Holding

The conviction of accused No.1 under Section 302 IPC is unsustainable and the appeal is allowed, resulting in his acquittal.

Summary

The Supreme Court examined the conviction of accused No.1 (A‑1) under Section 302 IPC for the murder of Abbai Reddy. The Court found that the testimony of the injured eyewitness (PW‑1) was riddled with inconsistencies, including contradictory statements about the location of the incident, the sequence of attacks, and the names of the accused. Photographic evidence (PW‑15) and other eyewitnesses (PW‑5, PW‑6) indicated that the crime scene was different from that described by PW‑1, suggesting that the scene had been shifted and the eyewitnesses planted. Additional procedural lapses, such as failure to seize the damaged car and mishandling of forensic evidence, further undermined the prosecution's case. Consequently, the Court held that the evidence was insufficient to sustain a conviction and allowed the appeal, acquitting A‑1.

Issues considered

Whether the testimony of PW‑1 is reliable and can support a conviction under Section 302 IPC.
Whether the alleged shifting of the crime scene affects the credibility of eyewitnesses.
Whether the identification parade and other forensic evidence were conducted properly.
Whether the prosecution established guilt beyond reasonable doubt for accused No.1.

Legislation cited

Indian Penal Code, 1860s. 120B, s. 148, s. 149, s. 302, s. 307, s. 324

Subjects

murdereyewitness reliabilitycrime scene alterationidentification paradeacquittalconviction reversalIndian Penal Codecriminal appeal

Judgment

- [2009] 7 S.C.R. 543

AKULA VEERA VENKATA SURYA PRAKASH @•81\BI A
V.
PUBLIC PROSEUCTOR, HIGH COURT OF AP.
Criminal Appeal No. 951 of 2001
MAY 5, 2009
[DR. ARIJIT PASAYAT ANO DR. MUKUNDAKAM
SHARMA, JJ.]
Penal Code, 1860 - s.302 - Prosecution u!ss. 120-B,
148, 149, 324, 307 and 302 /PC - Of nine accused - Injured .
eye-witnesses and eye-witnesses to the incident:....__. Trial court C
acquitting all the accused - High Court convicting Accused
No.1.uls.302 relying on the ·evidence ofPW1 (injured eye-
witness) -- Acquittal of others affirmed holding that eye-
witnesses not reliable as they were planted by changing the
. site of occurrence - On appeal, held: Conviction of accused b
No.1 not called for- Evidence of PW1 also norreliable a·s
there are various.discrepancies in his evidence - There are
various other discrepancies in prosecution case.
. ·~ .
· Appellant "accused No. 1 alongwith accused Nos. 2
to 9 u/ss. 1208, 148, 149, 324, 307 and 302. IPC. PW 1 (first E
informant), PW 2 (driver of the car) who were
accompanying the deceased at the relevant time, were
injured eye-witnesses. Pws 3 to 6, the close relatives of
the deceased were c;i1so the eye-witnesses. Trial court
acquitted all the accused of all· the charges. High Court F
confirmed the acquittal except of A-1 disbelieving the
evidence of PWs 3 to 6 as eye-witnesses relying on the
· evidence of PW 15(photographer) holding that scene of
~ccurrence was purposely shifted in order to plant these
eye-witnesses. A-1 was convicted u/s. 302 IPC holding that G
PW1 has given his name in FIR and he being an injured
witness was reliable . Hence the present appeal by A-1 . .
Allowing the.appeal, the Court
543 H
544 . SUPREME COURT REPORTS [2009] 7 S.C.R

A HELD:1.1 Evidence of PW1 is not reliable. According
to PW.1 both in the FIR and evidence, the car was stopped
near to the house of deceased and then car glasses were
broken and both deceased and P.W.1 were attacked inside
the car and thereafter the deceased was dragged out of
B the car, again attacked and pushed him on the ground. If
P.W.15's evidence to the effect that scene of offence is
different and dead body was found inside the car is
accepted, the evidence of P.W.1 to the effect, the
occurrence took place near to the deceased house and
c deceased was dragged out of the car and again attacked
and he fell down on the ground and thereafter the
deceased was taken to hospital is false. As a matter of
fact P.W.5 and PW-6 who are eye-witness to the
t
occurrence had stated that the deceased died on the spot.
D [Para ·10] [549-G-H; 550-A:B]
1.2. PW.1, in Ex.P.1 had stated that when the car was
reaching the house of deceased, A-1 was following the
car in the scooter, but in evidence he had stated that Al
was standing there and Al and others stopped the car.
E Though in Ex.P.1, P.W.1 stated that all the eight accused
attacked the deceased, in evidence P.W.1 had given
special role to A-1 stating that A-1 first attacked the deceased
and 5 other accused thereafter attacked the deceased.
According to P.W.15, P.W.5 and P.W. 6 the deceased died
F on the spot. In Ex.P.1 there is no reference about the death
of deceased. In evidence P.W.1 and P.W.22 would state
that the deceased was taken to hospital for treatment. This
is false especially as P.W. 1 gave telephonic information
about the murder of the deceased. [Para 11) [550-C-E]
G 1.3. P.W.1 in his evidence stated that he had given all
the names of accused in Ex.P-1 Complaint. This is not •
correct because he had mentioned only A-1 and 8 others.
P.W.22 also stated that P.W.1 did not give all the names.
P.W.1 did not choose to give the statement immediately
H when P.W.22 reached the scene. P.W.22 also did not care
AKULA VEERA VENKATA SURYA PR(l.KASH @ BABI V. 545
PUBLIC PROSEUCTOR, .HIGH COURT OF AP.

to take statement from P.W.1. Even though P.W.22 came A
to the scene at 8.00 P.M, along with photographer (PW
15), the complaint was registered at only 10.00 P,M. after
shifting the deceased from the scene of offence. The
reason appears to be that at that time Police was not able
to fix the identity of person who had attacked. That is the B
reason why no names have been given in Ex.P.1 except
A-1. PW-1 gave'telephone information stating that the
;
deceased was murdered. PW-22 confirms the information.
But PW-1 says he has not given any such i":f"?rmation.
[Para 11] [550-E-H; 551-A] c
2. T~ere are various other infirmities. There is no
reason as to why the damaged car was not seized. P.W.23
admits that in spite of instruction to S.I. Police the same
was nQt seized. P.W.23 Inspector of Police admits that
blood stain found in the car was not scrapped and sent 0
for the chemical experts. No reason is given for the same.
Though it is claimed that the blood stained earth and
sample has been taken from the new scene of offence,
Ex.P.94 shows it did not contain blood, it was soil and
ash. If the deceased was lying unconsciously, there is no E
reason as to why photographer was asked to take
photograph. There is no r~ason as to why P.W.22 did not
get the complaint from P.W.1 before taking the deceased
" to hospital. P.W.1 identified Al, A2 and A4 in the
Identification Parade before P.W.19 Magistrate, but P.W.2 F
identified only A4. [Para 12] [551-A-D]
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No: 951 of 2001
From the Judgement and Order dated 17.07.2001 of the
G
Hon'ble High Court of Judicature at Hyderabad, A.P. in Criminal
•• Appeal No. 1786 of 1999.
',
M. Karpaga Vinayagam, P.S. Narasimha, A. Venayagam ·
Balan, Swarup Reddy, A. Ramesh,_ 0. Mahesh Babu, with him
for the Appellant. H
546 SUPREME COURT RE:PORTS [2009) 7 S C.R.

A Altaf Fathima, D. Bharathi Reddy, for the Respondent.

The Judgement of the Court was delivered by

DR. ARIJIT PASAYAT, J.

. 1. Chalienge in this appeal is to the judgment ola
Division
B Bench of the Andhra Pradesh High Court pa.rtly allowing the
appeal filed by the State and setting aside the acquittal so far
as the present appellant is concerned while upholding the
acquittal in respect, of rest of the accused persons. · •

c 2. A-1 to A-9.-were tried for the offences under section
120B, 148, 149, 324, 307 & 302 of Indian Penal Code, 1860
(in short the 'IPC') for having caused th.e death of one Abbai
Reddy and injuries to Yedukondalu (P.W.1) and Mohammed
Basha (P.W.2). The trial Court acquitted all the accused on
12. 7.1999. State preferred appeal before the High Court. The
0
Appeal was allowed i.n respect of A-1 alone and he was
convicted for offence under Section 302 IPC and sentenced to
suffer imprisonment for life. The appeal in respect of A2 to A-9
was dismissed. Challenging the same, Criminal Appeal has
E been preferred by A-1.

3. Prosecution versio·n in nutshell is as follows:

On 4.11.1993 at about 7.00 P.M. Abbai Reddy (hereinafter
referred to as the 'deceased') and Yedukondalu (P.W.1) came
. in the car driven by P.W.2 Basha. While coming to the turning
F near to the house of the deceased, the accused persons Al .to
AB stopped the car and broke the front glass of the car. Then
they broke operi the doors bf the c_ar. All the. accused persons
attacked the-deceased Abbai Reddy with knives. Some accused
attacked P.W.1 ;:ilso, P.W.1 and PW-2 managed to escape after
G receiving injuries. P.W.3 to 6 are the close relative of the
deceased. Abbai Reddy on hearing the cries came out of the
house and saw these accused running away from the scene
after attacking the deceased. •
P.W.1 made a telephonic call to P.W.22 S.I. of Police and
H
AKULA VEERA VENKATA SURYA PRAKASH @ BAB! V. 547

. ·""
PUBLIC PROSEUCTOR, HIGH COURT OF A.P[DR. ARIJIT PA$AYAT, J)

informed about the incident. P.W.22 after giving information to A
higher official came to the scene of offence along with P.W. 15
the professional photographer. He.took photograph of the victim
• deceased, car and the scene of offence. Then the deceased
and P.W.1 were taken to the hospital. There the Doctor (not
examined) declared Abbai Reddy dead. PW-1 was examined B
by PW-16 Doctor on 4.11.1993 at 9.00 p.m. The PW-16 doctor
issued Ex.P53 wound certificate. Thereafter, PW-22, S.I. Police
obtained the statement Ex,P1 from PW-1 at 9.30 p.m. and
registered the case atabout 10~00 p.m. under SecUon 3021PC
and other offences. PW-23 the Inspector of f;olice took up the c
. investigation and conducted the inquest on 5.11.1993. PW-17 ·
· conducted autopsy and iss.ued post mortem certfficate Ex.P54.
P.W.23 lnspectorof Police continued the investigation and
arrested the accused. During the course of investigation
·identification parade was conducted· by P.W.19 Magistrate, D
P.W.1 identifiedA1,A2 andA4. P.W.2 identifiedA4·alone.After
completing the investigation P.W.23filed the charge sheet. ·
P.W. 1to23 were examined on behalf of the prosecution.
Ex.P-1 to P-94 marked. D.W.1 was .examined on behalf of
accused. Ex.D-1 to D4 were marked. E

Al is the son 9f A9, A2 is the clerk under A-9, A3 to A5 are ·
close friends of Al, A6 to A8 are friends of A2, A9 is A l's father.
• There was a Quarry Business rivalry between A9 on the one
·hand and deceased Abbai Reddy on the other hand. The land F
belonging to one Haribabu was put to sale. Both A9 as well as .
deceased were trying to purchase the same, and ultimately
deceased Abbai Reddy purchased the land at_ higher price. Due
to~this ·there used to be frequent quarrels betWeen A9 and ·
deceased. P.W.1 Yedu~ondalu is business partner of deceased. G
P.W.2 Basha is the driver: P.W.3 is the elder brother, P.W.4 is
· " the friend, P.W.5 is the brother-in-law and P.W.6 is the wife of
the deceased Abbai Reddy.
The trial Court disbelieved the case of the prosecution and
acquitted all the accused. However, the High Court in the appeal H ·
548 SUPREME COURT REPORTS [2009] 7 S.C.R.

A filed by the State set aside the order of acquittal in respect of Al .,.
and convicted him for offence under Section 302 IPC and
confirmed the acquittal in respect of other accused.
4. It is relevant to take note of the grounds on which the
..
High Court sustained acquittal of A2 to A9. According to the
8 prosecution the occurrence had taken place near to the house
of the deceased from where P.W.3 to 6 had witnessed the
occurrence. The. evidence of PW.3 to 6 is not reliable because ,
P.W.3 to 6 could not have seen the occurrence from the
deceased house as the scene of offence has been purposely
C shifted from the actual scene of offence to a place near to the
market yard from the place near to the house of deceased in
order to plant P.W.3 to 6 as eye witnesses. The evidence of
P.W.1 ~Photographer who had photographed the actual scene
of offence would show that the scene of offence is a place
D opposite to the market yard which is far away from the house of
deceased. ~

5. Now the reasons which weighted with the High Court to
set aside acquittal of A 1 need to be noted. Since P.W.1 has given
the names of Al in Ex.P.1 FIR and he is an injured witness, his
E evidence alone is believed to convictA-1 for Section 302 IPC.

6. Learned counsel for the appellant submitted that the High
Court disbelieved the evidence of P.W.3 to 6 mainly on the basis
of the evidence of P.W.15. If the finding given by the High Court ~
F in the light of the evidence of P.W.15 Photographer that P.W.3
to 6 is unreliable, would falsify the entire prosecution case. As
such P.W.1 also cannot be believed also.
7. The specific findings of the High Court are as follows: ·
(1) The exact scene of offence is in front of market yard
G
which is far away from the house of deceased and not the
place near to the house of the deceased. •
(2) P.W.15 has taken the photograph of the dead body
inside the Car. So deceased must have been attacked
H and murdered inside the car itself.
v

AKULA VEERA VENKATA SUFWA PRAKASH @ BABI V. 549
PUBLIC PROSEUCTOR, HIGH COURT OF A.P.[DR. ARIJIT PASAYAT, J.]
~
(3) Scene of offence is purposely shifted from the Market A

- yard to place near to the house of deceased in order to
plant P.W.3 to 6 relatives of the deceased as eyewitnesses.
Since the scene of offence is different place, P.W.3 to
P.W.6 could not have seen the occurrence. So they are
unreliable. B
8. The Special Leave Petition filed against acquittal of A2
),
to A9 by the State has been dismissed on 16.9.2002. So this
finding has become final. As such the finding of the High Court

--
~
. as well as evidence of P.W.15 Photographer orHhe basis of
which the said finding ·was given would completely falsify the c
case of prosecution. So P.W.1 also cannot be believed.

9. To this effect, the following finding has been given by
the trial Court.

... "PW-15 Gathula Syamalarao, Photographer and his D
evidence shows that on 4.11.1993 he took photos in
· connection with the death of deceased Abhai Reddy at
Korukonda road. lri this Chief examination he stated the
exact place is opposite to market yard and it was done in
the evening time. He took Exs. P.17 to 34 photos and Exs. E
P.35 to 52 are its negatives. He further says that he took
the photos on the dead body of the deceased and the .car.
'~- ); In the cross examination he says that he took more than
20 photos in the crime and also stated the police have
shifted the position of the dead body of the deceased so F
as to suit better appreciation. But the photograph was

.
~( taken while the dead body was inside the car".
10.' Learned counsel. for the respondent supported the
judgment of the High .Court. Analysis of the evidence in the
background of conclusions of the High Court would reveal G
following aspects. According to P.W.1 both in the FIR and
.. -{
evidence, the car was stopped near to the house .of deceased
and then car glasses were broken and both decea-sed and P.W.1
were attacked inside the car and thereafter the deceased was
dragged out of the car, again attacked and pushed him on the H
550 SUPREME COURT REPORTS [2009] 7 S.C.R.

A · ground. If P.W.15's evidence to the effect that'scene of offence
is different and dead body was found inside.the car is accepted,
the evidence of P.W.1 to the effect the occurrence took place .
near to the deceased house and deceased was dragged out of
the car and again attacked and he fell down on the ground and
B thereafter the deceased was taken to hospital is false. As a
matter of fact P.W.5 and PW-6 who are eyewitness to the
occurr~nce had stated that Abbai Reddy died on the spot.
Similarly P.W.15 would state he had taken photograph of dead
body.

C 11. Coming to the evidence of PW.1, in Ex. P.1, he had
stated that when the car was reaching the house of deceased, ,.
A-1 was following the car in the scooter, but in evidence he had
stated that Al was stariding there at Ramakrishna Mission and
Al and others stopped the car. Though in Ex.P.1, P.W.1 stated
D that all the eight accused attacked the deceased, in evidence
P.W.1 had given special role to A-1 stating thatA-1 first attacked
the deceased and 5 other accused thereafter attacked the
deceased. According to P.W.15, P.W.5 & P.W. 6 Abbai Reddy
died_9nJhe spot. In Ex. P.1 there is no reference about the death
E of deceased. In evidence P.W.1 and P.22 would state that the
deceased was taken to hospital for treatment. This is false
especially as P.W. 1 gave telephonic information about the
murder of Abbai Reddy: P.W.1 in his evidence stated that he
had given all the names of accused in Ex.P-1 Complaint. This_,
F is not correct because he had mentioned only A-1 and 8 others.
P.W.22 also statedJhat p. W.1 did not give all the names. P.W.1
.did not choose to give the statement immediately when P.W.22
reached the scene. P.W.22 also did not care to take statement
from P.W.1. Even though P.W22 came to scene at 8.00 P.M,
G along with photographer, the complaint ~as registered at only
10.00 P.M. after shifting the deceased from the scene of offence.
The reason appears to be that at that time Police was not able
...
to fix the identity of person who had attacked. That is the reason
why no names have been given in Ex.P.1 except A-1. PW-1
gave telephone information stating that the deceased was
H
AKULA VEERA VENKATA SURYA PRAKASH @ BABI V. 55t
PUBLIC PROSEUCTOR, HIGH COURT OF A.P[DR. ARIJIT PASAYAT, J.]

·t murdered. PW-22 confirms the information-. But PW~lsays he A
has not given any such information.

•
12. There are various other infirmities. There is no reason
as to why the damaged car was not seized. P.W.23 admits that
in spite of instruction 'to S.I. Poli<;:e the same was not seized.-
P.W.23 Inspector of Police admits that blood stain found in the B
car was not scrapped and sent for the chemical experts. No
reason is given for the same. Though it is claimed that the blood
;
stained earth and sample has been taken from the new scene
of offE~mce, Ex.P,94 shows it did not contain blood, it was soil
....r and ash. If the deceased was lying unconsciously, there is no c
· reason as to why photographer was asked to take_ photograph.
There is no reason as to why P.22 did not get the complaint
from P.W.1 before taking deceased to hospital. P.W.1 identified
Al; A2 and A4 in the Identification Parade before P.W.19'
• Magistrate, but P.W.2 identified only A4 . D
,;
13. The inevitable conclusion is that the appeal deserves
to be allowed which we direct. The bail bonds executed to give
effect to the order of bail passed by this Court on 29.11.2001
shall stand discharged.

K.K.T. Appeal allowed .

...