground that he did not  sustain any  injury inspite  of the  fact that  two bombs were  hurled one  which hit the deceased and the other fall near  him and  exploded. But  the fact  cannot be  lost sight of that the first bomb had hit the deceased. There was hardly any  occasion for  the first bomb to hit P.W.G. as he covered by  the body  of the  deceased. The  bomb  particles would have gone side-ways. The second bomb which fell by the side of  the deceased  also exploded  and emitted  smoke. It travelled to  some other direction as admittedly, the second bomb had  fallen by  the side of the deceased but no part of it hit  even the  deceased. It  is therefore,  difficult  to accept that  since no  injury was   caused  to P.W.G. by the second bomb,  his presence  becomes doubtful. As regards the late recording  of the  police statement of P.W.G. it may be stated, that  the fact  that he  was present at the place of the occurrence became known to the investigating agency only after the  mid-night and  since  P.W.G  had  left  for  duty somewhere in  the Loosed  where he remained till 6 AM he was not available  for interrogation.  The   police statement of P.W.s 5,  8 and  were 9  recorded at  the same time when the statement  of  P.W.6  was  recorded.  This  short  delay  in recording the  case diary  statement    of  P.W.G,  for  the aforesaid reason,  cannot be a valid ground,in the facts and circumstances of the present case, to  reject his testimony. The presence  of P.W.G.  at  the  place  of  occurrences  is testified by  the independent witnesses, namely, P.Ws. 5, 8, 9 there  is no  reason to  disbelieve their  the  consistent evidence of P.Ws. 4 and 8 coupled with  the evidence of P.Ws



5, 8  and 9  coupled with  the evidence  of P.Ws 5,  8, 9 as well as  that of  P.W. 10, the implication of the appellants in the crime is fully established.      Learned counsel  for the appellants then submitted that High Court should not have interfered with the well reasoned judgment of the trial court and should not have reversed the findings recorded  by the  trial   Court. In support of this submission, learned   counsel  cited various  authorities of this Court.  There cannot  be cited  various authorities  of this Court. There cannot be any disputes with regard to  the well settled law that the appellants court should be slow in reversing the  order of  acquittal unless there are good and strong  grounds  for  interference.  We  have  examined  the reasoning of  the trial  court and  High Court and find that the reasoning of the trial court in rejecting the evidence 4 8 is  highly discrepant  and patently  erroneous which could not accepted at all. The evidence of P.W.4 has been rejected on the  ground that  he is  an interested  witness being  an unola of  the deceased.  But as  said earlier, the mere fact that the witness happens to be a close relative is no ground to reject  his testimony  if his evidence is otherwise found to be  truthful. As  discussed above we find no infirmity in the evidence  of P.W.4. The  evidence of P.W.6 and other eye witnesses has been rejected by the trial court on the ground that after  the  bomb  had  exploded  P.Ws.  4,6  and  other witnesses would not have been able to see the miscreants who had hurled  the bomb  due to smoke after explosion. But this reasoning is  not only  faulty but  perverse a and could not accepted. It may be noticed  that all the eye witnesses have deposed that  they first saw the accused persons A-1, to A-3 and three  others emerging  from behind  the lorry stationed near a  place of  occurrence and  on exhortation  by A-1 the other accused  A-2 and A-3 hurled the bombs. It would be but natural such exhortation would have attracted the  attention of witnesses and they would have seen the accused/appellants hurling the  bombs. It  is common  knowledge that  the smoke will follow  later after  the hurled and exploded. The trial Court was,  therefore, patently  wrong   in holding that the eye witnesses  would not  have seen  the  occurrence  due to the smoke  emitted from  the explosion  of bombs.  The  High Court has  given cogent  and plausible reasons for rejecting the aforesaid  finding of  the trial court and accepting the evidence  of   said  eye-witnesses,  we  find  ourselves  in agreement with the view taken by the High Court.      Learned counsel  for the  appellants  lastly  contended that there  was failure  of electric supply and the electric light was  intermittently going  off and the shops were also closed by  8.00 P.M. and, therefore, it was not possible for the witnesses  to see  the accused persons and the incident. But on  scrutiny of  record we  find that  evidence is quite contrary to  the aforementioned  submissions.  The  evidence goes to show that there was no failure of electricity at the time of occurrence. If the electric failure was no frequent, the shop-keepers  wouldn’t take the risk and they would keep the Patromax  ready for  the occasion.  In these  facts  and circumstances of  the case  we find    no  grounds  for  any interference in the impugned judgment.      In the  result, Crl.  A. No.  425/83 is  dismissed. The appellants are  on bail. Their bail serve out  the remaining sentence. However,  Crl. A.  No. 741/89  abates due  to  the death of sole appellant S. Srihari Naidu.