T.Vijay A1, Medak Dt 5 Otrs., vs State Of Ap., Rep. Pp. Hyd.,
2022 Latest Caselaw 5463 Tel

   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.

AVR,J & GAC,J Crl.A_526_2014

(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

2005 (2) ALD (Crl.) 564 (A.P.)

2018 (2) ALD (Crl.) 135

1988 Supreme Court Cases (Crl.) 1350 AVR,J & GAC,J Crl.A_526_2014

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

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

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

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

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.

AVR,J & GAC,J Crl.A_526_2014

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

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

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

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

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.

AVR,J & GAC,J Crl.A_526_2014

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

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

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

2004 (2) ALT )Crl) (AP) 571 AVR,J & GAC,J Crl.A_526_2014

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

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

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

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

AIR 2008 SC175

AIR 2001 SC 3173

AIR 1972 SC 677 AVR,J & GAC,J Crl.A_526_2014

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

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

2003 Crl.L.J.844 AVR,J & GAC,J Crl.A_526_2014

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.