MALOTH SOMARAJUversusSTATE OF AP.

                    [2011) 10 S.C.R. 349


                    MALOTH SOMARAJU                                A
                               v.
                      STATE OF AP.
            (Criminal Appeal No. 1849 of 2008)
                     AUGUST 17, 2011                               B
       [V.5. SIRPURKAR AND T.S. THAKUR, JJ.]

      Penal Code, 1860 - s. 302 - Accused alleged to have
committed murder of his elder brother by inflicting fatal
injuries by axe at night - Acquittal by trial court - However,     C ·
conviction and sentence u/s. 302 by High Court - On appeal,
held: Trial court got swayed away by the so-called irrelevant
suspicious circumstances which resulted into the acquittal of
the accusec - High Court dealt with all the other aspects in
detail and also considered the evidence without being              D
influenced by all the irrelevant and imaginary suspicious
circumstances - PW 1 (wife of deceased) was a truthful and
reliable eye-witness - She had a close relation with the
accused who was her real brother-in-law and was not expected
to commit any mistake in identifying him and she would             E
certainly be interested in naming the culprit since she had lost
her husband - She was a natural witness and her presence
in her own household was also absolutely natural - PW-1
lodged the FIR barely within 4-4112 hours of the accident which
is complete in all the details - FIR completely corroborates       F
her evidence - She stood her cross examination extremely
well -Other prosecution witnesses who had rushed to the
scene of incident hearing the shrieks of PW-1 and had
allegedly seen the accused, turned hostile, cannot be viewed
as a suspicious circumstance - Quality of the evidence of          G
PW-1 is very high and her evidence alone is sufficient_for the
conviction of the accused - Thus, order passed by the High
Court is upheld.

     Criminal law - Judgment of acquittal - Sustainability of
                          349                                 H
    350    SUPREME COURT REPORTS               [2011] 10 S.C.R


A   - Held: Merely because the acquittal is found to be wrong and
    another view can be taken, the judgment of acquittal cannot
    be upset.

       According to the prosecution, appellant-accused
8 committed murder of his elder brother 'K' by inflicting
  fatal injuries by an axe, to his temporal region, nose and
  face. At the time of the incident around 2.00 a.m., 'K' was
  sleeping on his cot along with one son and his wife PW
  1 was sleeping on the other cot along with the another
C son. PW-9 (cousin of PW 1) also slept there on another
  cot. At that time suddenly, the appellant came and
  assaulted 'K'. PW 1 raised cry and on hearing her,
  relatives of her husband, her father-in-law (PW-4), her
  mother-in-law (PW-3), elder brother-in-law (PW-6) and his
  wife (PW-5), her second brother-in-law (PW-6) and his wife
D (PW-7) came there. On seeing them the accused fled
  away. 'K' was immediately taken to the hospital where he
  was declared as brought dead. PW-1 lodged a report.
  Being illiterate, she got scribed the report by PW-14 and
  submitted it to the police station at 6.30 a.m. in the
E morning. PW 1 stated in the complaint that the appellant-
  accused bore a grudge against her husband. On that day
  her husband did not go for the duty and on that night she
  and her husband and her cousin were sleeping and she
  woke up her husband to attend the call of nature.
F Thereafter, she and her husband slept and while they
  were talking to each other. The accused came from
  behind and assaulted him. The Sessions Judge acquitted
  the appellant-accused. However, the High Court
  convicted the accused of the offence u/s. 302 IPC and
G awarded sentence of life imprisonment. Therefore, the
  appellant filed the instant appeal.
          Dismissing the appeal, the Court

        HELD: 1.1 There can be no two opinions that merely
H   because the acquittal is found to be wrong and another
      MALOTH SQMARAJU v. STATE OF AP.                  351


v,iew can be taken, the judgment of acquittal cannot be A
upset. The appellate court has more and serious
responsibility while dealing with the judgment of acquittal
and unless the acquittal is found to be perverse or not at
all supportable and where the appellate court coines to
the conclusion that conviction is a must, the judgment of B
acquittal cannot be upset. It is quite clear from the High
Court's judgment that the High Court has certainly taken
that care while upsetting the acquittal. [Para 5) (361-E-G]
     1.2 The High Court wholly relied on the direct
testimony of PW-1 and carefully examined her evidence          C
threadbare. The High Court correctly found that she had
a close relation with the accused who was her real
brother-in-law and she was not expected to commit any
mistake in identifying him; that she would certainly be
interested in naming the culprit since she had lost her        D
husband; and that that she was a natural witness and her
presence in her own household was also absolutely
natural. Her version_ that she woke up her husband to
attend the call of nature is the most natural version and
that has been specifically stated in the first information     E
report which was filed barely within 4 - 4Yz hours after the
incident. Very significantly, PW 1 did not speak about her
having lighted the bulb, in her examination-in-chief;
however, in her cross-examination, when it was
suggested to her that there was no power during that           F
-night, she specifically refuted the suggestion and then
asserted that she had switched off the bulb before going
to the bed and had switched on the same after she ~ad
awakened to attend the call of nature. This theory of her
switching on the bulb, having been introduced in the           G
 cross-examination, becomes all the more significant. The
High Court, therefore, accepted her version that she had
put on the bulb and had not switched it off after she and
her deceased husband returned to the bed after
answering the call of nature. Therefore, whatever doubts       H
    352   SUPREME COURT REPORTS               [2011] 10 S.C.R.


A could have been raised because of the night being a new
  moon night and the prevalence of darkness on the spot,
  were also got dispelled by the defence by its cross-
  exam ination. The High Court also considered the
  submission for the defence that the accused could not
B have inflicted the injuries on the face of the deceased
  and, more particularly, front part thereof, if after answering
  the call of nature, both were talking to each other,
  meaning thereby that the deceased was in a sitting
  position. The High Court pointed out through the
c evidence of PW-1 that the deceased was in the lying
  position and it is on that basis that the High Court has
  rejected the defence theory and upheld the evidence of
  PW-1. The High Court also found that there could not
  have been any motive on the part of PW-1 to falsely
  implicate her husband's brother. The defence theory was
0
  that the sister of the deceased was married to her brother
  and her brother had committed suicide and in fact PW-1
  was holding the accused to be responsible for the
  suicide. There being no support to this theory in
  evidence, the High Court rightly ignored the same. PW-1
E was not cross-examined in respect of the controversy
  regarding the number of cots. She, in her evidence, had
  claimed that there were three cots and she, her husband
  and two sons were sleeping on the two cots, whereas the
  third cot was occupied by her cousi_11. Relyjng on the
F sketch drawn by the investigating officer as a1so on the
  photographs, it was suggested that only one cot was
  found. The High Court rejected this theory that the sketch
  which is the sketch drawn by the investigating officer was
  admissible in evidence. The High Court found that even
G if it was held to be admissible, admittedly, the sketch was
  drawn by 11.30 am and, therefore, the possibility of the
  two other cots, which had no signs of any blood or any
  other material evidence having been found, could not be
  ruled out. On the aspect of the cot as well as the position
H of the deceased and the location of the injuries on the
        MALOTH SOMARAJU v. STATE OF A.P.                  353


 face of the deceased, the reasoning given by the High A
 Court is quite satisfactory. With regard to the clothes of
 PW-1, being stained with blood, it is an admitted position
 that her clothes which were stained with blood were
 neither seized by the investigating agency nor were they
 seht for the chemical examination. The High Court B
 accepted the explanation of Sub Inspector PW-20 that
 her clothes even otherwise could have stained with
 blood because she had carried the deceased in the auto·
 rickshaw to the hospital and, therefore, the clothes were
 not material. There is no reason to reject this reasoning c
 of the High Court. The submission that it was a doubtful
 circumstance and in the absence of the blood-stained
 clothes, the version of PW-1 could not be believed by the
 High Court and by this Court, cannot be accepted. [Para
 6] (361-H; 362-A-H; 363-A-H; 364-A·B]                      D
       1.3 PW-1 was thoroughly cross-examined and
  nothing could be brought out in her cross-examination
· which would bring her testimony into dark. She lodged
  the FIR barely within 4-41/2 hours of the accident. There
  is clear endorsement by the Magistrate that the FIR            E
  reached the Magistrate at 7.30 in the morning. Once this
  aspect of the timing is proved, the same must clinch the
· issue and then it cannot be imagined that PW-1 who was
  in the company of her relatives on her husband's side,
  would falsely implicate her own brother-in-law. The            F
  theory of false implication is just not possible as the lady
  hardly had any time to think about the false implication
  of her brother-in-law. The lady is illiterate. She could not
  have just created the theory that it was her brother-in-law
  who was the culprit, unless that wa$ the truth. On this        G
  backdrop, when the FIR is read it completely
  corroborates her evidence. [Para 7] (364-B-C; 365-G-H;
  366-A-B]
    1.4 The fir$t information report given by PW-1 i$
 complete in all the details. There were no contradictions       H
    354   SUPREME COURT REPORTS               (2011] 10 S.C.R.


A   in her evidence. She has supported the first information
    report fully. The assertion of PW 14 that the FIR was
    scribed at 10 0' clock cannot be correct, particularly, in
    view of the registration of the offence at 6.30 a.m. in the
    morning and the copy of the FIR having reached the
B   Magistrate at 7.30 a.m. It is obvious that PW-14 was falsely
    claiming the time of the FIR to be 10 O'Clock. PW-13 is a
    resident of another village. He is related to the accused
    as well as PW-1. His evidence would be of no
    consequence excepting to the evidence of judging the
C   behaviour of PW-1 in revealing the name of the accused
    in his cross examination by the defence. The evidence
    of PW-19 completely supports the theory that the FIR was
    received at 6.30 a.m. and at the same time was registered.
    There is absolutely no cross examination of PW-19 except
    a bald suggestion that the time of the report was
0
    manipulated. All the evidence clearly shows that PW-1
    was a truthful witness. She stood her cross examination
    extremely well. [Para 8-9] [366-B-C-F-G; 367-A-F]
       1.5 It is not the quantity but the quality of the
E evidence which clinches the issue in the criminal trial of
  this type. The quality of the evidence of PW-1 is very high
  and her evidence alone is sufficient for the conviction of
  the accused. However, PW-2 the father of the deceased
  claimed that he was called at 12 midnight or at 1 a.m. by
F his deceased son that somebody had hit him and had
  broken his head. He claimed to have tied the towel to the
  head of the deceased and gave him water. At that time
  PW-1 and her children were sleeping in the house and
  the door was bolted from outside. He claimed to have
G opened the door and it is then that PW-1 came out. He
  was declared hostile and the whole statement made by
  him being totally contradictory was got proved by the
  Public Prosecutor. [Para 10] [367-G-H; 368-A-B]
         1.6 In the cross examination of PW-2 by the defence,
H   it has come that PW-1 had told him in the hospital that
        MALOTH SOMARAJU v. STATE OF A.P.                   355


 the accused was the person responsible for the injuries.         A
 Thus, PW-1 had told the name of the accused even to PW-
 2 which is a relevant piece of evidence. The evidence of
 PW-5 and PW-6 is of no consequence except to the extent
 that he was present along with PW-4 and his father PW-
 2 in the hospital. He tried to improve upon his story to         B
 the effect that PW-1 had expressed to him as to who was
 the assailant. He was also declared hostile. Therefore, his
 evidence would be of no consequence. PW7, PW-8, PW-
 9, PW-10, PW-11 and PW-12 were also declared hostile
 and their evidence is of no consequence excepting to the         c
 extent stated earlier. The panch witnesses, namely, PW-
 15 and PW-16 have also turned hostile. When the
 evidence of all these persons who were the relatives of
 the deceased is compared, it is significant that it has
 nowhere come that PW-1 's paternal relatives were there.
                                                                  0
 In fact she was surrounded by all the relatives of her
 husband and yet she named her husband's younger
 brother as the accused in h.er FIR. It cannot be imagined
 that she would be falsely implicating the accused in
 presence of all the relatives of her husband's side.
 Therefore, PW-1 is a completely reliable witness. [Para 11]      E
 [368-G-H; 369-A-E]

       1.7 The evidence of discovery of the murder weapon
  is not proposed to be believed for the reasons given by
  the courts below; however, that would not give any F
  benefit to the accused whose presence on the spot and
  whose act of hacking the deceased was fully proved by
  the evidence of PW-1. The non-examination of the two
  child witnesses could not be viewed against the
  prosecution. After all, they were of the tender age and to G
  put them in the witness box would have been hazardous.
i Besides the prosecution had put all the witnesses in the
  witness box who had rushed on hearing the shrieks by
  PW-1 and initially all those witnesses had allegedly seen
  the appellant/accused. It is a different affair that all of them H
                         ,
    356     SUPREME COURT REPORTS                [2011] 10 S.C.R.


A . turned hostile, obviously in order to save the appellant/
    accused who was their own kith and kin. Therefore, it is
    not viewed to be a suspicious circumstance. (Para 12)
    [369-F-H; 370-A-B]

        1.8 Much importance is not attached to this
8
   insignificant discrepancy of the murder weapon (hunting
   sickle or an axe) as it may be that PW-1 could not
   differentiate between the hunting sickle and the axe, both
   of which are fitted with a wooden handle. There are some
   suspicious circumstances mentioned in the judgment of
C the trial court. The trial court got swayed away by the so-
   ca lled irrelevant suspicious circumstances which
   resulted into the acquittal of the appellant. The High Court
   in its judgment, dealt with all the other aspects in detail
 - and also considered the evidence without being
D influenced by all these irrelevant and imaginary
   suspicious circumstances. The judgment of the High
   Court is wholly approved and confirmed. [Para 13) [370-
   C-D; 371-F-H]

E       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1849 of 2008.

        From the Judgment & Order dated 31.01.2008 of the High
    Court of Judicature, Andhra Pradesh at Hyderabad in Criminal
    Appeal No. 47 of 2006.
F
       Anand Dey, D. Bharat Kumar, Rajshree N. Reddy, Abhijit
    Sengupta for the Appellant.

        I. Venkatanarayana, D. Mahesh Babu, Ramesh Allanki,
G   Savita Dhanda, V. Pattabhi Ram for the Respondent.

          The Judgment of the Court was delivered by

         V.S. SIRPURKAR, J. 1. Appellant Maloth Somaraju
    challenges the judgment of the High Court whereby the High
H   Court allowed the State appeal challenging the acquittal by the
        MALOTH SOMARAJU v. STATE OF A.P.                       357
               [V.S. SIRPURKAR. J.]

Trial Court. He was tried for the offence punishable under             A
Section 302, IPC on the allegation that on 15.05.1999 at about
2 a.m. at night he committed the murder of his elder brother
Maloth Krishna (hereafter referred to as "deceased" for short)
by causing his death with an axe injuring his temporal region,
nose and face which ultimately resulted in his death.                  B

The prosecution story in short conspectus

     Deceased was a worker in Singereni Collaries. He used
to go for his duty at about 12.30 p.ril. at night every day. On
the fateful day, he did not go for his duty. At the time when the      C
incident happened, he was sleeping on his cot along with one
son. It is the prosecution case that besides him was another
cot on which his wife Heeramani (PW-1) was sleeping along
with another son. Besides these two cots, there was another
cot on which was o'ne Haridas (PW-9) who was the cousin of             D
Heeramani (PW-1) was sleeping.

     2. It is the case of the prosecution that at that time suddenly
the appellant came and assaulted Krishna which incident was
seen by Heeramani (PW-1) who raised cry which attracted the            E
neighbours who were mostly the relatives of her husband
including his parents, his brother, his sister-in-law and cousins
of the deceased. All his relatives are Banjara by caste. The
deceased was immediately carried in an auto rickshaw to
Singereni hospital where he was declared as brought dead. On
                                                                       F
that Maloth Heeramani (PW-1) had lodged a report before
Kothagudem Police Station. Since she was illiterate,
Heeramani (PW-1) got scribed the report by Rayala
Sathyanarayana (PW-14) and submitted it to Kothagudem
police station at 6.30 in the morning. It has come on record that      G
the report was immediately forwarded to the concerned
Magistrate who received it at 7.30 in the morning. In this report
Heeramani (PW-1) complained that in the midnight she woke
up her husband for answering the ¢all of nature. After that, she
and her husband slept. As they were talking to each other, her
brother-in-law Maloth Somaraju, the accused-appellant came             H
    358   SUPREME COURT REPORTS                [2011] 10 S.C.R.


A from behind the house with a sickle (Kota Kathi) and attacked
  her husband on his left temporal, nose and under the nose due
  to which there was heavy bleeding. She further suggested that
  she raised cry and on hearing her cries, her father-in-law
  Balunayak (PW-2), her mother-in-law, Maloth Bhikri (PW-3),
B elder brother in law Amar Singh (PW4), his wife Kausalya (PW-
  5), her second brother in law Phool Singh (PW-6), his wife
  Maloth Dwali (PW-7) came there. On seeing them, accused
  Somaraju fled away. After that her husband was shifted in the
  auto of Mohan Rao to Company Singereni main hospital.
c However, the doctors there told that her husband was dead.
  She then narrated that accused/appellant was addicted to
  drinking and used to come to house and beat her in-laws and
  was harassing them for which her husband had to pacify them
  and about fifteen days back when the accused bit her in-laws,
  her husband had beaten the accused and it was because of
0
  this that he bore grudge against her husband and axed her
  husband. The offence was registered and the investigating
  officer rushed to the spot, got executed inquest Panchnama as
  also got drawn the map of the spot and sent the body for
  autopsy. Autopsy was conducted by M. Gopal Swamy (PW-16).
E Autopsy report is Exhibit P-19. The autopsy was conducted at
  11 a.m. in the morning. According to the doctors, the
  approximate time of death was 8 to 10 hours before the
  autopsy. After the completion of the investigation, the charge-
  sheet was filed. At the trial, the prosecution examined as many
F as 20 witnesses and marked 31 documents. In his defence, the
  plea of accused is of total deny. There was no defence
  evidence tendered by him. The Sessions Judge acquitted the
  accused which acquittal was challenged by the State by filing
  an appeal which appeal was allowed convicting the accused
G of the offence under Section 302, IPC and awarding sentence
  of life imprisonment.

       3. Shri Anand Dey, learned counsel appearing on behalf
  of the appellant contended before us that the High Court had
H committed an error in upsetting the verdict of acquittal given
       MALOTH SOMARAJU v. STATE OF A.P.                   359
              [V.S. SIRPURKAR, J.]
by the trial Court. The learned counsel urged that the Sessions A
Judge had taken a possible view and merely because another
view could be taken of the matter, the High Court could not have
converted the verdict of acquittal into that of conviction. The
learned counsel strenuously and painstakingly took us through
all the evidence and contended that Heeramani (PW-1) was the B
sole eye witness and it was impossible for her to identify the
accused as admittedly she as well as the deceased were
sleeping in the courtyard and that was a new moon night and
thereby there was complete darkness. Learned counsel further
argued that there were number of suspicious circumstances in     c
the matter inasmuch as though her own cousin was sleeping
on the third cot, he did not support the prosecution when he
was examined as PW-8. In fact the learned counsel was at
pains to suggest that Heeramani (PW-1) had a definite motive
to falsely implicate the accused inasmuch as the sister of her
                                                                  0
husband had married her brother and both her brother as well
as his wife had died unnatural death because of which the
relations between her family and the family of her husband were
strained. It was further argued that the whole investigation was
slipshod and casual inasmuch as the investigating officer had . E
not even sent the blood stained clothes of the only eye witness
for examination. He did not even send the clothes which were
blood stained. Learned counsel pointed out from the record that
though it was the version of the witness that there were three
cots in the courtyard, when the investigating officer went there,
only one cot was found. The investigating officer did not even F
bother to seize the cot which was blood stained. That apart,
the learned counsel pointed out that there were serious
discrepancies in the matter as the scribe of the FIR, Rayala
Sathyanarayana (PW-14) had suggested that he had written the
report at about 9-9.30 a.m. According to the learned counsel, G
by then, her relations and, more particularly, Bhukya Dhalsingh
(PW-13) had come and, therefore, there was every possibility
that the relatives had persuaded her to falsely implicate the
accused on account of the strained relations. The learned
counsel also pointed out that it had come in the evidence that H
        360    SUPREME COURT REPORTS                  [2011] 10 S.C.R.


    A the Heeramani (PW-10) was in fact sleeping inside the house
      and outer door was chained from outside and in fact it was only
      after the said door was opened by her father in law, who come
      immediately after the assault, that she came out and, therefore,
      it was impossible for her to see the accused. In the FIR, she
    B had never referred to any bulb and that she had made the
      improvement regarding existence of a bulb/ source of light only
      in her cross-examination. Learned counsel, therefore, urged that
      if all these suspicious circumstances were viewed in favour of
      the verdict of acquittal, the High court should not have upset the
    c verdict merely because some other view favouring the
      conviction was possible.
              4. As against this, Shri I. Venkatanarayana, learned senior
        counsel appearing on behalf of the State very strongly
        supported judgment of the High court and contended that though
    D   the house of the deceased was in the village; it was right on
        the road, and therefore, there was a possibility of the street
        lights being there. The learned counsel argued that the evidence
        of Heeramani (PW-1) is natural evidence as she could not
1       have been elsewhere when the incident occurred. Her
    E   presence, therefore, was absolutely natural. He also pointed
        that her version is confirmed as she had taken the name of the
        accused barely in 3-4 hours after the incident, in her FIR.
        Considering that she was an illiterate lady there was no question
        of her falsely implicating the accused. The learned counsel
    F   pointed out that her own relations from her father's side could
        not have been present at 6.30 a.m. as they are the residents
        of the other village. He further pointed that the investigating
        officer had given the full explanation as to why he did not seize
        her blood stained clothes. As regards the cots, the explanation
    G   given by him was that it was possible that the cots were
        removed for being cleaned as admittedly there was huge
        amount of blood which was clear from the fact that even the
        earth became blood stained. The learned counsel further
        pointed out that the version given by her father-in-law about the
    H   door being closed and chained from outside was obviously
        MALOTH SOMARAJU v. STATE OF A.P.                     361
               [V.S. SIRPURKAR, J.]
false as it was not supported by any other witness and it was        A
clear that all the hostile witnesses who were the direct relations
of the accused had the sole intention to save the accused. The
learned counsel supported the judgment of the High Court
saying that no other view was possible on the basis of the
evidence led. He pointed out that even assuming there was            B
darkness, Heeramani (PW-1) could not have committed
mistake in identifying her own brother-in-law who was barely
2-3 feet from her when the incident occurred. He pointed out
that the prosecution had proved all the contradictions brought
out in the cross-examination by the Additional Public Prosecutor     c
of the hostile witnesses. As regards the discrepancy in the FIR
regarding its timing, the learned counsel pointed out that if the
copy of the FIR reached the Magistrate as early as 7.30 in the
morning and it was not expected that an illiterate lady like
Heeramani (PW-1) to have necessary intention to falsely              0
implicate the accused. It is on the basis of these conflicting
claims that we have to see whether the High Court was justified
in upsetting and convicting the accused for the offence of
murder.
      5. The law dealing with the judgments of acquittal is now      E
settled. There can be no two opinions that merely because the
acquittal is found to be wrong and another view can be taken,
the judgment of acquittal cannot be upset. The appellate Court
has more and serious responsibility while dealing with the
judgment of acquittal and unless the acquittal is found to be        F
perverse or not at all supportable and where the appellate Court
comes to the conclusion that conviction is a must, the judgment
of acquittal cannot be upset. We have to examine as to whether
the High Court, while upsetting the acquittal, has taken such
care and it is quite clear from the High Court's judgment that       G
the High Court has certainly taken that care.
     6. The High Court has wholly relied on the direct testimony
of Heeramani (PW-1) and has carefully examined her evidence
threadbare. Firstly, the High Court has correctly found that she
had a close relation with the accused who was her real brother-      H
    362    SUPREME COURT REPORTS                  [2011) 10 S.C.R.


A   in-law and she was not expected to commit any mistake in
    identifying him. The High Court has correctly observed that she
    would certainly be interested in naming the culprit since she had
    lost her husband. The High Court has rightly found that she was
    a natural witness and her presence in her own household was
B   also absolutely natural. Her version that she woke up her
    husband to attend the call of nature is the most natural version
    and that has been specifically stated in the first information
    report which was filed barely within 4 - 4% hours after the
    incident. The High Court refuted the defence version that she
c   could not have identified the accused because of the darkness
    on the basis of the theory of the bulb, introduced in the cross-
    examination. Very significantly, she had not spoken about her
    having lighted the bulb, in her examination-in-chief; however, in
    her cross-examination, when it was suggested to her that there
    was no power during that night, she specifically refuted the
0
    suggestion and then asserted that she had switched off the bulb
    before going to the bed and had switched on the same after
    she had awakened to attend the call of nature. This theory of
    her switching on the bulb, having been introduced in the cross-
E   examination, becomes all the more significant. The High Court,
    therefore, accepted her version that she had put on the bulb
    and had not switched it off after she and her deceased husband
    returned to the bed after answering ~he call of nature. Therefore,
    whatever doubts could have been raised because of the night
    being a new moon night and the prevalence of darkness on the
F   spot, were also got dispelled by the defence by its cross-
    examination. The High Court has also considered the
    contention raised on behalf of the defence that the accused
    could not have inflicted the injuries on the face of the deceased
    and, more particularly, front part thereof, if after answering the
G   call of nature, both were talking to each other, meaning thereby
    that the deceased was in a sitting position. The High Court has
    pointed out through the evidence of Heeramani (PW-1) that the
    deceased was in the lying position and it is on that basis that
    the High Court has rejected the defence theory and upheld the
H   evidence of Heeramani (PW-1). The High Court has also found
       MALOTH SOMARAJU v. STATE OF A.P.                    363
              [V.S. SIRPURKAR, J.]
that there could not have been any motive on the part of A
Heeraniani (PW-1) to falsely implicate her husband's brother.
The defence theory was that the sister of the deceased was
married to her brother and her brother had committed suicide
and in fact Heeramani (PW-1) was holding the accused to be
responsible for the suicide. There being no support to this theory B
in evidence, the High Court has chosen to ignore the same and
in our opinion, rightly. The witness was not cross-examined in
respect of the controversy regarding the number of cots. She,
in her evidence, had claimed that there were three cots and she,
her husband and two sons were sleeping on the two cots, c
whereas the third cot was occupied by her cousin. Relying on
the sketch (Exhibit P-30) drawn by the investigating officer as
also on the photographs, it was suggested that only one cot
was found. The High Court has rejected this theory that the
sketch (Exhibit P-30) which is the sketch drawn by the D
investigating officer was admissible in evidence. The High Court
has found that even if it was held to be admissible, admittedly,
the sketch was drawn by 11.30 am and, therefore, the
possibility of the two other cots, which had no signs of any blood
or any other material evidence having been found, could not be E
ruled out. Even before us, Shri Anand Dey, learned. counsel
appearing on behalf of the appellant very strenuously argued
on the aspect of the cot as well as the position of the deceased
and the location of the injuries on the face of the deceased. We
are quite satisfied by the reasoning given by the High Court to
reject the claim of the defence in this behalf. Similar is the F
situation regarding her clothes being stained with blood. It is
an admitted position that her clothes which were stained with.
blood were neither seized by the investigating agency nor were
they sent for the chemical examination. The High Co1,1rt
accepted the explanation of Sub Inspector M. Kanda Reddy G
(PW-20). that her clothes even otherwise could have stained
with blood because she had carried the deceased in the auto
rickshaw to the hospital and, therefore, the clothes were not
material. We do not see any reason to reject this reasoning of
the High Court. Shri Dey, learned counsel, very strenuously H
    364     SUPREME COURT REPORTS                    [2011] 10 S.C.R.


A   urged that it was a doubtful circumstance and that in the
    absence of the blood-stained clothes, the version of Heeramani
    (PW-1) could not be believed by the High Court and by this
    Court. We do not see any reason to accept the argument by
    the learned counsel.
B        7. Heeramani (PW-1) was thoroughly cross-examined and
    nothing could be brought out in her cross-examination which
    would bring her testimony into dark. On the other hand, the
    theory of switching on the bulb was introduced by the defence
    in her cross-examination. What impresses us most about the
C   evidence of this witness is the fact that she lodged the FIR
    barely within 4-4Y2 hours of the incident. She is an illiterate lady,
    which is clear from the thumb mark on the FIR. It must be noted
    that after the incident which took place at 2 O' clock at night,
    the deceased was taken by her to the hospital. It has come in
D   the evidence of this witness that immediately after the incident,
    her father-in-law Balunayak (PW-2), her mother-in-law Maloth
    Bhikri (PW-3), Phool Singh (PW-6), her other brother-in-law and
    Dwali (PW-7), wife of Phool Singh (PW-6) had rushed to the
    spot and then the deceased was carried to the hospital. It is
E   obvious that she alone could not have carried her husband to
    the hospital and she must have been accompanied by the
    relatives on her husband's side. After her husband was
    declared dead by the hospital authorities, she straightaway went
    to the police station and lodged the FIR at 6.30 in the morning
F   which is clear from the evidence of Sub Inspector M. Konda
    Reddy (PW-20) as also from the FIR which we have seen
    ourselves. What impresses this Court most is the fact ~hat a
    copy of the FIR was sent to the Magistrate almost imme(jiately
    and it was received by.the Magistrate.at 7.30 in the mor~ing. It
G   was urged by Shri Dey, learned counsel, that this FIR was
    scribed by Rayala Sathyanarayana (PW-14) as per the
    dictation of Heeramani (PW-1) and that the same was scribed
    near the police station. The learned counsel invited our attention
    to the evidence of this witness where he has claimed that he
H   scribed the FIR (Exhibit P-1) at about 10 a.m. It has also come
       MALOTH SOMARAJU v. STATE OF A.P.                    365
             . [V.S. SIRPURKAR, J.]
in the evidence of this witness that the distance between the A.
police station and the hospital is about 2 Kms. and the distance
between the police station and the spot of occurrence is about
3 Kms. The learned counsel, therefore, very vehemently argued
that the theory that the FIR was lodged at 6.30 am has to fall
on the ground of evidence of this witness. The argument is 8
absolutely incorrect. True it is that the witness had stated that
he scribed the FIR at 10' o clock in the morning; however, Sub
 Inspector M. Konda Reddy (PW-20) has claimed that he
 received the FIR at 6.30 a.m. on 15.5.1999, on the basis of
which he took up the investigation. Men may lie, but the c
circumstances and the documents don't. The copy of the FIR
 is seen by us which specifically mentions the time of recording
of FIR 6.30 a.m. Further, the receipt of this FIR by the
Magistrate at 7.30 a.m. woµld obviously put an end to the theory
that the FIR was written by Rayala Sathyanarayana (PW-14) at 0
10 O' clock in the morning. It has also come in the evidence .
that the inquest on the dead body was itself held between 7
a.m. and 9.30 a.m. in presence of Banothu Srinivas (PW-15)
and M. Gopal Swamy (PW-16). Had the FIR been written at 10
a.m., the inquest held between 7 a.m. and 9.30 a.m. would
                                                                    E
never have been possible. We see no reason to disbelieve the
 inquest report (Exhibit P-21). The version of Sub Inspector M.
 Konda Reddy (PW-20) is also supported by the fact that he
 registered the offence and mentioned in the proforma FIR the
time as 6.30 a.m. We have seen the evidence of Sub Inspector
 M. Konda Reddy (PW-20) very closely on this aspect. There is F
 no cross-examination on this aspect excepting the bald
suggestion that the time of the offence and the time of the report
were manipulated to cover up the lapses on the part of the
 investigating agency. We do not see any justification to this bald
suggestion, particularly in view of a clear endorsement by the G
Magistrate that the FIR reached the Magistrate at 7.30 a.m.
Once this aspect of the timing is proved, the same must clinch
the issue and then it cannot be imagined that Heeramani (PW··
 1) who was in the company of her relatives on her husband's
 side, would falsely implicate her own brother-in-law. The theory H
    366    SUPREME COURT REPORTS                  [2011) 10 S.C.R.


A of false implication is just not possible as the lady hardly had
  any time to think about the false implication of her brother-in-
  law. The lady is illiterate. She could not have just created the
  theory that it was her brothercin-law who was the culprit, unless
  that was the truth. On this backdrop, when we read the FIR, it
B completely corroborates her evidence.
         8. The first information report given by this witness is
    complete in all the details. She very specifically stated that on
    that day her husband did not go for the duty and on that night
    she an<;! her husband and her cousin were sleeping and she
C   woke up her husband to attend the call of nature. Thereafter,
    she and her husband slept arid while they were talking to each
    other the accused came from behind and axed the husband on
    his temporal, nose and under the nose. She also spoke about
    her raising cries and her relatives, namely, Balunayak (PW-2),
D   her father-in-law, Maloth Bhikri (PW-3), her mother-in-law, Amar
    Singh (PW-4), her elder brother-in-law, his wife Kausalya (PW-
    5) and the other brother-in-law Phool Singh (PW-6) and his wife
    Dwali (PW-7) having come on the spot. She has also referred
    to the fact that on seeing them the accused fled away. She has
E   further stated that after tbey brought the husband to the hospital
    in the auto of one Mohan Rao, the doctor told them that her
    husband was dead. She has also given reasons for the
    accused to attack her husband. The name of scribe is also to
    be found in the first information report. There were no
F   contradictions in her evidence ..She has supported the first
    information report fully.
        9. It was stated by the learned defence counsel that the
  scribe has given an altogether different time regarding writing
  of the first information report and had stated in the examination-
G in-chief as well as the cross examination the totally different ·
  timing. Very strangely, it has come in the cross examination
  itself by the defence that there was rumour among the people
  gathered there that the accused had killed the deceased. The
  first information report was scribed by PW-14 Rayala
H Sathyanarayana who said in his cross examination that it was
       MALOTH SOMARAJU v. STATE OF A.P.                         367
              [V.S. SIRPURKAR, J.]
at about 10 a.m. that he scribed the FIR. The learned defence           A
counsel very heavily relied on this assertion and pointed out
that though the FIR is shown to have been registered at 6.30
a.m., in fact it was scribed at 10 O'clock. We have seen the
evidence and we are of the firm opinion that his assertion that
the FIR was scribed at 10 O' clock cannot be correct,                   B
particularly, in view of the registration of the offence at 6.30 a.m.
in the morning and the copy of the FIR having reached the
Magistrate at 7.30 a.m. It is obvious that the witness was falsely
claiming the time of the FIR to be 10 O' Clock. Bhukya
Dhalsingh (PW-13) is a resident of another village called               c
Jethyathanda. He is related to the accused as well as
Heeramani (PW-1). He could reach the hospital at about 8 or
9 p.m. He asserted that Heeramani (PW-1) and others were
,n the hospital and he was told by Heeramani (PW-1) that the
accused killed her husband. Of course, this evidence would be           0
of no consequence excepting to the evidence of judging the
behaviour of Heeramani (PW-1) in revealing the name of the
accused in his cross examination by the defence. He was
made to say that there was rumour among the people gathered
there that the accused had killed the deceased. The evidence
of M. Jithendar Reddy (PW-19) completely supports the theory
                                                                        E .
that the FIR was received at 6.30 a.m. and at the same time
was registered. He has also asserted that he sent the printed
registered FIR to the Additional JFCM, Mothagudem and also
marked the copies to concerned officers. There is absolutely
 no cross examination of this witness excepting a bald                  F
suggestion that the time of the report was manipulated. All this
evidence clearly shows that Heeramani (PW-1J was a truthful
witness. She stood her cross examination extr~ely well.

     10. It is not the quantity but the quality of the evidence which   G
clinches the issue in the criminal trial of this type. The quality
of the evidence of Heeramani (PW-1) is very high and her
evidence alone is sufficient for the conviction of the accused.
We will, however, consider the evidence of other witnesses like
Balunayak (PW-2), the father of the deceased who claimed that           H
      368    SUPREME COURT REPORTS                 [2011) 10 S.C.R.


  A he was called at 12 midnight or at 1 a.m. by his deceased son
    that somebody had hit him and had broken his head. He
    claimed to have tied the towel to the head of the deceased and
    gave him water. At that time Heeramani (PW-1) and her children
    were sleeping in the house and the door was bolted from
  B outside. He claimed to have opened the door and it is then that
    Heeramani (PW-1) came out. He was declared hostile and the
    whole statement made by him being totally contradictory was
    got proved by the Public Prosecutor.

          11. He has of course failed to say anything about the bolted
  C door from outside and about his having woken up his daughter
    in law i.e. Heeramani (PW -1) in his statement before the
    police. Those are clear omissions. On the other hand, the story
    told by him in contradictory portions of his statement under
    Section 161, Cr.P.C. suggests that he is not a truthful witness.
  D This is apart from the fact that he was extremely interested in
    saving the life of accused who is his son and further this part
    of his evidence was not supported by another witness including
    his wife Maloth Bhikri (PW-3) and the other witness, namely,
    Amar Singh (PW-4). Amar Singh (PW 4) significantly enough
· E deposed that on the night of death of Krishna he heard the cries
    of Heeramani (PW-1) at 1.30. a.m. which is the time told by
    Heeramani (PW-1) also. He was awakened by the cries of PW-
    1 and not by the cries of the deceased as was claimed by
    Balunayak (PW-2). That is the corroboration to the evidence
  F of PW-1 at least in respect of the time. It also wipes out the
    story of Balunayak (PW-2) that the deceased had shouted.
    Significantly enough, no other witness has stated to have been
    awakened by the cries of the deceased. In his cross
    examination by the defence, it has come that Heeramani (PW-
  G 1) had told him in the hospital that the accused was the person
    responsible for the injuries. Thus, Heeramani (PW-1) had told
    the name of the accused even to this witness which is a relevant
    piece of evidence. The evidence of Kausalya (PW-5) and Phool
    Singh (PW-6) is of no consequence excepting to the extent that
  H he was present along with Amar Singh (PW-4) and his father
       MALOTH SOMARAJU v. STATE OF A.P.                    369
              [V.S. SIRPURKAR, J.]

Balunayak (PW-2) in the hospital. He tried to improve upon his     A
story to the effect that Heeramani (PW-1) had expressed to him
as to who was the assailant. He was also declared hostile.
Therefore, his evidence would be of no consequence. Similar
is the story of Banoth Dwali (PW-7), Vankudoth Haridas (PW-
8), Maloth Haridas (PW-9), Maloth Badru (PW-10), Maloth            B
Devadas (PW-11) and Banoth Khalu (PW-12). All these
witnesses were declared hostile and their evidence is of no
consequence excepting to the extent stated earlier. We have
already referred to the evidence of Bhukya Dhalsingh (PW-13)
and Rayala Sathyanarayana (PW-14) in the earlier part of the       c
judgment. The panch witnesses, namely, Banothu Srinivas (PW-
15) and Malothu Balu (PW-16) have also turned hostile. When
we compare the evidence of all these persons who were the
relatives of the deceased, it is significant that it has nowhere
come that Heeramani's (PW-1) paternal relatives were there.        0
In fact she was surrounded by all the relatives of her husband
and yet she has named her husband's younger brother as the
accused in her FIR. We cannot imagine that she would be
falsely implicating the accused in presence of all the relatives
of her husband's side. Therefore, we are of the opinion that       E
Heeramani (PW-1) ·is a completely reliable witness.

     12. It was argued that in this case, the discrepancy of the
murder weapon was not properly proved and Shaik Gouse
(PW-17) was a stock witness who was a criminal. We also do
not propose to believe the evidence of discovery for the           F
reasons given by the Courts below; however, that would not give
any benefit to the accused whose presence on the spot and
whose act of hacking the deceased has been fully proved by
the evidence of Heeramani (PW-1). It was tried to be argued
by Shri Dey, learned defence counsel, that the prosecution did     G
not examine the two child witnesses. We do not think that that
could.be viewed against the prosecution. After all, they were
of the tender age and to put them in the witness box would have
been hazardous. Besides the prosecution had put all the
witnesses in the witness box who had rushed on hearing the         Ii
    370    SUPREME COURT REPORTS                    [2011] 10 S.C.R.


A   shrieks by Heeramani (PW-1) and initially all those witnesses
    had allegedly seen the appellanUaccused. It is a different affair
    that all of them turned hostile, obviously in order to save the
    appellant/accused who was their own kith and kin. We,
    therefore, do not view this to be a· suspicious circumstance.
8
          13. The learned defence counsel Shri Dey also argued that
    the weapon was different. While in the FIR, Heeramani (PW--
    1) had said the weapon to be Kota Kathi (hunting sickle), the
    learned defence counsel pointed out that the weapon which
    was seized was an axe. We do not attach much importance to
C   this insignificant discrepancy as it may be that Heeramani (PW-
     1) could not differentiate between the hunting sickle and the axe,
    both of which are fitted with a wooden handle. We have also
    some suspicious circumstances mentioned in the judgment of
    the trial Court. The first is regarding existence of bulb. The trial
D   Court held that the time of incident was not mentioned in the
    FIR (Exhibit P-1), but ignored the fact that the subject of bulb
    was brought in the cross-examination by the defence. The
    second circumstance is about Heeram1ni (PW-1) sitting on the
    cot and talking with her husband and not mentioning that the
E   husband was also lying on the cot. In our opinion, this
    circumstance is absolutely insignificant as it has been shown
    that her husband was actually lying on the cot as per her version
    in the Court. Third circumstance is the possibility of their not
    talking. That is absolutely insignificant and has to be ignored.
F   It is nothing unnatural. Fourth circumstance is the account of
    darkness. We have already explained that circumstance that
    even in the light that was available, it was quite possible for
    Heeramani (PW-1) to identify, which identification was further
    corroborated by her immediately naming the accused. Fifth
G   circumstance is about the position of the deceased which we
    have already explained. This circumstance could not be availed
    by the trial Court. Sixth circumstance is about existence of only
    one cot near the fence at some distance which was seen in
    photos. We have already explained this circumstance to be
H   insignificant as there was possibility of removing the cots since
       MALOTH SOMARAJU v. STATE OF A.P.                      371
              [V.S. SIRPURKAR, J.]
the panchnama took place at about 11 O'clock in the morning. A
Seventh circumstance is about blood stained clothes of
Heeramani (PW-1) not being seized to establish her presence.
We have explained this circumstance that there was very good
explanation given by the investigating officer. Eighth
circumstance is obviously incorrect, that being the delay in B
giving the report. Ninth circumstance is the cousin of Heeramani
(PW-1) not supporting the prosecution. That by itself cannot be
a suspicious circumstance, particularly, on the backdrop of the
FIR having been registered at 6.30 a.m. and the same having
been received by the Magistrate at 7.30 a.m. Tenth c
circumstance is about the relatives completely turning hostile
and notsupporting the version. This could not be held to be a
suspicious circumstance for the simple reason that they were
all interested in the accused. Eleventh circumstance is that
there was no strong motive to kill. The motive looses all its
                                                                     0
significance in the wake of eye-witness's account. Twelfth
circumstance is that there were possibilities of some other
persons attacking the deceased. There is absolutely no basis
for this wild imagination. We have already referred to the
thirteenth circumstance about bill book and held it to be not a
suspicious circumstance. Fourteenth circumstance is merely E
inferential. Fifteenth circumstance is that Heeramani (PW-1) did
not try to obstruct the deceased to give him blow after first blow.
That circumstance depends upon the individual reaction. We
do not attach any importance to such a circumstance. Last
circumstance is again about the cot. We do not think that that F
 is any relevant circumstance. Therefore, it is clear that the trial
court got swayed away by the so-called irrelevant suspicious
circumstances which resulted into the acquittal of the appellant.
The High Court has, in its judgment, dealt with all the other
aspects in detail and has also considered the evidence without G
 being influenced by all these irrelevant and imaginary
suspicious circumstances. We wholly approve of the judgment
of the High Court and confirm the same. In the result, the appeal
 has no merits and it is dismissed.
                                                                    H
N.J.                                        Appeal dismissed.