S. Sudershan Reddy And Others v. State Of A.P .

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 Penal Code, 1860 (in short “IPC”) and sentence of imprisonment for life as awarded by the learned Principal Sessions Judge, Kurnool.

2. Accusations which led to trial of the appellants were 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.

3. 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 Silver Jubilee College of Kurnool town. Thereafter they started on 2 two-wheelers i.e the deceased and PW 1 on the first vehicle, followed by PWs 2 and 3 on another vehicle. The deceased was driving the first of the abovementioned two-wheelers. PW 1 was the pillion rider. When the deceased and PW 1 reached near the railway gate located on their way, an autorickshaw overtook them. In that process, the deceased lost the control of the vehicle and they fell down. According to Ext. P-1, complaint lodged by PW 1 which was received by Sub-Inspector (PW 8) at about 10.30 p.m on the very same night, all the four appellants herein got down from the abovementioned autorickshaw and 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. R.K Prasad (MS), the doctor (PW 10) who conducted the post-mortem over the dead body of the deceased, there were a number of cut and stab injuries on the body classified under ten heads. Immediately, after the incident, PW 1 went to the residence of the deceased, informed the kith and kin of the deceased around 8.45 p.m Afterwards, PW 1 went to the police station and lodged Ext. P-1, complaint.

4. PW 8, the Sub-Inspector of Police who received Ext. P-1 at about 10.30 p.m, registered Crime No. 113 of 1999 under Section 302 IPC. He also informed the Inspector of Police (PW 9), Kurnool town at that relevant point of time. On receipt of the information, PW 9 went to the scene of offence, posted guard at the scene of offence and on the next morning i.e 28-4-1999, PW 9 secured the presence of witnesses PWs 1, 2, Sayed Bade Bi (PW 5) and B. Hussainappa (PW 6) and commenced the inquest around 7.30 a.m He seized MOs 1 to 3—the apparels of the deceased and after conclusion of the inquest, the dead body of the deceased was sent for post-mortem examination. On 8-5-1999 he arrested all the appellants at a place called “Papaji Dhaba”. During the course of interrogation the accused are said to have made a confessional statement, which led to the recovery of MOs 7 to 10 under the cover of Ext. P-14, mahazir. The charge-sheet was filed by the successor in the office of PW 9.

5. In order to establish the guilt of the appellants, the prosecution examined 10 witnesses, proved 15 documents and exhibited 10 MOs. Of the 10 witnesses examined, PWs 1, 2, 3 and 4 were cited as eyewitnesses. PW 1 did not support the prosecution case in full. Therefore, the prosecution cross-examined him. PW 2 did not support the prosecution case at all. Mala Venkateswarulu (PW 4)—the autorickshaw driver—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.

6. Similarly, T. Krishna (PW 7) who was the panch witness for Ext. P-14 i.e arrest mahazir of the appellant-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 appellant-accused were guilty of the offence with which they stood charged and convicted and sentenced each to suffer life imprisonment.

7. Questioning the 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 and 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 eyewitness 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.

8. On the contrary, stand of the State was that in Ext. P-1, complaint which was lodged immediately after the occurrence, name of PW 3 as an eyewitness 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, PW 4 who was examined on 1-11-2001 fully supported the prosecution version. He was cross-examined by the defence. Strangely, after about a 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.

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

10. In support of the appeal learned counsel for the appellants submitted that as the so-called eyewitnesses 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, PW 3 indicated the source of light for identification. Therefore, the trial court and the High Court should not have held the appellants guilty.

11. 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 PW 3 to be a truthful witness. Therefore, the conviction cannot be faulted. Additionally, the plea relating to the absence of the source of light in the FIR was not pleaded before the courts below. In any event the FIR was not required to indicate the minutest details. Therefore, it was submitted, the appeal deserves to be dismissed.

12. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the 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.

13. In Dalip Singh v. State of Punjab 1954 SCR 145, AIR 1953 SC 364, 1953 Cri LJ 1465 it has been laid down as under: (SCR p. 152)

“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 relative 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 generalisation. 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.”

14. The above decision has since been followed in Guli Chand v. State of Rajasthan (1974) 3 SCC 698 in which Vadivelu Thevar v. State of Madras 1957 SCR 981, AIR 1957 SC 614, 1957 Cri LJ 1000 was also relied upon.

15. 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 case 1954 SCR 145, AIR 1953 SC 364, 1953 Cri LJ 1465 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: (SCR pp. 151-52)

“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 Rameshwar v. State of Rajasthan 1952 SCR 377, AIR 1952 SC 54, 1952 Cri LJ 547 (AIR 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.”

16. Again in Masalti v. State of U.P (1964) 8 SCR 133, AIR 1965 SC 202, (1965) 1 Cri LJ 226 this Court observed (AIR pp. 209-10, para 14): (SCR p. 146)

“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 are the decisions in State of Punjab v. Jagir Singh (1974) 3 SCC 277, AIR 1973 SC 2407 and Lehna v. State of Haryana (2002) 3 SCC 76.

17. Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by PW 3 to contend about the desirability to throw out the entire prosecution case. In essence the 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 a major portion of the 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 the court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence of some of the witnesses has been found to be deficient. Falsity of a 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 liars. 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. State of U.P 1957 SCR 657, AIR 1957 SC 366, 1957 Cri LJ 550) (Also see Sucha Singh v. State of Punjab (2003) 7 SCC 643, JT (2003) 6 SC 348.)

18. 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 Bollavaram Pedda Narsi Reddy v. State of A.P (1991) 3 SCC 434 As has rightly been pointed out by the learned counsel for the respondent State such a plea was not taken either before 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 headlight. 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 the FIR is not an encyclopaedia of the facts concerning the crime merely because the minutest details of occurrence were not mentioned in the FIR the same cannot make the prosecution case doubtful. It is not necessary that the 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 the 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 Bollavaram case (1991) 3 SCC 434 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.

19. In Nathuni Yadav v. State of Bihar (1998) 9 SCC 238 this Court observed that under what circumstances the lack of moonlight 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 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 meagre, was enough for the assailants why should we think that the same light was not enough for the injured who would certainly have pointedly focussed their eyes on the faces of the intruders standing in front of them. What is sauce for the goose is sauce for the gander.”

20. 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 Bharosi 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 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.”

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

“11. 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 a known person from a close distance. That apart, it should be kept in mind that there was no difficulty in identifying the victim by the assailants because of existence of some light with which identification was possible. PW 1 being a close 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, PW 1 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 PW 1 to identify Accused 2 Vijaykumar. His deposition gets corroboration from the deposition of PW 3 who had seen Vijaykumar at the place of occurrence. PW 3 had not seen Vijaykumar causing any injury on the deceased because by the time PW 3 came near the place of the incident and noticed the incident, Vijaykumar had been prevented by PW 1 and his knife had fallen on the ground.”

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