THE STATE OF ANDHRA PRADESHversusM.NARASIMHA RAO

--
                                          [2010) 10 S.C.R. 533


                         THE"STATE OF ANDHRA PRADESH                            A   •
     ..                            ..           v.
                             ,., . M.NARASIMHA
                                       .               RAO .'" ;'
                          (Criminal
                           .     .    .
                                        Appeal- No.. 1361 of 2003)
                                                -   '



                                             AUGUST 27, 2010.
 '.           .                                                                 B
              . . [HARJIT SINGH BEDI AND CHANDRAMAULI KR. .
              . . • . .. . . ' . PRASAD,
                                   .  ~
                                         JJ.]        .
                          ,. i'   '
                 Penal Code, -1860: s.302 - Murder - Conviction by trial
            court ..,.. Based on medical evidence and evidence of wife and      c
          · son_ -~f the deceased - _High Court reversed the order of
            conviction holding that the son of the deceased was rfot eye~
          I
            witness and the delay in filing FIR and sending the special
                           -                                     '        '

            report to the magistrate was fatal to prosecution case - Appeal
            by State against.. the order of.acquittal-' Held: The eye-witness   D
            account was fully corroborated by the medical. evidence -
            Post mortem report stated several cut injuries on the face and
(
-'          neck of the deceased - The violence and intensity of the
            attack depicted that it must have taken plaC(J over some time
            and it would not only have enabled the son of the deceased          E
            to reach the place of incident but also his wife to have properly
          ' identified the accused as he was also a resident of the same
            village - Incident took place at midnight - The. wife of the
            deceased aged 75 years gave the statement' to the Village
            Administrative Officer in the morning and the information was       F
            forwarded to the police station - Delay thereafter was beyond
            her control - Thus, there was no delay in the recording of the
                                                        .
            FIR- In the face of unimpeachable evidence, the late delivery.
            of the special report by itself would not be fatal to prosecution
            case - Accused convicted u/s 302.
                                                                                G
                  Appeal against acquittal - Acquittal by High Court -
              Scope of interference by Supreme Court - Discussed.
                  ..
                    The prosecution case was that two months prior. to
                   . '
                     f
                                         533                                    H
    534      SUPREME COURT REPORTS          (2010] 10 S.C.R.


A the incident, a quarrel took place between the
  respondent-accused and PW-1. PW-3, the brother of PW-
  1 went to the house of the accused and gave a sound
  thrashing to him. On the day of incident, PW-3 planned
  to go on a pilgrimage with his family. He requested his
B mother (PW-2) and his father, the deceased to sleep in his
  house. Accordingly, the deceased and PW-2 went to the
  house of PW-3 to sleep there. At about mid-night, the
  accused went to the house of PW-3, armed with a knife
  and on seeing a person sleeping on a cot and believing
c him to be PW-3 attacked him with the knife. On hearing
  the commotion, PW-2 sleeping on a mat nearby,
  screamed and tried to save her husband. The accused
  pushed her down. In the meantime, PW-1, whose house
  was nearby, rushed to the spot and witnessed the
D incident and tried to catch the accused but' the accused
  managed to escape. In the morning at 8 A.M., PW-1 went
  to the Village Administrative Officer (PW-8) and narrated
  the incident to him. PW-8 sent the information to the
  police station and FIR was then recorded.

E      The trial court relied upon the evidence of PW-1 and
  PW-2 as corroborated by the statement of PW-3 with
  regard to the motive and convicted the accused under
  Section 302 IPC. The High Court reversed the findings of
  the trial court and acquitted the accused. While recording
F the order of acquittal, the High Court held that the
  evidence of PW-1 was not reliable as he was not present
  at the time of incident and the delay in lodging FIR and
  sending the special report to the magistrate was fatal to
  the prosecution case. The instant appeal was filed by the
G State challenging the order of acquittal.

          Allowing the appeal, the Court

     HELD: 1. Ordinarily, interference by the Supreme
  Court on a re-appraisal of the evidence should not be
H made particularly in a case of an appeal against acquittal,
 STATE OF ANDHRA PRADESH v. M.NARASIMHA                535
                  RAO
but if it is found that the judgment of acquittal recorded    A
by the High Court was not justified on the evidence,· it
would be a travesty of justice for the Supreme Court to
ignore this aspect and the circumstances may, thus,
warrant interference. The instant case hinges .on the
testimony of PW1 and PW2. The eye-witness account             s
was fully corroborated by the medical evidence. The
doctor, PW-11 who conducted the post mortem had
found several cut injuries on the face and neck of the
deceased. The violence and intensity of the attack
showed that it must have taken place over a couple of         c
minutes and it would not only have enabled PW1 to reach
the place of incident but also PW2 to have .Properly
identified the accused as he was also a resident of the
same village. The eye witnesses fully supported the
prosecution story. [Paras 5, 6, 7) [539-E-G; 540-E; 541-8-
                                                              0
D-E]

     2. PW-2 was a lady of 75 years of age but she had
nevertheless given the statement to the Village
Administrative Officer at about 8 a;m. and the information
was forwarded to the police station. If any delay occurred    E
after 8 a.m. it was a matter which was beyond the control
of PW2. In any case, in the light of the fact that
information was conveyed to the police station at 1'0 a.m.
of what had happened at 1 or 2 a.m. in a remote village 7
km. away from the police station, there was no delay i.I"!    F
the lodging of the FIR and if there was some delay, it
stood explained. In the face of unimpeachable evidence,
the late delive,.Y of the special report by itself would do
no great damage to the prosecution story. Accordingly,
the judgment of the High Court is set aside and the           G
accused respondent is convicted under Section 302, IPC
and is sentenced to undergo RI for life. [Para 8) [541-F-
H; 542-A-B]

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1361 of2003.                                              H
    536      SUPREME COURT REPORTS                 [2010] 10 S.C.R.


A        From the Judgment & Order dated 18.04.2002 of the High
    Court of Andhra Pradesh at Hyderabad in Crl. Appeal No. 1390
    of 2000.

        I. Venkata Narayana, Anuradha Rustogi, D. Bharathi
    Reddy for the Appellant.
8
          Ms. M. Qamaruddin, M. Qamaruddin, Ambar Qamaruddin
    for the Appellant.

          The Judgment of the Court was delivered by
c        HARJIT SINGH BEDI, J. 1. This appeal against acquittal
    at the instance of the State of Andhra Pradesh arises out of
    the following facts.

          2. l\i1.Narasimh~ Rao, the respondent herein, and the
D   deceased T. Subbaiah were residents of village Veknuru. The
    deceased was married with PW2 and they had two sons PWs.1
    and 3. Some two months prior to the present incident, a quarrel
    had taken place betweeri the respondent and PW1 in which
    PW1 had suffered ~ beating. In order to avenge this insult, PIJl!3
E   went to the house of the respondent and gave him a sound
    thrashing. On 13th September 1995, PW3 planned to go on a
    religious journey to Pedakakani and while doing so, he
    requested his mother PW2 and his father to sleep in his house
    while he was away. Accordingly, the deceased and PW2 went
F   to the house of PW3 to sleep there that night. At about mid night
    on the night intervening between 1~th and 14th September
    1995, the accused respondent reached the house of PW3
    armed with a knife and on seeing a person sleeping on the cot
    i.n the. verandah, and believing him to be PW3, attacked him
G   (ldministering several knife plows. On hearing the commotion,
    PW2 who was sleeping on a mat besides her husband's cot,
    cried out in alarm and also attempted to intervene to save her
    husband, but the accused pushed her down. In the meanwhile,
    PW1 whose house was close by also rushed to spot and he
H   also witnessed the incident and attempted to catch the accused
  STATE:   OF ~NbHRA PRADESH v. M.NARASIMHA                     537
              RAO [HARJIT SINGH BEDI, J.]
who, however, managed to run away. The accused thereafter               A
went to the house of his maternal uncle PW6 who told him to
get out of the house. At 8 a.m. on 14th September 1995 PW1
went to the Village Administrative Officer PW8 and narrated the
incident to him. PW8 recorded the circumstances in writing and
sent the information to Police Station Avanigadda and a formal          B
FIR was registered in the Police Station. The accused was
thereafter arrested and on the completion of the investigation,
a. charge sheet was filed under Sections 449 and 302 of the
IPC. He pleaded false implication and claimed trial. In support
of its case, prosecution examined 13 witnesses in all, the              c
primary witnesses, being one PW1, the elder son of the
deceased, who had come to the place of incident during the
occurrence after hearing cries of his mother and had also
attempted to apprehend him, PW2, the wife of the deceased
and mother of PW1 and PW3, the younger brother of PW1, who              D
had gone on a pilgrimage and was in fact the cause of the
attack and PW8 the Village Administrative Officer, who had
recorded the first information report. Certain other witnesses,
who are not eye witnesses, were, however, declared hostile.
The prosecution also relied upon various documents such as
the post-mortem report and circumstantial evidence such as the          E
recovery of the murder weapon at the instance of the accused
etc. The trial court relying on the evidence of PW1 and PW2,
both eye witnesses, and the closest relatives of the deceased,
as corroborated by the statement of PW3 with regard to the
motive convicted the accused. It held that though some of the           F
witness had not supported the prosecution story, it was of no
consequence as they had no role to play in determining the
truthfulness of the eye witness account of PW1 and PW2. The
court accordingly held that though PWs 6 and 9 with respect
to the extra judicial confession and the recovery of weapon of          G
murder had not supported the prosecution, this factor would
have no effect on the prosecution story. The court also observed
that in the light of the fact that the incident had happened at night
and PW2 was an old woman 75 years of age and must have
been completely traumatized by the events, the mere fact that           H
    538     SUPREME COURT REPORTS                [2010] 10 S.C.R.


A the FIR had been lodged at about 10 a.m. or the special report
  had been delivered four hours later, could not detract from the
  prosecution story. The trial court, accordingly, convicted and
  sentenced the accused to undergo imprisonment for life under
  Section 302 of the IPC but did not record any conviction under
B Section 449 of the IPC. An appeal was thereafter taken to the
  High Court of the State of Andhra Pradesh. The Division Bench
  by its judgment dated 18th April 2002 reversed the findings of
  the trial court and acquitted the accused. In doing so, the High
  Court observed that as some oft: .e witnesses, PWs.4, 5, and
c 6, who had reached the place of incident soon after the incident,
  had turned hostile and PW9, the witness of the extra judicial
  confession had also not supported the prosecution, the reliance
  on the statements of PWs.1 and 2 alone was a matter which
  needed examination with care. It observed that PW2 was the
  wife of the deceased and was an eye witness but as PW1 had
0
  come to the spot after the occurrence and had not been
  present at the time of the incident, it appeared that he was an
  not eye-witness, and the court had to be extremely careful
  before recording a verdict of guilt on the basis of the statement
  of a solitary witness·. The court then held that the incident had
E been happened at about mid night of the 13th and 14th
  September and the FIR had been lodged after 8 hours though
  the Police Station was 7 km. away from the place of incident
  and in the fact that the special report had been delivered 4 hours
  later to the Magistrate's Court, which was in the same
F compound as the Police Station was also belated exercise.
  The present appeal has been filed by the State of Andhra
  Pradesh challenging the order of the High Court and. after the
  grant of leave, the matter is before us.

G      3. The learned counsel for the appellant has, first and
  foremost, pointed out that there was no reason whatsoever to
  disbelieve PW1 and PW2 as they were eye witnesses to the
  incident and also the closest relatives of the deceased. It has
  been further pointed out that only witnesses, who could be
H expected at the night in a residential house, would be the
 STATE OF ANDHRA PRADESH v. M.NARASIMHA                        539
         RAO [HARJIT SINGH BEDI, J.]
immediate members of the family and to look for evidence              A
beyond these witnesses was difficult to accept. It has also been
pleaded that there was no delay in the lodging the FIR as the
statement had been made by PW2 to the Village Administrative
Officer at about 8 a.m. and it was his duty to forward the
information to the Police Station and if in doing so, some time       B
had been taken as the Police Station was 7 km. away from the
village, there was absolutely no delay in registration of the FIR.
It has been further submitted that the delay in the delivery of the
special report would become insignificant in the light of the
categoric eye witness evidence.                                       c
      4. The learned counsel for the accused respondent has,
however, pointed out that the High Court having recorded an
acquittal, the reappraisal of the evidence by this Court, was not
justified. On merits, it has been pleaded that PW1 was not an
eye witness and there was absolutely no justification for the trial   D
court to have held otherwise . .It has further been pleaded that
the evidence of PW2 was at variance with the medical evidence
and the fact that she had not seen the incident was borne by
the fact that the FIR had been belatedly recorded and the
special report delivered belatedly as well.                           E

      5. We have heard the learned counsel for the parties and
gone through the record. It is true that interference by this Court
on a reappraisal of the evidence should not ordinarily be made
particularly in the case of an acquittal appeal but if it is found    F
that the judgment of acquittal recorded by the High Court was
not justified on the evidence, it would be a travesty of justice
for this Court to ignore this aspect and the circumstances may,
thus, warrant that the exercise be performed. We see that the
case hinges on the testimony of PW1 and PW2. PW2 was the              G
wife of the deceased and the mother of PW1. The prosecution
story is that PW3 had gone to a pilgrimage with his family and
requested his parents to sleep in his house at night so as to
guard the house and the accused thinking that the person
sleeping in the verandah outside the house was PW3 attacked
                                                                      H
    540       SUPREME COURT REPORTS                [2010] 10 S.C.R.


A the deceased with a knife and killed him instantaneously. The
  fact that there had been ill will between the families of the
  deceased, particularly PW1 and PW3 on the one side, and the
  accused on the other is clear from the evidence of PWs1, 2
  and 3. It is also significant that the accused while running away
B had called out that he had killed PW3 and would now kill PW1.
  It is obvious that the intended victim of the attack was PW3 and
  he managed to escape as he was not at home and his aged
  father paid the penalty on the mistaken impression of the
  accused. In this background, the evidence of PW1 and PW3,
c is completely trustworthy. PW2 stated that she had been
  sleeping beside her husband's cot in the verandah when she
  had heard a noise and had looked up and seen the accused
  attacking her husband and while she was looking on he had
  caused some additional injuries as well. It is also her case that
  her cries had attracted PW1 , whose house was at a distance
0
  of 25 to 30 yards from the house of deceased and who had
  reached the place during the attack and had also attempted to
  catch hold the accused but he had pushed him aside and then
  run away. For the High Court therefore to hold PW1 was not
  an eye witness is erroneous. We also see that eye witness
E account is fully corroborated by the medical evidence. The
  Doctor, PW11 who conducted the post-mortem had found
  several cut injuries on the face and neck of the deceased. They
  are reproduced hereinbelow:                       ·

F         "A cut injury of 0.5 ems below the nose extending botn
          sides 1 ems below the lobule of both ears size 30 ems x
          5 ems, bone deep, severing muscles, vessels, nerves and
          fracturing maxilla and mandible and roots of teeth. 2. A cut
          injury of 1 ems below upper lip extending upto angle of
G         mandible on left side and upto the angle of mouth on right
          side, size 15 ems x 5 ems x bone deep severing muscles,
          vessels, nerves and fracturing mandible and roots of teeth.
          3. A cut injury of over chin extending both sides, left side
          upto sterna mastoid muscle, right side upto the angle of
          mandible, size 25 ems x 5 ems x bone deep severing
H
 STATE OF ANDHRA PRADESH v. M.NARASIMHA                       541
         RAO [HARJIT SINGH BEDI, J.]
    muscles, vessels, nerves, fracturing mandible on right side.      A
    Brain and meninges; left caroled vessels are cut severed
    stomach contains-partially digested rice."

      6. The violence and intensity of the attack shows that it
must have taken place over a couple of minutes and it would           8
not only have enabled PW1 to reach the place of incident but
also PW2 to have properly identified the accused as he was
also a resident of the same village. It is in the statement of PW1
that his house was adjoining the house of PW3 and it was,
accordingly, possible for him to rush to the scene so as to give      C
him the status of an eye witness. As a matter of fact, in the cross
examination, there is no serious suggestion that he had reached
the place after the incident and after the accused had run away
and the broad suggestion is that the deceased had been killed
by some unknown person as he had many enemies in the
village and the surrounding area.                                     D

     7. To our mind, therefore, as the eye witnesses have fully
supported the prosecution story, and the fact that the witness
of the extra judicial confession PW9 or the recovery of the
weapon etc. did not support the prosecution, would not detract        E
from their evidence.

      8. We are also of the opinion that there 1s no delay in the
recording of the FIR. It cannot be ignored that PW2 had
witnessed the murder of her husband and that too in a most
                                                                      F
brutal and bloodcurdling manner as the evidence is that the
injuries had led to a huge amount of bleeding. PW-2 was a lady
of 75 years of age but she had nevertheless given the statement
to the Village Administrative Officer at about 8 a.m. and the
information had been forwarded to the police station. If any
delay occurred after 8 a.m. it was a matter which was beyond          G
the control of PW2. In any case, in the light of the fact that
information had been conveyed to the police station at 10 a.m.
of what had happened at 1 or 2 a.m. in a remote village 7 km.
away from the police station, we are of the opinion that there
was no delay in the lodging of the FIR and if there was some          H
    542     SUPREME COURT REPORTS                [2010] 10 S.C.R.


A delay, it stood explained. In the face of unimpeachable evidence
  the late delivery of the special report by itself would do no great
  damage to the prosecution story. We, accordingly, allow this
  appeal, set aside the judgment of the High Court and convict
  the accused respondent under Section 302 of the IPC and
B sentence him to undergo RI for life and a fine of Rs.100/- and
  in default of fine, to undergo SI for 15 days. The accused
  respondent be taken into custody forthwith to serve out his
  sentence.

C D.G.                                             Appeal allowed.