THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY
AND
THE HONOURABLE SMT JUSTICE G.ANUPAMA CHAKRAVARTHY
CRIMINAL APPEAL No.526 OF 2014
JUDGMENT: (Per Hon'ble Sri Justice A.Venkateshwara Reddy)
This Criminal Appeal is preferred by the appellants /
accused Nos.1, 2, 4 to 6 and 13 assailing the judgment dated
25.04.2014 in Sessions Case No.446 of 2012 on the file of the
VIII Additional District and Sessions Judge, Medak, wherein
they were found guilty for the offences punishable under
Sections 148, 302 and 307 of Indian Penal Code (for short
'IPC') and sentenced to suffer imprisonment for a period of
three years for the offence under Section 148 of IPC and to
suffer life imprisonment and to pay a fine of Rs.10,000/- each
for the offence punishable under Section 302 of IPC for
causing death of Issac and Sudhakar deceased Nos.1 and 2
respectively and also sentenced to suffer simple imprisonment
for a period of ten years and to pay a fine of Rs.10,000/- each
for the offence under Section 307 of IPC.
2. Briefly stated the prosecution case, as unfolded during
the trial, is as follows :
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All the accused and the deceased belonged to Minpur
Village, Pulkal Mandal, Medak District. There was rivalry
between them. Daughter of deceased No.1 Issac was married
to accused No.1 two months prior to the incident and
thereafter accused No.3 has performed "Srimantham"
function of his wife Swapna and in that connection a dinner
was arranged wherein the deceased No.3 Raju went in
drunken condition and tried to sit among the ladies then the
accused No.1 asked him to sit away, the deceased Raju
abused accused No.1. In that context, there was a dispute
between the family members of the deceased and the accused
and that the deceased Raju stabbed Papaiah, father of
accused No.1 and a case in Crime No.53 of 2010 was
registered for the offence under Section 307 of IPC and that
the deceased Raju was sent to judicial remand. The
deceased No.2 Sudhakar real brother of Raju arranged for his
bail and he was released on bail. While so, on 24.08.2010 the
accused No.7 informed accused No.1 that the deceased No.3
Raju was at the toddy shop and trying to create a quarrel.
Then accused No.1 along with accused Nos.2 to 5, 7, 9, 10,
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14 and 15 hatched a plan, formed into unlawful assembly,
attacked Begari Raju, killed him at toddy shop. On the way
to toddy shop, accused Nos.9 and 11 to 13 also joined them.
After killing deceased No.3 Raju all the accused also noticed
the deceased No.2 Sudhakar at the house of Vittal Reddy and
decided to kill him and attacked him. On coming to know
about the incident PW5, mother of the deceased Nos.2 and 3
Sudhakar and Raju and wife of Issac the deceased No.1, who
is father of deceased Nos.2 and 3 rushed to the spot and
when deceased No.1 tried to rescue Sudhakar the accused
also beat him and as a result, he died at the spot. PW5 went
to the rescue of the deceased Sudhakar, while she was taking
cell phone from him, she was assaulted by A6 and others.
PW5 also received injuries on her legs, backside and head.
On the report lodged by PW1, a case in crime No.59 of 2010
was registered by the police of Pulkal.
3. In the course of investigation, witnesses were examined,
panchanama was conducted and inquest was held over the
dead bodies of deceased Issac, Sudhakar and Raju
(hereinafter referred to as deceased Nos.1 to 3 respectively).
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The Investigating Officer also prepared scene of offence
panchanama and rough sketch, seized blood stain and
control earth, chappal, sticks and clothes of Sudhakar under
the cover of panchanama and effected arrest of the accused,
who voluntarily confessed commission of crime, seized seven
sticks used for commissions of offence and upon receipt of
Forensic Science Laboratory (for short 'FSL') report, filed the
charge-sheet.
4. From the material available on record it appears that
after furnishing necessary copies, as required under Section
207 of Criminal Procedure Code (for short 'Cr.P.C.'), the case
was committed by the learned Magistrate to the Court of
Sessions. The learned Sessions Judge Medak at Sangareddy
registered this case vide S.C.No.446 of 2012 and made over it
to the learned VIII Additional District and Sessions Judge,
Medak, who upon hearing the parties, framed charges for the
offences punishable under Sections 148, 302 and 307 of IPC
to which all the accused including the appellants pleaded not
guilty and claimed to be tried.
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5. During trial on behalf of prosecution in all examined
PWs.1 to 16 and got marked Exs.P1 to P23 and MOs.1 to 13.
After closure of prosecution evidence the accused were
examined under Section 313 Cr.P.C. with reference to
incriminating oral and documentary evidence they denied the
said evidence and reported no defence evidence. The trial
Court, after hearing both the parties, found the accused
Nos.3, 7 to 12, 14 and 15 not guilty for the offences
punishable under Sections 148, 302 and 307 of IPC and they
were acquitted for the same under Section 235(1) of Cr.P.C.,
whereas appellants accused Nos.1, 2, 4 to 6 and 13 were
found guilty for the offences punishable under Section 148,
302 and 307 of IPC and that they were sentenced to undergo
imprisonment for life and to pay a fine of Rs.10,000/- each
for the offence of murder of deceased Nos.1 and 2 under
Section 302 of IPC and further sentenced to undergo simple
imprisonment of three years for the offence under Section 148
of IPC. They were also sentenced to undergo simple
imprisonment for a period of ten years and to pay a fine of
Rs.10,000/- each for the offence under Section 307 of IPC.
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6. Feeling aggrieved by the said judgment dated
25.04.2014
this criminal appeal is preferred by the appellants / accused Nos.1, 2, 4 to 6 and 13.
7. Heard learned counsel for the appellants / accused Nos.1, 2, 4 to 6 and 13 and learned Public Prosecutor for the State and perused the material available on record. Detailed submissions made on either side have received due consideration of this Court.
8. Learned counsel for the appellants also submitted a brief note with synopsis and argued that the prosecution has failed to furnish the copy of dying declaration of PW5 causing prejudice to the accused and adverse inference under Section 114 (g) of Evidence Act has to be drawn against the prosecution for withholding the said evidence. He would further submit that the individual overt acts of the appellants are not explained by the eye witnesses PWs.1, 2, 5 and 7 and in such circumstances, the conviction recorded by the trial Court against the appellants is not sustainable and relied on the principles laid in the following decisions.
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(i) Sivakoti Daveedu and another Vs. State of Andhra Pradesh1.
(ii) Gogula Ramanaiah Vs. State of Andhra Pradesh2
(iii) Rewa Ram Vs. Teja and others3
9. Be it stated that the prosecution in all has examined 16 witnesses to unfold their case against the appellants / accused. Among them PW1 is the de-facto complainant, eye witness to the occurrence of the incident. She is the sister of deceased Nos.2 and 3 and daughter of deceased No.1 and PW5. PW2 is daughter-in-law of deceased No.1 and PW5. She is sister-in-law of PW1 and deceased Nos.2 and 3. She is also an eye witness to the occurrence of incident. PW3 Smt.P.Shakunthala is the wife of Vittal Reddy, though she is cited as an eye witness, turned hostile and did not support the prosecution case. PW4 is the photographer. PW5 is the injured eye witness to the incident. She is mother of deceased Nos.2 and 3 and wife of deceased No.1. She is mother of PW1 and mother-in-law of PW3. PW6 E.Ganesh, though cited as eye witness to the incident, turned hostile and did not support the prosecution case. PW7 is an eye 1 2005 (2) ALD (Crl.) 564 (A.P.) 2 2018 (2) ALD (Crl.) 135 3 1988 Supreme Court Cases (Crl.) 1350 AVR,J & GAC,J Crl.A_526_2014 Page 8 of 27 witness to the incident and supported the evidence of PWs.1, 2 and 5. Whereas PWs.8, 9 and 10 are the panch-witnesses for inquest conducted over the dead bodies of deceased Nos.3, 2 and 1 under Exs.P5, P6 and P7 respectively. PW11 is the doctor, held post-mortem examination over the dead bodies of deceased Nos.1 to 3 and Exs.P8, P9 and P10 are the post- mortem examination reports respectively. PW12 is a panch- witness for scene of offence panchanama as in Ex.P12, rough sketch of scene of offence as in Ex.P13 and inquest conducted over the dead body of deceased No.2 Sudhakar along with PW9 under Ex.P6. PW13 is panch-witness for confession of the accused. Exs.P15 to P21 are the relevant portions of statements of the confession of the accused leading to seizure. Pursuant to the confession under Ex.P14, incriminating material was seized. PWs.14 to 16 are the Investigating Officers. PW14 issued FIR under Ex.P22, assisted PW15 in conducting scene of offence panchanama and inquest over the dead bodies of the deceased. He also gave requisition to the Magistrate for recording the dying declaration of PW5. Whereas PW15 is the second Investigating Officer, he examined the witnesses, recorded the AVR,J & GAC,J Crl.A_526_2014 Page 9 of 27 statements, prepared scene of offence panchanama, rough sketch under Exs.P12 and P13 in the presence of witnesses and seized blood stained clothes, control earth, chappals and sticks. PW16 is the third Investigating Officer, received investigation from PW15, effected the arrest of accused, secured presence of PW13 and LW24, recorded the confession statements of accused as in Exs.P15 to 21, seized seven sticks and that on receipt of FSL Report, filed charge-sheet.
10. PW1 is the de-facto complainant and eye witness to the incident. This witness testified that since the accused belong to her place, she can identify all the accused and that on the date of incident, deceased No.2 told her that he was going to the house of Vittal Reddy and after some time somebody informed that the deceased No.2 was being assaulted at the house of Vittal Reddy, then she along with PWs.2, 5 and deceased No.1 rushed towards the house of Vittal Reddy. She saw the accused assaulting deceased No.2 Sudhakar and that A1, A2, A4, A5, A6 and A13 beat him with cart pegs and when deceased No.1 interfered to rescue deceased No.2, the Accused Nos.1 to 6 and 12 also beat him with sticks resulting AVR,J & GAC,J Crl.A_526_2014 Page 10 of 27 into his death. She further stated that then PW5 went to the rescue of deceased No.2 Sudhakar, bit she was also beaten. This witness stated that she was informed that deceased No.3 Raju was also killed near toddy shop. In cross-examination PW1 has stated that she was in the house of deceased No.2 Sudhakar when informed about the incident. She saw the accused beating Sudhakar. Though she was cross-examined at length, nothing is elicited either to disbelieve her presence or her version with reference to individual overt acts of the accused.
11. PW2 is the daughter-in-law of deceased No.1 and PW5 and sister-in-law of deceased Nos.2 and 3 and PW1. She has supported the evidence of PW1 on all material aspects. This witness further stated that she questioned the accused why they were beating deceased Nos.1 and 2 then accused No.2 told that due to previous grudges they beat deceased Nos.1 and 2 and that they came to know that the accused also killed deceased No.3 Raju. In the cross-examination this witness stated that after the accused left that place, they AVR,J & GAC,J Crl.A_526_2014 Page 11 of 27 reached the dead bodies of the deceased Nos.1 and 2 and that PW5 received injuries and became unconscious.
12. PW3 Smt.P.Shakunthala and PW6 E.Ganesh are cited as eye witnesses but they did not support the prosecution case. However, PW3 has stated that at the request of police she went out of the house and saw the place with pool of blood on the earth. PW4 is the photographer, he obtained Ex.P3 - a bunch of 15 photographs at the instance of the police.
13. PW5 is the injured-eye witness to the occurrence of incident. She is the wife of deceased No.1 Issac and mother of deceased Nos.2 and 3 Sudhakar and Raju and also mother of PW1 and mother-in-law of PW2. She has supported the entire evidence of PWs.1 and 2. This witness further stated that she noticed the deceased Sudhakar with bleeding injuries, who asked her for shifting him to the hospital and when she was taking his cell phone, the accused No.6 snatched away the same and kicked her and beat her with sticks on her left hand and that the accused Nos.1 to 6, 10 and 13 and others also beat her. She stated that A1 kicked AVR,J & GAC,J Crl.A_526_2014 Page 12 of 27 her husband Issac deceased No.1 on testicles and A8 beat him with sticks. In the cross-examination the witness stated that after receiving blow after blow, she lost consciousness. The witness also admitted the previous incident of deceased Raju assaulting father of A1 about two months prior to this incident.
14. PW7 is another eye witness to the incident. This witness supported evidence of PWs.1, 2 and 5 as to the manner of occurrence of the incident and stated that accused Nos.1, 4, 5, 8 and 14 beat the deceased Sudhakar with sticks. At that time accused Nos.6 and 13 were also there and that the accused Nos.2 and 13 asked him to go away and accordingly he left that place.
15. PWs.8 to 10 are the panch-witnesses for the inquest panchanama as in Exs.P5, P6 and P7 conducted over the dead bodies of deceased Nos.3, 2 and 1 respectively. In-fact, there is no dispute about the cause of death of deceased Nos.1 to 3 and the oral evidence of PWs.8 to 10 and contents of Ex.P5 to P7 remained consistent throughout the cross- examination.
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16. Similarly, PW11 is the doctor, who conducted post- mortem examination over the dead bodies of deceased Nos.1 to 3 viz. Issac, Sudhakar and Raju under Ex.Ps.8, 9 and 10. PW11 has categorically stated that the cause of death of the deceased No.1 Issac is head injury due to shock, whereas the cause of death of deceased No.2 Sudhakar is head injury on occipital region and complete fracture and brain tissue damage and similar cause is mentioned for the death of deceased No.3 Raju under Ex.P10. Ex.P11 is Wound Certificate of PW5 issued by Dr.P.Suman.
17. It is stated by PW11 that Dr.P.Suman resigned from service and he can identify the signatures of Dr.P.Suman and accordingly testified that PW5 has received fracture of left femur lower 1/3rd, fracture of 6th rib on left side and fracture of both bones lower 1/3rd right of fore-arm and that all the injuries are grievous in nature. Be it stated that PW11 was not even cross-examined with reference to Exs.P8 to P10 as to the death and cause of death of deceased Nos.1 to 3. He was only cross-examined about the nature of treatment given to PW5, when she was admitted as inpatient and stated that as AVR,J & GAC,J Crl.A_526_2014 Page 14 of 27 per the records she was conscious at the time of admission, curiously the witness was not cross-examined about the nature of injuries received by PW5. Thus, the entire oral evidence of PW11 and the contents of Exs.P8 to P11 almost remained unchallenged.
18. PW12 is a panch-witness for scene of offence and inquest conducted over the dead body of deceased No.2 Sudhakar. PW13 is the panch-witness for confession of accused relevant portion under Exs.P15 to P21 leading to recovery of seven sticks as in MO13.
19. PW14 is the first Investigating Officer, on receipt of Ex.P1 from PW1, issued FIR as in Ex.P22, assisted PW15 in conducting inquest over the dead bodies of the deceased and also gave a requisition to the learned Magistrate for recording dying declaration of PW5. In the cross-examination, this witness stated that in the FIR only six names of the culprits are specifically mentioned and that he saw the PW5 in Government Hospital and gave a requisition to the Magistrate for recording her dying declaration. Whereas PW15 is the Investigating Officer, who received investigation from PW14, AVR,J & GAC,J Crl.A_526_2014 Page 15 of 27 proceeded to Minpur Village, examined prosecution witnesses, prepared scene of offence panchanama and rough sketch as in Exs.P12 and P13, seized blood stained and control earth, sticks and chappals as in MO Nos.1 to 12. In the cross-examination this witness stated that the witnesses examined by him have specified the names of culprits as accused Nos.1, 2, 4, 5, 6 and 13 and also stated about the participation of others without giving their names.
20. PW16 is the Investigating Officer, who received investigation from PW15, completed the investigation and filed charge-sheet. This witness stated that on 28.08.2010 accused Nos.1, 2 and 4 to 12 surrendered before him at Pulkar Police Station, he recorded the confession statements of A1, A2 and A4 to A8 relevant portion marked as in Exs.P15 to P21 in the presence of PW13 and another witness, seized MO13 sticks under cover of panchanama Ex.P14 effected the arrest of the accused and sent the case properties to the FSL and Ex.P23 in the FSL Report. In the cross-examination PW16 stated that PW5 stated to him that when she went to the house of Vittal Reddy, she saw the deceased No.2 AVR,J & GAC,J Crl.A_526_2014 Page 16 of 27 Sudhakar with head injuries and that PW5 did not state PWs.1 and 2 and the deceased No.1-Issac accompanying her and she has not stated before him that accused No.1 kicked the deceased No.1 on testicles.
21. Thus on a careful scrutiny of the oral and documentary evidence discussed above, PWs.1, 2, 5 and 7 are the only eye witnesses to the incident, who supported the case of prosecution. Among them PW5 is the injured eye witness and except PW7 all others are the family members of the deceased. Though PWs.3 and 6 are cited as eye witnesses, they did not support the prosecution case. The individual overt acts of the accused assaulting deceased No.1-Issac, deceased No.2-Sudhakar and PW5 as stated by the above eye witnesses are as under :
PW1 stated that
(i) A1, A2, A4 to A6 and A13 beat the deceased Sudhakar with cart pegs (sticks).
(ii) A1 to A6 and A13 beat the deceased No.1 - Issac with sticks.
(iii) The accused person who beat the deceased No.1-Issac also beat PW5.
AVR,J & GAC,J Crl.A_526_2014 Page 17 of 27 PW2 stated that
(i) The accused Nos.1, 2 and 4 to 9 beat deceased Sudhakar with sticks on head and other places.
(ii) Then the deceased No.1-Issac and PW5 went closely abusing the accused, 4 or 5 persons beat the deceased No.1 and PW5, the accused Nos.1, 2, 6 and 13 beat the deceased No.l and she did not observe who actually beat PW5. PW5 stated that
(i) The deceased No.2 Sudhakar was beaten near the house of Vittal Reddy and asked her to shift him in ambulance, while she was taking his phone A6 snatched away the same, A1 kicked her, beat with stick on her left hand, A1 to A6, A10 to A13 beat her with sticks.
(ii) The accused No.1 kicked the deceased No.1-Issac at testicles and A8 beat with sticks and beating of deceased No.1 was completed in five to ten minutes.
Whereas, PW7 stated that accused Nos.1, 4, 5, 8 and 14 beat the deceased No.2-Sudhakar with sticks, accused Nos.6 and 13 were also present and accused Nos.2 and 13 asked him to go away, that accused No.2 questioned the deceased No.2 as to how many persons will be killed by his brother Raju.
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22. Learned counsel for the appellants strenuously contends that all the eye witnesses to the occurrence of incident are highly interested belongs to same family and the individual over acts of the accused are not explained properly. Though PW7 independent eye witness is examined, his evidence only shows that some of the accused beat the deceased Sudhakar, he did not witness any other incident and it is not safe to rely upon such evidence of family members. It is further submitted that PW14 gave requisition to the Magistrate for recording dying declaration of PW5 and such statement was withheld by the prosecution for the reasons best known to them, therefore an adverse inference has to be drawn against the prosecution under Section 114 illustration (g) of Indian Evidence Act and relied upon the following decisions.
23. In the case of Sivakoti Daveedu and another (1st cited supra), a Division Bench of Andhra Pradesh High Court has held that when Section 164 Cr.P.C. Statements of the witnesses recorded by the Magistrate have not been furnished to the accused adverse inference under Section 114 (g) of AVR,J & GAC,J Crl.A_526_2014 Page 19 of 27 Evidence Act can be drawn against the prosecution. In Gogula Ramanaiah (2nd cited supra) also when 164 Cr.P.C. Statements of some of the witnesses were not furnished to the accused, it was held that in case of Investigating Agency and the prosecution withholding such statements, it is to be presumed that the same was being done as it was favourable to the accused and adverse inference under Section 114 (g) of Evidence Act has to be drawn for non-supply of such crucial material to the accused.
24. In the instant case, it is a fact that as per the evidence of PW14, a requisition was given to the Magistrate concerned for recording dying declaration of PW5 and PW5 also stated that her statement was recorded by the Magistrate. Curiously PW5 was not cross-examined with reference to any such dying declaration or the statement given by her to the learned Magistrate. Similarly, PWs.15 and 16 were also not cross- examined with reference to any such dying declaration of PW5 said to have been recorded by the learned Magistrate. Though LW28 Smt.Priya Darshini, learned Judicial First Class Magistrate is shown as witness, who recorded the AVR,J & GAC,J Crl.A_526_2014 Page 20 of 27 statement of PW5, she is not examined by the prosecution, nor such declaration / statement is exhibited on behalf of prosecution. No such suggestion was given to Investigating Officers PWs.15 and 16 that such dying declaration / statement of PW5 was intentionally withheld by the prosecution. It is pertinent to mention that the law is well settled that if the prosecution case is otherwise proved, the accused cannot be acquitted merely on account of illustration
(g) of Section 114 of Evidence Act.
25. In similar circumstances a Division Bench of erstwhile High Court of Andhra Pradesh in Harijana Mulinti Bhushanna Vs. State of Andhra Pradesh4 held that due to non-production of dying declaration of one of the deceased, the entire prosecution case cannot be thrown out. Though under Section 114 (g) of Indian Evidence Act, the Court can draw adverse inference against the party, not producing a vital document that cannot effect the entire prosecution case if there is satisfactory oral evidence. In that particular case the witnesses have consistently deposed before the Court 4 2004 (2) ALT )Crl) (AP) 571 AVR,J & GAC,J Crl.A_526_2014 Page 21 of 27 about the incident in detail and they were found to be truthful witnesses.
26. In the case on hand also PWs.1, 2, 5 and 7 have consistently testified about the manner of occurrence of incident and individual overt acts of the accused. Though they were cross-examined at length, their entire evidence remained consistent and they are found to be truthful witnesses. Accordingly, as the prosecution case is otherwise established with cogent and reliable evidence, the accused are not entitled for the advantage of the illustration (g) of Section 114 of Indian Evidence Act and the principles laid in the decisions relied upon by learned counsel for the appellants are not helpful to the accused in any way.
27. That apart the declarent PW5 whose dying declaration was recorded is survived and such declaration made by her before the Magistrate cannot be considered as her testimony, at the most such statement can be used under Section 157 of Evidence Act for corroborating the testimony of the witness in the Court or for contradicting under Section 155 of Evidence Act. Thus, in the facts and circumstances of the case on AVR,J & GAC,J Crl.A_526_2014 Page 22 of 27 hand, the mere failure of the prosecution in filing the dying declaration statement of PW5 before this Court or furnishing copy of the same to the accused by itself is not sufficient to throw away the entire prosecution case which is otherwise proved and the accused cannot be acquitted on account of illustration (g) of Section 114 of Indian Evidence Act.
28. Learned counsel for the appellants would submit that the individual overt acts of the accused are not properly explained by the witnesses PWs.1, 2, 5 and 7 and that PWs.1, 2 and 5 are interested witnesses being members of the same family and the Evidence of PW7 is only to the effect that he saw the accused beating deceased No.2 and he was asked to leave that place and that accordingly in view of the charges under Section 148 of IPC against all the accused for committing rioting with deadly weapons the conviction may be altered to Section 326 of IPC and relied on the principles laid in the case of Rewa Ram (3rd cited supra), wherein it was held that the offence under Section 302 of IPC was not made out and accordingly, the accused were found guilty for the offence under Section 326 of IPC for committing rioting with AVR,J & GAC,J Crl.A_526_2014 Page 23 of 27 deadly weapons. Be it stated that the facts of the case on hand are distinguishable from the facts in the above decision and there is ample evidence about the individual overt acts of the appellants while causing injuries to deceased Nos.1 and 2 and PW5. Therefore, in our considered opinion the principles laid in the above decision are not applicable to the present case and not helpful to the appellants.
29. The mere relationship of PWs.1, 2 and 5 with the deceased Nos.1 to 3 itself does not make them as interested. In many a cases close relations such as wife, brother, mother, sister or son of the deceased / injured person may happen to be natural and reliable witnesses and if their evidence is otherwise found to be truthful, it cannot be discarded. The mere relationship does not discredit the evidence of eye witness and such evidence can be acted upon if it is found to be reliable after careful scrutiny from the point of view of truthfulness. The close relations of the deceased / injured may naturally rush to the scene of offence on hearing the alarm of the deceased. Credibility and relationship of the witnesses have to be tested with reference to the way they AVR,J & GAC,J Crl.A_526_2014 Page 24 of 27 fared in the cross-examination and the nature of impression created in the mind of the Court. Thus, the relationship itself is not sufficient to discredit and discard the evidence of PWs.1, 2 and 5 unless a motive is attributed to spare the real culprit and to falsely implicate the innocent persons (Bhagga Vs.State of Madhya Pradesh5, Anil Rai Vs. State of Bihar6 and State of U.P. Vs. Samman Dass7).
30. PWs.1, 2 and 5 are the eye witnesses and injured eye witness respectively. In this ghastly crime they lost three of their family members i.e. the deceased No.1 is the husband of PW5, father and father-in-law of PWs.1 and 2 respectively and the deceased No.2-Sudhakar is the son of PW5 and brother and brother-in-law of PWs.1 and 2 respectively. Though there is no evidence of the accused causing death of deceased No.3 Raju, he is one of the sons of PW5 and brother and brother- in-law of PWs.1 and 2 respectively. Except minor variations and discrepancies as to some of the individual overt acts the evidence of PWs.1, 2 and 5 is clinching and clear in establishing the individual overt acts and participation of the 5 AIR 2008 SC175 6 AIR 2001 SC 3173 7 AIR 1972 SC 677 AVR,J & GAC,J Crl.A_526_2014 Page 25 of 27 appellants / accused in causing death of deceased Nos.1 and 2 and grievous injuries to PW5. Be it stated that in such a ghastly crime, when all the appellants armed with cart pegs (sticks), attacked and killed the deceased Nos.1 and 2 and caused grievous injuries to PW5, the eye witness being the wife, mother, sister, sister-in-law, daughter and daughter-in- law were in panic and shock, still they gave the individual overt acts as stated above. As such in the given facts and circumstances of the case, the evidence of PWs.1, 2 and 5 cannot be discarded only on the ground that either they are closely related family members of the deceased or that there are minor discrepancies here and there which are not touching the root of the matter. Therefore, in such circumstances, being rustic village women, having lost three of their family members in a ghastly crime they cannot be expected to give picture perfect details as to the individual overt acts of each of the appellants. On an overall consideration of their evidence, we hold that it is wholly reliable and the mere fact that they are relatives of the deceased or there are minor discrepancies here and there not touching the root of the matter itself is not sufficient to AVR,J & GAC,J Crl.A_526_2014 Page 26 of 27 discard their evidence and accused cannot be acquitted only on the ground of not furnishing the copy of dying declaration of PW5 or faulty investigation if any (State of U.P. Vs.Jagdeep and others8).
31. Therefore, viewed from any angle, we do not find any merit in the appeal. The learned Judge of the Sessions Court in its well considered judgment found all these contentions raised by the appellants / accused as untenable and rejected the same. We do not find any reason to interfere with the findings and conviction recorded by the trial Court against the appellants / accused Nos.1, 2, 4 to 6 and 13 for the offences punishable under Sections 148, 302 and 307 of.
32. Finally the learned counsel for the appellants requested to modify the findings recorded by the trial Court that the appellants / accused are not entitled for commutation of imprisonment either under Cr.P.C. or under Jail Manual and that they shall serve life imprisonment till the end of their lives. We are convinced with the request of the learned counsel since it is not a rarest of the rare case, though it is a 8 2003 Crl.L.J.844 AVR,J & GAC,J Crl.A_526_2014 Page 27 of 27 ghastly crime involving the murder of three persons from a family. Accordingly to meet the ends of justice, the request of the appellants is considered holding that the appellants / accused Nos.1, 2, 4 to 6 and 13 are entitled for the benefit of set off and commutation of imprisonment as per the provisions of Cr.P.C. and Jail Manual while serving the sentence of life imprisonment.
33. In the result, the criminal appeal is dismissed confirming the findings and conviction recorded by the trial Court against the appellants / accused Nos.1, 2, 4 to 6 and 13 for the offences punishable under Sections 148, 302 and 307 of IPC holding that they are entitled for the benefit of set off and commutation of imprisonment, if any, as per the provisions of Cr.P.C. and Jail Manual while serving the sentence of life imprisonment.
The MO Nos.1 to 13 shall be destroyed as ordered by the trial Court.
__________________________________ A. VENKATESHWARA REDDY _________________________________ G.ANUPAMA CHAKRAVARTHY, J Date :29.10.2022 Abb.