Supreme Court of India
BATHULA NAGAMALLESWARA RAO & ORS.versusSTATE REP. BY PUBLIC PROSECUTOR
- Citation
- 2008 INSC 512
- Decided
- 22 April 2008
- Disposal
- Dismissed
- Bench
- P P NAOLEKAR
Holding
The Supreme Court upheld the convictions of A‑1, A‑2, A‑10, A‑11 and A‑12, finding the FIR delay explained and the eye‑witness testimony reliable, and dismissed the appeal.
Summary
The case involved the murder of two villagers in Uddandarayunipalem, for which twelve accused were charged under various IPC provisions. The trial court convicted all except A-3 (who died) and the High Court upheld convictions of A-1, A-2, A-10, A-11 and A-12 while acquitting A-4 to A-9 on the ground of insufficient evidence of their participation. The appellants challenged the convictions on three grounds: a 16‑hour delay in forwarding the FIR to the magistrate, the alleged unreliability of eye‑witnesses PW‑1 and PW‑3 who were interested parties, and the application of the maxim "falsus in uno falsus in omnibus". The Supreme Court examined the delay, held it explained by police deployment and not fatal to the case, and reiterated that a delay must be satisfactorily explained but does not per se vitiate the FIR. It also affirmed that the credibility of interested witnesses can be relied upon if their testimony is consistent, corroborated and free of infirmities, and that the residue of reliable evidence can sustain a conviction even if part of the testimony is deficient. Consequently, the Court upheld the High Court’s findings and dismissed the appeal.
Issues considered
- Whether a 16‑hour delay in sending the FIR to the magistrate vitiates the prosecution case.
- Whether the testimony of interested eye‑witnesses PW‑1 and PW‑3 can be trusted despite alleged bias.
- Whether the maxim "falsus in uno falsus in omnibus" applies to discredit all evidence when a part is found false.
- Whether the benefit of doubt can be granted when part of the evidence against certain accused is deficient.
- Whether the convictions of A‑1, A‑2, A‑10, A‑11 and A‑12 can be sustained on the basis of the remaining reliable evidence.
Legislation cited
- Code of Criminal Procedure, 1973s. 157, s. 159
- Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 427, s. 429, s. 449
Subjects
FIR delayinterested witnessbenefit of doubtevidence appraisalunlawful assemblyIPC 302IPC 149maxim falsus in uno falsus in omnibuscriminal procedureconviction upheld
Judgment
[2008] 6 S.C.R. 829
"' )'
BATHULA NAGAMALLESWARA RAO & ORS. A
v.
STATE REP. BY PUBLIC PROSECUTOR
(Criminal Appeal No. 1097 of 2006)
APRIL 22, 2008
, -..; B
[P.P. NAOLEKAR & LOKESHWAR SINGH PANTA, JJ.]
Penal Code, 1860: s. 302 r. w. s. 149 ands. 429- Conviction
under, based on evidence of eye witnesses - High Court
disbelieved testimony of PW-3 in regard to presence of A-4 to c
A-9 at scene of occurrence and their participation in
commission of crime and granted benefit of doubt- Conviction
of appellants (A-1, A-2, A-10 to A-12), however upheld relying
upon same set of evidence of PW-3 - Challenged on the
ground that PW-3 was interested witness and thus framed
D
appellants in false case - Held: Presence of PW-3 on scene
J;
of occurrence fully established by evidence of PW-1 and PW-
2 and his name also mentioned as eye witness in FIR which
was lodged by PW 1 immediately after incident of murder -
Falsity of particular material witness or material particular would
not ruin it from the beginning to the end - Maxim "falsus in E
uno falsus in omnibus" has no application in India and the
witnesses cannot be branded as liars - High Court found
portion of evidence of PW-3 deficient in regard to involvement
of A-4 to A-9 and granted them benefit of doubt -Although
some portion of the evidence was found to be deficient, residue F
-1. was sufficient to prove guilt of appellants - High Court rightly
maintained conviction of appellants - Maxim "falsus in uno
falsus in omnibus" - Evidence.
Evidence:
G
Related witness - Testimony of- Evidentiary value of-
Held: Relationship of witnesses cannot be sole basis to discard
-~ or disbelieve their evidence if it is otherwise found to be
believable and trustworthy.
829 H
830 SUPREME COURT REPORTS [2008] 6 S.C.R.
,,
f
A Criminal trial: Delay in sending FIR to Magistrate - Effect
on prosecution case.
Prosecution case was that deceased no.1 was the
sarpanch of the village. One 'T' approached him regarding
the land dispute with A-6. He asked the parties to talk to
B elders of the village. A-6 then bore grudge against . .
deceased no.1. On the day of occurrence, at 6.30 p.m.,
A-6 found his son dead and believed that 'T' was
responsible for same.
c On the same day at 7.30 p.m., PW-1 wife of deceased
no.1 was standing in the verandah of her house, while
deceased Nos.1 and 2 were talking to PW-2 and PW-3,
both friends of deceased no.1 in front of house of
deceased no.1 when they noticed group of men armed
with dangerous weapons moving towards the house of
D
deceased no.1.
Deceased no.1 and his wife PW-1 rushed inside the
house and bolted its door from inside. All the twelve
accused trespassed the house and assaulted deceased
E nos.1and2 resulting in death. Charges were framed under
s.148 IPC against A-1, A-2, A-4 to A-12 and under s.429
IPC against A-6, A-10 to A-12 and under s.302 r.w. s.149
IPC against A-4, A-5 A-7 to A-9.
Sessions Judge found accused guilty of these
F offences and accordingly convicted them.
.l.
High Court confirmed the conviction and sentence
imposed upon A-1, A-2, A-10, A-11 and A-12 by the trial
court. The High Court, however, acquitted A-4, A-5, A-6,
A-7, A-8 and A-9 of all the charges levelled against them.
G
A-1, A-2, A-10, A-11 and A-12 are appellants before this
Court.
Dismissing the appeal, the Court 'I- -
HELD: 1. There was a delay of about 16 hours in
H
BATHULA NAGAMALLESWARA RAO & ORS. v. STATE 831
REP. BY PUBLIC PROSECUTOR
~
sending the FIR to the Magistrate, but the explanation as A
recorded by the trial court was that the majority of the.
police personnel were deputed in village for maintaining
the law and order situation which was too tense in view
of the murder of three men of the village on the same
evening. There is no cogent and convincing reason for B
... ...., doubting the correctness and truthfulness of the FIR
which was promptly lodged in the Police Station at 9:00
p.m. in relation to the murder of deceased No.1 and
deceased No.2 at about 7:30 p.m. The Investigating Officer
in cross-examination denied the suggestion of the c
defence that the statement of PW1 (EX P1) was brought
into existence around 2:35 p.m. or 3:00 p.m. on the next
day, i.e. 19.07.1996, after a good deal of consultations and
confabulations with the leaders of rival group of the
accused and particularly after observing the injuries on
D
the dead body of deceased No. 1. He categorically stated
that he recorded the statement (Ex. P1) made by PW-1
between 9:00 p.m. to 10:00 p.m. on 18.07.1996 and on
completion thereof, the same was sent through P.C. No.
2896 to the Police Station for registration of the FIR and
after registration, the same constable brought the copy E
of the FIR to the scene of occurrence at about 12:00 mid
night and thereafter PW-11 took up further investigation
of the case. A suggestion of the defence that his superiors
also aided in fabrication of Ex. P1 and under their
instructions he had not only anti-timed but also anti-dated F
the FIR and planted witnesses and having done so he
deposed falsely against the accused persons, has
categorically been denied by him. [Para 21] [847-B-H]
Marik & Ors. v. State of Bihar (1994) Supp. 2 SCC 372;
G
Meharaj Singh (UNk.) v. State of U P (1994) 5 SCC 188;
Thanedar Singh v. State of M. P (2002) 1 SCC 487; Kunju
.. .¥ Muhammed Alias Khumani & Anr. v. State of Kera/a (2004) 9
sec 193 - referred to.
H
832 SUPREME COURT REPORTS [2008] 6 S.C.R.
A 2. The evidence of PW-1 found corroboration from
the medical evidence. Despite lengthy cross-examination,
nothing has been elicited to discredit and discard her
testimony which has remained unshattered and
consistent. The testimony of PW-1 has been corroborated
B by PW-3, another eye-witness of the occurrence and PW-
11, the Investigating Officer. The presence of PW-3 on the
.....
scene of murder has fully been established. The High
Court, on re-examination and re-appraisal of the evidence
of PW-3, PW-11 and other evidence on record, held that
c the presence of A-4 to A-9 on the scene of occurrence
has not been proved by the prosecution by leading
cogent, satisfactory and convincing evidence to prove
that the said accused persons were the members of
unlawful assembly and shared common object with the
other accused with an intention to eliminate deceased No.
0
1 and deceased No.2. The evidence of P.W. 10 the then
SDPO who partly conducted the investigation of the case,
would prove that on the day of incident of murder, A-5
attended to the work of general laboratory of Water
Treatment Unit of VTPS situated at a distance of 40 kms.
E from the scene of occurrence. His evidence would also
disclose thatA-5 was present in the Thermal Power Station
from 4.30 p.m. to 8.30 p.m. on the day of occurrence which,
according to the prosecution, took place at about 7.30 p.m.
In these circumstances, the possibility of A-5 participating
F in the commission of the crime has been rightly ruled out
by the High Court. There is not an iota of evidence on
record to prove that A-7 and A-8 had shared the common
intention to eliminate deceased No.1 and deceased No.2.
Nothing has been brought on record to show that they
G were inimical against deceased No.1 and deceased No.2
so as to cause their death. The evidence against A-5 to A-
9 was not satisfactory and convincing to connect them
both the commission of the crime and, therefore, there is
no hesitation to accept the reasoning recorded and
H finding arrived at by the High Court in acquitting A-4 to A-
BATHULA NAGAMALLESWARA RAO & ORS. v. STATE 833
REP. BY PUBLIC PROSECUTOR
....' 1
9 by giving them benefit of doubt. [Paras 22, 23, 28) [849- A
B, C; 850-A, 852-G, H; 853-A-E]
Arjun Marik & Ors. v. State of Bihar (1994) Supp. (2) SCC
372 - relied on.
3. It is by now well-settled that mere relationship of B
' ---4. the witnesses cannot be the sole basis to discard or
disbelieve their evidence if it is otherwise found to be
believable and trustworthy. However, when the Court has
to appreciate the evidence of any interested witness it has
to be very careful in weighing their evidence. The Court
has to address to itself whether there are any infirmities c
in the evidence of such a witness; whether the evidence
is reliable and trustworthy and whether the genesis of the
crime unfolded by such an incident is probable or not. If
the evidence of any interested witness or a relative on a
careful scrutiny is found to be consistent and trustworthy, D
free from infirmities or any embellishment there is no
-Ir reason not to place reliance on the same. [Para 29) [853-
E-H; 854-A]
4. The High Court no doubt has disbelieved some
portion of the evidence of P.W. 3 in regard to the presence E
of A-4 to A-9 at the scene of occurrence on the grounds
that A-5 was present in the Thermal Power Station from
4.30 p.m. to 8.30 p.m. on the day of occurrence, therefore
the possibility of A-5 participating in the commission of
the offence could not be ruled out. The High Court has F
found no evidence against A-7 and A-8 on record to hold
them guilty for the murder of deceased No.1 and deceas~
No.2. It is well-settled that the Court can rely upon that
part of the statement of the witness which is cogent,
trustworthy, consistent and believable for the purpose of
holding the accused guilty of the offence. Simply because G
the name of P.W. 3 finds mentioned in FIR for the murder
... .i'
of son of A-6, the cogent and credible testimony of PW-3
holding A-1, A-2, A-10, A-11 and A-12 responsible for the
murder of deceased No.2 cannot be lost sight of on that
ground alone. The presence of PW-3 on the scene of H
834 SUPREME COURT REPORTS [2008] 6 S.C.R.
.,._
A occurrence has been fully established by the evidence of i
PW-1 and PW-2 and his name also finds mentioned as an
eye witness in the FIR which was lodged by P.W. 1
immediately after the incident of murder. The High Court
has found a portion of the evidence of P.W. 3 deficient in
B regard to the involvement of A-4 to A-9 for committing the
y
offences levelled against them and accordingly given
them benefit of doubt. It is settled that even if a major
portion of the evidence is found to be deficient, in case
the residue is sufficient to prove guilt of an accused,
c conviction can be maintained. It is the duty of the court to
separate grain from chaff. Where chaff can be separated
from grain, it would be open to the court to convict an
accused notwithstanding the fact that evidence of some
of the witnesses has been found to be deficient. Falsity
of a particular material witness or material particular would
D
not ruin it from the beginning to the end. The maxim
"falsus in uno falsus in omnibus" has no application in
India and the witnesses cannot be branded as liars.
[Para 34] [854-G; 855-A-G]
E Ani/ Sharma and Ors. v. State of Jharkhand (2004) 5 SCC
679; Bhimapa Chandappa Hosamani & Ors. v. State of
Karnataka (2006) 11 SCC 323; S. Sudershan Reddy & Ors.
v. State of A.P (2006) 10 SCC 163; Salim Sahab v. State of
MP (2007) 1 SCC 699; State of Punjab v. Jagir Singh (1974)
F 3 SCC 277; Lehna v. State of Haryana (2002) 3 SCC
76;Gangadhar Behera v. State of Orissa (2002) 8 SCC 381 -
relied on.
...
5. The plea thatA-10 is now aged about 87 years and
is suffering from Parkinson's disease Hypertension,
G Diabetes with severe Calcific AV Stenosis, Mild AR,
Moderate MR and Anemia of some degree, has already
undergone jail suffering for about three years and,
therefore, taking all these factors into consideration, his 1'
...
sentence may be reduced to the period already
H undergone by him, is not accepted because A-10 has been .
BATHULA NAGAMALLESWARA RAO & ORS. v. STATE 835
REP. BY PUBLIC PROSECUTOR [L.S. PANTA, J.]
held guilty for being a member of unlawful assembly and A
sharing common intention with A-1, A-2, A-10, A-11 and A-
12 to commit the murder of deceased No.2. [Para 35] [855-
G, 856-A, B]
6. The evaluation of the findings recorded by the High
Court do not suffer from any manifest error and mis- B
appreciation of evidence on record. Hence, the finding of
the High Court that the A-1, A-2, A-10, A-11 and A-12 are
the real culprits is upheld and their conviction and
sentences for the offences punishable under s.302 read
with s.149, s.302 and s.49 of the IPC are wholly sustainable C
and justifiable. [Para 36] [856-C, D, E]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 1097 of 2006.
From the final Judgment and Order dated 10.04.2006 of o
the High Court of Judicature of Andhra Pradesh at Hyderabad
in Criminal Appeal No. 942 of 2004.
P.S. Patwalia, G. Ramakrishna Prasad, Siddharth Patnaik
and G. Arun for the Appellants.
E
R. Sundaravardhan, Altaf Fathima (for D. Bharathi Reddy)
for the Respondent.
Siddhartha Chowdhury for the Applicant.
The Judgment of the Court was delivered by
F
LOKESHWAR SINGH PANTA, J. 1. Bathula
Nagamalleswara Rao, Bathula Laxminarayana, Bathula
Seshaiah, Name Subba Rao and Morakonda Bapa Rao have
filed this appeal against the judgment and order dated 101h April,
2006 passed by the Division Bench of the High Court of G
Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal
No. 942 of 2004 confirming their conviction and sentences
.. ;r imposed upon them by the trial court.
2. In all, 12 accused, namely, 8. Nagamalleswara Rao (A-
1), B. Laxminarayana, (A-2), B. Gopalan, (A-3), B. Subba Rao H
836 SUPREME COURT REPORTS (2008] 6 S.C.R.
A (A-4), B. Sreenu (A-5), B. Venkateswara Rao (A-6),
Jonnalgadda Ramu (A-7), Jonnalagadda Suresh (A-8), B
Kotaiah (A-9), B. Seshaiah (A-10), Narne Subba Rao (A-11)
and Morakonda Baparao (A-12) were charged and tried by
Additional Sessions Judge, Guntur, for offences under Sections
B 148/449/302/302r/w149/302 /302r/w149 and 427 of the Indian
Penal Code [for short 'IPC'] for committing murder of two
persons namely, Marchavarapu Venkatarao (deceased no.1}
and Thalluri Sambasiva Rao (deceased No.2) in village
Uddandarayunipalem.
C 3. The VII Additional Sessions Judge, Guntur, by judgment
dated 31 51 May, 2004 convicted all the accused (except A-3)
and sentenced them as under:-
Accused Conviction by Trial Court Sentence Imposed
D Nos. by Trial Court
A-1 U/s.302r/w.149,302,148 & 449 Life Imprisonment
A-2 302 r/w. 149, 302, 148 & 449 Life Imprisonment
A-4 302 r/w. 149 & 449 Life Imprisonment
E
A-5 302 r/w 149 & 449 Life Imprisonment
A-6 302 r/w 149, 302 & 449 Life Imprisonment
A-7 302 r/w 149 & 449 Life Imprisonment
F
A-8 302 r/w 149 & 449 Life Imprisonment
A-9 302 r/w 149 & 449 Life Imprisonment
A-10 302 r/w 149, 302 & 449 Life Imprisonment
G A-11 302 r/w 149, 302 & 449 Life Imprisonment
A-12 302 r/w 149, 302 & 449 Life Imprisonment
4. The accused were also imposed a fine of Rs. 500/- each
.....
H on each count and in default of payment of fine, to suffer S.I. for
BATHULA NAGAMALLESWARA RAO & ORS. v STATE 837
REP. BY PUBLIC PROSECUTOR [L.S. PANTA, J.]
six months and they were also sentenced to suffer R.I. for a A
period of five years and to pay a fine of Rs. 1000/- each for the
offence under Section 449 of the IPC and in default of payment
of fine to undergo S.I. for a period of six months. All the
substantive sentences were ordered to run concurrently.
5. The trial court, however, acquitted A-4, A-5, A-7 to A-9 B
for the offences under Section 427, IPC. A-3 died during the
pendency of the trial and trial against him, accordingly, stood
abated.
6. Brief facts necessary for disposal of this appeal are as c
follows:-
All the accused, deceased no.1, deceased no.2 and other
material witnesses are all residents of village
Uddandarayunipalem within the jurisdiction of Thulluru Police
Station. In the last panchayat elections held in the village area, D
deceased No. 1 was elected as Sarpanch of the village as a
candidate of Telugu Desam Party by defeating his rival Congress
Party candidate namely, Puli Babu who had the support of
Bathula Venkateswara Rao (A-6). It was alleged that one
Tadikoda Venkateswara Rao s/o Pedalakshmi Narayana E
approached deceased No. 1 for settlement of the pending land
dispute between him and A-6. Deceased No. 1 alleged to have
advised both the parties to approach the village elders and if
their dispute still remained unsettled, then they could approach
the competent court of law. It was alleged thatA-6 bore grudge F
against deceased no.1 as the latter was trying to support
Tadikolana Venkateswara Rao in the said matter.
7. On the day of occurrence i.e. 181h July, 1996 around
6:30 p.m. Rama Mohan Rao, son of A-6 was murdered at the
outskirts of the same village. The accused persons believed
that Tadikolana Venkateswara Rao might have murdered the
son of A-6. On the same day at about 7:30 p.m. M. Shakuntala
(PW-1 }, wife of deceased no.1, was standing on the verandah
~ . of their house, while deceased no. 1 and deceased no.2 were
chit-chatting with M. Srihari (PW-2) and B. Sathyanarayana (PW-
838 SUPREME COURT REPORTS [2008] 6 S.C.R.
A 3) - both friends of de~ased no.1, in front of the house of
deceased no.1, they noticed a group of men armed with ~
dangerous weapons moving towards the house of deceased
no.1. On the advice of PW-3, deceased no.1 and his wife PW-
1 rush~d inside the house and bolted its door from inside. In the
B meanwhile, all the twelve accused trespassed into the house
and committed mischief by breaking the telephone and other
'r 4
valuable articles lying in the hot,tse of deceased No. 1 and in the
process, the accused noticed deceased no.1 concealing himself
in the bedroom. The accused attacked deceased no. 1
c indiscriminately with lethal weapons. It was the case of the
prosecution that A-3 stabbed deceased No.1 with a crow bar
thrice below stomach and in left side of his abdomen. A-1
assaulted deceased no.1 with a knife on both sides of the neck
and chest A-2 hacked on the right upper arm and A-3 cut the
right wrist of deceased no.1 with a crow bar. Thereafter A-1 to
D A-3 continued inflicting injuries on other parts of the body of
deceased no.1 in the presence of his wife PW-1 and as a result
of severe injuries, Venkateswara Rao deceased No.1 died at
the spot. It was alleged that the remaining accused chased
Thalluri Sambasiva Rao deceased No. 2 who tried to escape
E from the scene of occurrence when A-6, A-10, A-11 and A-12
attacked deceased no.2 with axe, spears and crow bars. As a
result of multiple injuries suffered by deceased No. 2 upon his
· body, he died in the bathroom of the house of deceased No.1.
The whole incident was witnessed by P.Ws. 1, 2 and 3. On seeing
F the accused persons mercilessly attacking and assaulting
deceased No. 1 and deceased No. 2 with dangerous weapons,
both PWs-2 and 3 got frightened and they escaped from the
scene of occurrence by jumping over the wall of the house. A-4,
·'
A-5, A-7, A-8 andA-9 in the process damaged the doors, window
glass panes of the house, motorcycle, television, etc. of
G
deceased no. 1. All the accused thereafter left the scene of
occurrence.
8. On receiving the information about the incident, P.
Maqbool Khan (PW-11) Sub-Inspector ofThulluru Police Station,
. "
H rushed to the scene of occurrence and noticed the dead bodies
BATHULA NAGAMALLESWARA RAO & ORS. v. STATE 839
REP BY PUBLIC PROSECUTOR [L.S. PANTA, J.]
~
t of deceased No. 1 and deceased No. 2 lying in the house of A
deceased No.1. He recorded the statement of P.W. 1 at about
9:00 p.m (Exhibit P-1 ). On the basis of Exhibit P.1, PW-8 - Head
Cosntable P. Mallikarjuna Rao of Thulluru Police Station
registered First Information Report (F.l.R.) in Crime No. 63/1996
under Exhibit P-5. Thereafter, K. Babu Rao (PW-13), Circle 8
- -,(
Inspector of Police, took up investigation and conducted
Panchnama (Exhibit P-2) of the scene of occurrence in the
presence of B. Subba Rao (PW-5), held inquest over the dead
bodies of both the deceased in the presence of M. Subba Rao
(PW-6) and Puli Sambayya (PW-7) and prepared a joint Inquest c
Report (Exhibit P-4). Then, P.W. 13 got the scene of occurrence
photographed through J. Rambabu (PW-9). On receipt of
requisition from the Police on 19th July, 1996, Dr. K. Mahipal
Reddy (PW-12) held autopsy over the dead bodies of deceased
nos. 1 and 2 and issued post mortem certificates [Exhibits pg
D
and P1 O[ respectively. He opined that both the deceased
appeared to have died due to multiple injuries. On 5th August,
1996 at about 8:00 a.m. P.W. 11 arrested A-7, A-8 and A-9. On
23rd August, 1996, he arrested A-2 and A-11 whereas A-1, A-3,
A-4, A-6 and A-10 were arrested by PW-11 on 81h September,
1996. E
9. After completion of the investigation and after receipt of
the post mortem report, charge sheet was filed against the
accused persons in the Court of Additional Munsif Magistrate,
Mangalagiri. Additional Munsif Magistrate committed trial to the F
learned Sessions Judge, Guntur who, in turn, made over the
~-
trial of the case to the court of 2nd Additional Sessions Judge,
Guntur. The learned Additional Sessions Judge, Guntur framed
charges under Section 148 IPC against A-1, A-2, A-4 to A-12
and under Section 449 of IPC against A-6, A-10 to A:"-12 and
G
under Section 302 read with Section 149 IPC against A-4, A-5,
A-7 to A-9. All the accused persons pleaded not guilty to the
charges and claimed to be tried. Subsequently, the trial of the
case was transferred to VII Additional Sessions Judge, Guntur.
10. The prosecution in support of its case examined as H
840 SUPREME COURT REPORTS [2008] 6 S.C.R.
A many as 13 witnesses. In their statements recorded under
Section 313 of the Code of Criminal Procedure [for short
'Cr.P.C'], the accused denied their involvement in the crime and
pleaded false implication on suspension. In defence, the
accused have examined Thummala Veeraiah Chowdary
B (D.W.1 ), Machiraju Koti Surya Prakasharao (D.W. 2), Yethirajula
Srinivasarao (D.W.3) and Garji Rambabu (D.W. 4). The trial
,.. .
court, on scrutiny of the evidence on record, held the accused
guilty of the aforesaid offences and, accordingly, convicted and
sentenced them.
C 11. Being aggrieved, the accused filed the appeal under
Section 374 Cr.P.C. before the High Court and the High Court,
confirmed the conviction and sentence imposed upon A-1, A-2,
A-10, A-11 and A-12 by the trial court. The High Court, however,
has acquitted A-4, A-5, A-6, A-7, A-8 and A-9 of all the charges
o levelled against them. Now, A-1, A-2, A-10, A-11 and A-12 are
appellants before us in appeal.
12. We have heard the learned counsel for the parties and
with their assistance examined the judgment of the High Court
and re-appraised the entire material evidence placed on record.
E Mr. P.S. Patwalia, learned senior Advocate appearing on behalf
of A-1, A-2, A-9, A-11 and A-12, assailed the judgment of the
High Court inter alia contending :-
(i) that the High Court erred in not considering the fact
that there is unconscionable delay of 16 hours in
F sending the FIR (Ex. PS) to the Magistrate especially
when the Police had taken the statement of PW-1 at
7.30 p.m. itself regarding the commission of the
offences on the basis of which the FIR was recorded
at 9.00 p.m. in the Police Station. According to him,
G the unexplained delay in sending the FIR to the
Magistrate created a serious doubt about the
correctness and truthfulness of the prosecution case.
He emphasized that the FIR on the face of it indicates
, that the same was prepared after due deliberation
H and consultation between PW-1, and other interested
BATHULA NAGAMALLESWARA RAO & ORS. v. STATE 841
REP. BY PUBLIC PROSECUTOR [L.S. PANTA, J.)
r
~
witnesses in connivance of the police. He submitted A
that if FIR was in existence at 11 :00 p.m. on
18.07 .1996 in which the names of A-8 and A-9 were
mentioned as assailants, they could have been
arrested by the Investigating Officer on the spot itself
- ..., as the evidence shows that they were present at the B
scene of occurrence when police reached the place
and this circumstance would also prove that the FIR
was a tainted, anti-timed and anti-dated document
prepared by the police around 3:00 p.m. on
19.07.1996. c
(ii) that the testimony of PW-1, wife of deceased No.1
is wholly unreliable, unbelievable and inherently
improbable and has been wrongly believed by the
Courts below. If she was shocked into silence at the
time of incident of murder it could not have been D
possible for her in the normal course to have given
+
precise details of the injuries being inflicted by each
of the accused with a particular weapon on different
parts of the body of deceased No. 1. According to
the learned counsel, PW -1 is not an eye witness to E
the incident of murder and she has been projected
later on by the Investigating Officer after receipt of
the injuries statements from the doctor who conducted
the post mortem over the dead bodies of both the
deceased, otherwise PW-1 could not have accurately F
detailed the precise injuries on the body of deceased
No.1 in her statement (Ex. P1)
(iii) that the High Court has disbelieved the testimony of
PW-3 in regard to the presence of A-4 to A-9 at the
scene of occurrence and their participation in the G
commission of crime and, therefore, they were given
benefit of doubt. The conviction of A-1, A~2. A-10, A-
11 and A-12 relying upon the same set of evidence
of P.W. 3 being one of the accused in FIR No. 64/
1996 for the murder of A-6, therefore, is not proper H
842 SUPREME COURT REPORTS [2008] 6 S.C.R.
~
A and sustainable as PW-3 is positively an interested
witness to frame the appellants in a false case.
13. Mr. R. Sundaravardhan, learned senior counsel for the
respondent-State on the other hand contended that the reasons
given by the trial court as well as by the High Court for recording
B the order of conviction of the appellants are based upon proper ., .
appreciation of evidence led by the prosecution in the case.
According to the learned counsel, the courts below have
accepted the explanation of the prosecution for causing delay
in submitting the FIR to the Magistrate and therefore, this Court
c shall not be obliged to disturb the finding of facts recorded by
Courts below. He then submitted that merely because P.W. 1
and P.W. 3 the two eye witnesses are relative and friend
respectively of deceased no.1, their testimony cannot be
disbelieved and discarded on this premise only as their evidence
D corroborated by other evidence is cogent, clear and satisfactory
with the hypothesis of the guilt of the appellants and this Court
+
should be slow to interfere in the well-reasoned and well-merited
judgments of the courts below.
14. We have given our anxious consideration to the rival
E contentions of the learned counsel for the parties. The arguments
put forward by Mr. Patwalia although are extremely attractive,
yet we find ourselves unable to agree with the same. It is no
doubt true that FIR (Ex. P5) came to be recorded at 11 :00 a.m.
on 18.07.1996 in the Police Station by Head Constable P.
F Mallikajunarao (PW-8), who was posted at the relevant time at
Police Station, Thulluru. The incident of murder of deceased
No. 1 and deceased No. 2 took place at 7:30 p.m. on 18.07.1996
as per Complaint (Ex. P1) made by PW-1 to Sub-Inspector
Maqbool Khan (PW-11), which was sent to Police Station,
G Thulluru, through PC No.2896 for registration of the FIR. It has
come in the cross-examination of PW-8 that the distance
between Police Station, Thulluru, and Mangalagiri where the
Magistrate holds court is about 20 kms. PW-8 categorically
stated that FIR (Ex. P5) was registered by him at 11 :00 p.m. on
H 18.07.1996 and even if the copy of the FIR was to be sent to the
BATHULA NAGAMALLESWARA RAO & ORS. v. STATE 843
REP. BY PUBLIC PROSECUTOR [L.S. PANTA, J.)
Magistrate during the mid-night, it was not possible for the Police A
Constable to take the FIR and deliver the same to the Magistrate
at Mangalagiri on the intervening night of 18/19.07 .1996 as there
was no bus service available during the night time between the
two places. The trial court in its judgment observed that the FIR
-,; was received by the Magistrate at 4.00 p.m. on 19.07.1996. B
The trial court has noticed but not accepted the contention of
the learned counsel for the accused persons that in these
circumstances the statement of PW-1 (Ex. P1) might have been
recorded at 3.00 p.m. on 19.07.1996 at village
Uddandayunipalem and from the village itself the statement c
might have been sent to Mangalagiri in a police vehicle and
therefore, the same was received by the Magistrate at 4.00 p.m.
on 19.07.1996. We have independently scrutinized the evidence
of PW-1 and PW-11, the Investigating Officer. It is their clear
and consistent testimony that statement (Ex. P1) was recorded
0
at 9.00 p.m. on the night of 18.07.1996 after the incident of
murder had occurred at 7.30 p.m. It is undisputed fact that one
Ramamohanarao, son of A-6, was murdered on the same
evening at about 6.00 or 6.30 p.m. at the outskirts of village
Uddandayunipalem. It is the evidence of PW-11, Sub"lnspector
of Police, that about 7.15 p.m. M. Venkatarao informed him that E
his rival group of men armed with deadly weapons was moving
towards their village and on receiving the information he along
with other police personnel had immediately proceeded to
village Uddandayunipalem in a private jeep for maintaining law
and order. PW, Head Constable, in cross-examination, F
corroborated the version of PW, Sub-Inspector of Police, that
on 18.07.1996 around 7.15 p.m. on receipt of the information in
regard to some incident of violence in the village, P.W. 11 along
with five staff members left the Police Station for maintaining
law and order in the village. PW-8 sent FIR (Ex. PS) to the G
Magistrate through PC No.2896 who brought statement of PW-
1 [Ex. P-1) at 11 :00 p.m. to the Police Station. PW-13, Circle
Inspector of Police, stated that on the mid night of 18/19.07.1996
at about 00.15 hours he received a copy of express FIR through
PC No.2896 disclosing the incidents of murder of three persons H
844 SUPREME COURT REPORTS [2008] 6 S.C.R.
A in village Uddandayunipalem. The endorsement made on FIR
(Ex. P5) by the Magistrate on its bare perusal would reveal that
he received a copy of the F.l.R. through PC No.1293 and not
through PC No.2896 as deposed by P.W. 8. It appears from the
record that PC No.2896 handed over a copy of express FIR to
B PW-13, Circle Inspector of Police, at village Uddandayunipalem
at 00.15 hours on the intervening night of 18/19.07.1996 and
then constable PC No.1293 might have been deputed to deliver
the FIR (Ex. P5) to the Magistrate at Mangalagiri. The trial court
in its judgment observed that keeping in view the serious and
C tense situation in the village because of the murder of three
persons on the same evening, the entire staff of P.olice Station
was deputed to maintain law and order problem there. Out of
the victims, one was the son of A-6, ex-Sarpanch of the village,
whereas deceased No.1 was the sitting Sarpanch of the same
village. Taking these circumstances into consideration, the trial
D court held that there was no delay in lodging the FIR with the
police and delay in sending a copy of the FIR to the Magistrate
was a result of shortage of police personnel who could not be
deputed to deliver the same to the Magistrate during the night
of 18.07.1996 or in the early hours of 19.07.1996. The High
E Court has re-examined the evidence on record and held that
the delay in sending FIR to the Magistrate was not deliberate or
intentional, but because of some technical errors committed by
the Investigating Officer during the course of investigation of
the case which could not be found fatal to the case of the
F prosecution, especially when the Investigation Officer was not
. cross-examined on this point.
15. Mr. Patwalia, in support of the submission that the FIR
(Ex. P5) was anti-timed and anti-dated and delay of 16 hours in
sending the FIR to the Magistrate would cast a serious doubt of
G its correctness, has relied upon the decisions of this Court in
Thu/ia Kali v. The State of Tamil Nadu [(1972) 3 SCC 393);
Arjun Marik & Ors. v. State of Bihar [(1994) Supp. (2) SCC
372]; Meharaj Singh (UNk) v. State of U. P. [(1994) 5 SCC
188); Thanedar Singh v. State of M. P [(2002) 1 SCC 487] and
H Kunju Muhammed Alias Khumani & Anr. v. State of Kera/a
BATHULA NAGAMALLESWARA RAO & ORS. v. STATE 845
REP. BY PUBLIC PROSECUTOR [L.S. PANTA, J.]
'
r
[(2004) 9 sec 193]. A
16. It is not in dispute that this Court in series of judgments
has repeatedly and consistently emphasized that First
Information Report in a criminal case is an extremely vital and
. "I
valuable piece of evidence for the purpose of corroborating the
oral evidence adduced at the time of trial. The importance of B
the report can hardly be over- estimated from the standpoint of
the accused. The object of insisting upon prompt lodging of the
report to the police in respect of commission of an offence is to
obtain early information regarding the circumstances in which
the crime was committed, the names of the actual culprits and c
the part played by them as well as the names of the eye-witnesses
present at the scene of occurrence and requirement of sending
the FIR to the Magistrate forthwith is to enable the Magistrate
concerned to have a watch on the progress of the investigation.
In Thulia Kali v. State of Tamil Nadu (supra), it is held that delay D
~ in lodging the First Information Report often results in
embellishment which is a creature of after-thought. On account
of delay the report not only gets benefits of the advantage of
spontaneity, danger creeps in of the introduction of coloured
version, exaggerated account of connected story as a result of E
deliberation and consultation. It is held that in order to avoid all
criticisms of the defence, it is therefore essential that the delay
in lodging of the First Information Report should be satisfactorily
explained.
17. In Arjun Marik & Ors. v. State of Bihar (supra), this F
Court held that Section 157 of Cr.P.C. mandates that if, from
information received or otherwise, an officer in charge of Police
Station has reason to suspect the commission of an offence
which he is empowered under Section 156 to investigate, he
shall forthwith send a report of the same to the Magistrate G
empowered to take cognizance of such offence upon a police
report. Section 157, Cr.P.C. thus, in other words, directs the
sending of the report forthwith, i.e. without any delay and
immediately. Further, Section 159 Cr. P.C. envisages that on
receiving such report, the Magistrate may direct an investigation H
846 SUPREME COURT REPORTS [2008] 6 S.C.R.
1
A or, if he thinks fit, to proceed at once or depute any other
Magistrate subordinate to him to proceed to hold a preliminary
inquiry into the case in the manner provided in the Code of
Criminal Procedure. The forwarding of the occurrence report is
indispensable and absolute and it has to be forwarded with
B earliest despatch which intention is implicit with the use of the ~
.
word "forthwith" occurring in Section 157, which means promptly
and without any undue delay. The purpose and object is so
obvious which is spelt out from the combined reading of
Sections 157 and 159 Cr.P.C. It has the dual purpose, firstly to
c avoid the possibility of improvement in the prosecution story
and introduction of any distorted version by deliberations and
consultati~n and secondly to enable the Magistrate concerned
to have a watch on the progress of the investigation.
18. In Meharaj Singh (UNk.) v. State of U. P. (supra), this
D Court held that delay in sending special report to the Magistrate
or failure to send copy of the FIR to the Medical Officer along
with dead body for post mortem and absence of its reference
in inquest report can give rise to an inference that the FIR had
been anti-timed and had not been recorded till the inquest
E proceedings were over at the spot by the Investigating Officer.
19. Again in Thanedar Singh v. State of M. P. (supra), this
Court held on facts that failure of the prosecution to clear doubt
regarding the date and time of recording of the Fl Rand delay in
sending FIR to Magistrate cast a serious doubt on the
F correctness of the FIR.
20. In Kunju Muhammed Alias Khumani & Anr. v. State
of Kera/a [(2004) 9 SCC 193], this Court reiterated that the delay
in sending the FIR to the Magistrate without giving satisfactory
explanation creates a serious doubt about the prosecution case.
G
In that case it was found: (a) the statement of PW-1 that the
complaint was signed on the mid night of 3.11.1991; (b} FIR
-i
reaching the Jurisdictional Magistrate more than 36 hours after
the incident in question though the court is situated in the same
town; (c) the evidence of the doctor as to the presence of rigor
H
BATHULA NAGAMALLESWARA RAO & ORS. v. STATE 847
REP. BY PUBLIC PROSECUTOR [L.S. PANTA, J.)
mortis on the body of the deceased indicating death must have A
occurred much earlier than 8.15 to 8.30 a.m. on 03.11.191 and
(d) recording in the inquest report (Ex. P6) that the body of the
deceased when examined was found to be cold and frozen. In
the circumstances noticed above, the Court held that, delay of
more than 36 hours in sending the FIR to the Magistrate created B
a serious doubt about the prosecution case and had found the
accused persons entitled for benefit of doubt.
21. We have earlier pointed out that in the present case
there was a delay of about 16 hours in sending the Fl R (Ex. P5)
to the Magistrate, but the explanation as recorded by the trial C
court that the majority of the police personnel were deputed in
village Uddandarayunipalem for maintaining the law and order
situation which was too tense in view of the murder of three
men of the village on the same evening, we do not find any cogent
and convincing reason for doubting the correctness and D
truthfulness of the FIR which was promptly lodged in the Police
Station at 9:00 p.m. in relation to the murder of deceased No.1
and deceased No.2 at about 7:30 p.m. The Investigating Officer
in cross-examination denied the suggestion of the defence that
Ex. P1 was brought into existence around 2:35 p.m. or 3:00 E
p.m. on the next day, i.e. 19.07.1996, after a good deal of
consultations and confabulations with the leaders of rival group
of the accused and particularly after observing the injuries on
the dead body of deceased No. 1. He categorically stated that
he recorded the statement (Ex. P1) made by PW-1 between F
9:00 p.m. to 10:00 p.m. on 18.07.1996 and on completion
thereof, the same was sent through P.C. No. 2896 to the Police
Station for registration of the FIR and after registration on the
same constable brought the copy of the FIR to the scene of
occurrence at about 12:00 mid night and thereafter PW-11 took G
up further investigation of the case. A suggestion of the defence
that his superiors also aided in fabrication of Ex. P1 and under
their instructions he had not only anti-timed but also anti-dated
the FIR and planted witnesses and having done so he deposed
falsely against the accused persons, has categorically been H
denied by him.
848 SUPREME COURT REPORTS [2008] 6 S.C.R.
A 22. The evidence of PW-1 was attacked by A-1, A-2, A-3,
A-10, A-11 and A-12 on the ground that her presence at the
relevant time on the spot on the day of occurrence was doubtful
as in the morning she had gone to the house of her daughter at
Vijayawada and was summoned after the incident of murder
B for making the statement (Ex.P1) on the basis of which FIR came
to be registered. We have independently scrutinized the
evidence of PW-1, wife of deceased No.1. It is her clear and
consistent evidence that on 18.07.1996 at about 7:30 p.m. while
she was standing at the verandah of her house and her husband
c along with Talluri Sambasivarao (deceased No.2), M. Srihari
(P.W. 2), B. Satyanarayana (P.W. 3) and some more persons
were chit-chatting in front of their house, she saw about 40
persons armed with dangerous weapons rushing to their house
and on seeing them, P.W. 3 asked her and her husband
Venkatarao to conceal themselves inside the house otherwise
0
they would be killed by the rival group men. According to her, A-
1, A-2, A-4 to A-12 along with A-3 came to the verandah of their
house and after breaking open the doors, they caused damage
to the T.V. and other articles lying in the rooms. A-3 was armed
with crow-bar, A-1 was armed with knife,A-2 was having an axe
E in his hand. They entered into their bedroom through the bottom
portion of the door. When her husband was standing at the
corner of the bedroom, she requested A-1 to A-3 not to harm
her husband. A-1 pulled her aside and A-3 stabbed her husband
thrice with the crow-bar. A-2 assaulted him on the right arm.
F When her husband fell down on the floor, A-1 to A-3
indiscriminately inflicted more injuries on his body. Thereafter,
her mother-in-law knocked at the door of the house and on
opening the door she was informed by her mother-in-law thatA-
6, A-10, A-11 and A-12 had murdered Talluri Sambasivarao
G (deceased No.2) in their bathroom with crow-bars and axes.
The trial court as also the High Court both have accepted the
evidence of PW-1 in its entirety without any suspicion and
embellishment The deceased No.1 sustained as many as 26
injuries on his body as noticed by Dr. K. Mahipal Reddy (PW-
H 12) in post morlem certificate (Ex. P10). The cause of death of
BATHULA NAGAMALLESWARA RAO & ORS. v. STATE 849
REP BY PUBLIC PROSECUTOR [LS. PANTA, J]
-r deceased No. 1 in the opinion of the doctor was due to multiple A
injuries sustained by him with sharp-edged weapon. Ex. P1,
which was the earliest version of the incident of murder narrated
by PW-1 to the police would reveal that she had categorically
named A-1, A-2, A-3 (A-3 died during the pendency of the trial),
A-10, A-11 and A-12 as assailants who mercilessly inflicted B
multiple injuries on almost every part of the body of her husband
with lethal weapons resulting in his death. The evidence of PW-
1 finds corroboration from the medical evidence. Despite lengthy
cross-examination, nothing has been elicited to discredit and
discard her testimony, which has remained unshattered and c
consistent A suggestion of the defence that A-10 was unable to
walk without assistance of any person as he, at the relevant
time, was aged about 70 years, has been denied by her. She
categorically reasserted that firstly A-1 to A-3 encircled her
husband and then A-1 assaulted him thrice with knife, while A-2
D
assaulted him on the right fore-arm with an axe and again A-1
and A-3 one after the other inflicted more severe injuries on the
body of her husband with the weapons they were holding in their
. hands. A series of suggestions were put to her by the defence:
(a) that on the morning of the day of the incident of murder of her
husband she had gone to Vijayawada to look after her daughter E
Vasavi who was sick, (b) she was not present in the village and
that about 10:00 p.m. or 11:00 p.m. she was called from
Vijayawada, (c) after due deliberation and consultation among
her well-wishers and relatives, she got complaint (Ex. P1)
fabricated at about 2 O' clock in the intervening night of 18/ F
19.07.1996, (d) the contents of Ex. P1 were not stated by her
and she only subscribed her signatures thereon and (e) the
police also contributed their role in fabricating her statement
(Ex. P1) have emphatically and categorically been denied by
.her. She, however, admitted that A-6 is a leader of one group in G
her village, but she denied that on account of ill-feelings between
two rival groups of the people in the village, a false case was
).
foisted against the appellants by her. She also denied the further
suggestion that none of the appellants was responsible for
c;ausing death of her husband or the death of Sambasivarao, H
850 SUPREME COURT REPORTS [2008] 6 S.C.R.
A deceased no.2.
23. The testimony of this witness has been corroborated
by PW-3, another eye-witness of the occurrence and PW-11,
the Investigating Officer. The presence of PW-3 on the scene of
murder has fully been established. It is the evidence of PW-3
8 that on 18.07.1996 at about 7.30 p.m. he along with PW-2,
deceased No.2 and few more people was present in the house
of deceased No. 1 and when they were chit-chatting in front of
the house, all the accused persons armed with crow-bars,
spears, axes and knives rushed to the house of deceased No.1
C and on seeing them, he advised deceased No.1 and his wife
PW-1 to conceal themselves inside their house as he
apprehended some danger to the life of deceased No. 1. PW-
1 and deceased No. 1 went inside their house and bolted the
door from inside. He saw that out of twelve accused persons
D half of them had surrounded the house of deceased No.1 and
the remaining accused chased deceased No.2, who was running
to his house, which is at a distance of 10 yards from the house
of deceased No.1. He saw A-6, A-10, A-11 and A-12 breaking
open the door of the bathroom of deceased No. 1 where they
E killed deceased No.2 with crow-bars, axes and spears. In his
presence, the police conducted inquest over the dead body of
both the deceased persons. The High Court found that
deceased No.2 sustained more than 22 injuries on his body as
noticed by doctor in post mortem certificate (Ex. P9). According
F to the opinion of the doctor, the cause of death of deceased
No.2 was due to multiple injuries. The High Court has given the
details of the injuries sustained by both the deceased at pages
8 to 14 of the judgment. We do not think it necessary to
reproduce the details of those injuries again in this judgment for
G unnecessarily burdening the record as the death of both the
deceased due to the injuries sustained by them on their bodies
is not in dispute. PW-3 also stated that inquest on the dead
bodies of deceased No. 1 and deceased No. 2 was conducted
by the police in his presence. In spite of lengthy cross-
examination, his testimony has not been shattered or
H
BATHULA NAGAMALLESWARA RAO & ORS. v. STATE 851
REP. BY PUBLIC PROSECUTOR [L.S. PANTA, J.]
1 impeached by the defence. A suggestion of the defence that for A
the past four days from the date of recording of his statement in
the court, he was tutored to give evidence against the accused
persons has categorically been denied by him. He has admitted
that he was framed as an accused in the murder of the son
of A-6. B
'I 24. PW-2 in his deposition stated that at about 7.30 p.m.
on 18.07.1996 he along with PW-3, deceased No.1, deceased
No.2 and some persons were chit-chatting in front of the house
of deceased No.1. PW-1, wife of deceased No.1, was sitting
on a cot in the verandah. At that time, a group of men had c
gathered on the road side raising slogans near the house of
deceased No. 1. PW-3 requested deceased No. 1 and his wife
PW-1 to conceal themselves inside the house. They both went
inside the house and bolted the door of their house from inside.
On seeing the accused persons armed with dangerous D
weapons, he along with PW-3 made good their escape from
+ the scene of occurrence by jumping over the northern side
compound wall of the house of deceased No.1. On coming to
know about the arrival of police, he went to the house of
deceased No.1 and found deceased No. 1 and deceased No.2 E
lying dead in a pool of blood. The inquest report of the dead
bodies of deceased No.1 and deceased No.2 was conducted
and prepared by the Investigating Officer in his presence.
25. The evidence of PWs-6 and 7 would go to show that
they were present on 19.07.1996 at about 3.00 a.m. when the F
police conducted inquest on the dead body of deceased No.1
.of
under Ex. P3 and on the same day at about 5.30 a.m., inquest
on the dead body of deceased No.2 was conducted under Ex.
P4. Both these witnesses are mediators. They stated that
deceased No.1 and deceased No.2 died as a result of fatal G
injuries sustained by them. Both these witnesses have
categorically stated about the descriptive particulars of the
scene 'of occurrence at the house of deceased No. 1.
26. D. Siv~nagendramma (PW-4) is the wife of deceased
H
852 SUPREME COURT REPORTS [2008] 6 S.C.R.
A No.2. It is her evidence that on receiving the information of her
husband's death, she went to the house of deceased No.1 where
she spotted her husband lying in a pool of blood in the bathroom.
Nothing substantial has been elicited from her cross-
examination by the defence to disbelieve and discredit her
B evidence.
27. PW-11 is the Investigating Officer. It is his evidence
that on 18.07.1996 around 7:15 p.m. he was informed on
telephone by M. Venkatarao (deceased No. 1), the then
Sarpanch of village Uddandarayunipalayem that a group of men
C raising slogans and carrying dangerous weapons in their hands
was moving towards his house with clear intention to commit
offence and requesting the police to come to the village to defuse
the tense situation. He, in turn, informed the Inspector of Police,
Amaravathi, through VHF and himself alongwith staff members
D proceeded to the village to maintain law and order problem.
The Inspector of Police, Amaravathi, later on came to the village.
When he reached at the house of M. Venkatarao, he found his +
dead body lying in a room and also spotted the dead body of
deceased No.2 in the bath room of the house of deceased No.1.
E On receiving necessary instructions from Inspector of Police,
P.W. 11 recorded the statement (Ex. P-1) of P.W. 1 at about
9.00 p.m. and obtained her signatures thereon. He sent the said
statement through PC No.2896 to Police Station, Thulluru, and
instructed PW-8, who was in charge of Police Station, to register
F the case. He handed over the investigation to the Inspector of
Police. He arrested some of the accused persons on different
dates. On examination of the evidence of this witness, it stands
proved that he read over the statement (Ex. P1) to PW-1, who
admitted the contents thereof to be correct.
G 28. The High Court, on re-examination and re-appraisal
of the evidence of PW-3, PW-11 and other evidence on record,
held that the presence of A-4 to A-9 on the scene of occurrence
has not been proved by the prosecution by leading cogent,
satisfactory and convincing evidence to prove that the said
H accused persons were the members of unlawful assembly and
BATHULA NAGAMALLESWARA RAO & ORS. v. STATE 853
REP. BY PUBLIC PROSECUTOR [L.S. PANTA, J.]
-~
shared common object with the other accused with an intention A
to eliminate deceased No. 1 and deceased No.2. The evidence
of P.W. 10 the then SDPO; Guntur, who partly conducted the
investigation of the case, would prove that on the day of incident
of murder, A-5 attended to the work of general laboratory of
Water Treatment Unit ofVTPS situated at a distance of 40 kms. B
....
from the scene of occurrence. His evidence would also disclose
that A-5 was present in the Thermal Power Station from 4.30
p.m. to 8.30 p.m. on the day of occurrence which, according to
the prosecution, took place at about 7.30 p.m. In these
circumstances, the possibili~y of A-5 participating in the c
commission of the crime has been rightly ruled out by the High
Court. We find not an iota of evidence on record to prove that A-
7 and A-8 had shared the common intention to eliminate
deceased No.1 and deceased No.2. Nothing has been brought .
on record to show that they were inimical against deceased
D
No.1 and deceased No.2 so as to cause their death. The
+ evidence against A-5 to A-9 was not satisfactory and convincing
to connect them both the commission of the crime and, therefore,
we have no hesitation to accept the reasoning recorded and
finding _arrived at by the High Court in acquitting A-4 to A-9 by
giving them benefit of doubt. E
29. It is by now well-settled that mere relationship of the
witnesses cannot be the sole basis to discard or disbelieve
their evidence if it is otherwise found to be believable and
trustworthy. However, when the Court has to appreciate the F
evidence of any interested witness it has to be very careful in
• -'¥
weighing their evidence. In other words, the evidence of an
interested witness requires greater care and caution while
scrutinizing· his evidence. The Court has to address to itself
whether there are any infirmities in the evidence of such a
G
witness; whether the evidence is reliable and trustworthy and
whether the genesis of the crime unfolded by such an incident
:. is probable or not. If the evidence of any interested witness or a
relative on a careful scrutiny is found to be consistent and
trustworthy, free from infirmities or any embellishment there is
H
854 SUPREME COURT REPORTS (2008] 6 S.C.R.
t
A no reason not to place reliance on the same (see Arjun Marik &
Ors. v. State of Bihar ((1994) Supp. (2) SCC 372].
30. In Mehraj Singh v. State of U. P. (supra), this Court
held that testimony of interested witness cannot be rejected on
the sole ground of interestedness but should be subjected to
B close scrutiny.
31. In Anil Sharma & Ors. v. State of Jharkhand [(2004) 5
sec 679], this Court reiterated and re-emphasisd that the
testimony of related witness, if after deep scrutiny found to be
c otherwise truthful and credible, cannot be discarded on the sole
ground of interested witnesses. Again, in Bhimapa Chandappa
Hosamani & Ors. v. State of Karnataka [(2006 (11) SCC 323],
it has been held that credibility of the witness is to be tested by
reference to the quality of his evidence which must be free of
any blemish or suspicion, must impress the court as wholly
D
truthful, must appear to be natural and so convincing that the
court has no hesitation in recording a conviction solely on that +
basis.
32. In a recent decision, this Court in S. Sudershan Reddy
E & Ors. v. State ofA. P. [(2006) 10 SCC 163] held that relationship
is not a factor to affect the credibility of a witness. It is more
often than not that a relation would not conceal the actual culprit
and make allegations against an innocent person. Foundation
has to be laid if plea of false implication is made. In such cases,
F the court has to adopt a careful approach and analyse the
evidence to find out whether it is cogent and credible.
33. Again this Court in Salim Sahab v. State of M. P. [(2007)
1 SCC 699] held that mere relationship is not a factor to affect
credibility of a witness. To the same effect are the decisions in
G State of Punjab v. Jagir Singh ((1974) 3 SCC 277], Lehna v.
State of Haryana ((2002) 3 SCC 76] and Gangadhar Behera
v. State of Orissa [(2002) 8 SCC 381 ].
34. The High Court no doubt has disbelieved some portion
of the evidence of P.W. 3 in regard to the presence of A-4 to A-
H
BATHULA NAGAMALLESWARA RAO & ORS. v. STATE 855
REP. BY PUBLIC PROSECUTOR [L.S. PANTA, J.]
9 at the scene of occurrence on the grounds thatA-5 was present A
in the Thermal Power Station from 4.30 p.m. to 8.30 p.m. on the
day of occurrence, therefore the possibility of A-5 participating
in the commission of the offence could not be ruled out. The
High Court has found no evidence againstA-7 andA-8 on record
to hold them guilty for the murder of deceased No.1 and B
deceased No.2. It is well-settled that the Court can rely upon
that part of the statement of the witness which is cogent,
trustworthy, consistent and believable for the purpose of holding
the accused guilty of the offence. Simply because the name of
P.W. 3 finds mentioned in FIR for the murder of son of A-6, the c
cogent and credible testimony of PW-3 holding A-1, A-2, A-10,
A-11 and A-12 responsible for the murder of deceased No.2
cannot be lost sight of on that ground alone. The presence of
PW-3·on the scene of occurrence has been fully established by
the evidence of PW-1 and PW-2 and his name also finds
0
mentioned as an eye witness in the FIR which was lodged by
P.W. 1 immediately after the incident of murder. The High Court
has found a portion of the evidence of P.W. 3 deficient in regard
to the involvement of A-4 to A-9 for committing the offences
levelled against them and accordingly given them benefit of
doubt. It is settled that even if a major portion of the evidence is E
found to be deficient, in case the residue is sufficient to prove
guilt of an accused, conviction can be maintained. It is the duty
of the court to separate grain from chaff. Where chaff can be
separated from grain, it would be open to the court to convict an
accused notwithstanding the fact that evidence of some of the F
witnesses has been found to be deficient. Falsity of a particular
material witness or material particular would not ruin it from the
beginning to the end. The maxim "falsus in uno falsus in
omnibus" has no application in India and the witnesses cannot
be branded as liars [see S. Sudershan Reddy and Ors. v. State G
of A. P. [(2006) 1o sec 163].
35. Lastly, it was urged by Mr. Patwalia that the case of B.
Seshaiah (A-10) is an extremely hard case, who is now aged
about 87 years and is suffering from Parkinson's disease
H
856 SUPREME COURT REPORTS [2008] 6 S.C.R.
A Hypertension, Diabetes with severe Calcific AV Stenosis, Mild 1-
AR, Moderate MR and Anemia of some degree. This apart, A-
10 has already undergone jail suffering for about three years
and, therefore, taking all these factors into consideration, his
sentence may be reduced to the period already undergone by
8 him. We are afraid to accept this submission of the learned
counsel, because A-10 has been held guilty for being a member "I
of unlawful assembly and sharing common intention with A-1,
A-2, A-10, A-11 and A-12 to commit the murder of deceased
No.2.
c 36. Having given our careful consideration to the
submissions made by the learned counsel for the parties and in
the light of the evidence discussed hereinabove and tested in
the light of the principles of law highlighted above, it must be
held that the evaluation of the findings recorded by the High
D Court do not suffer from any manifest error and mis-appreciation
of evidence on record. Hence, we agree with the finding of the
High Court that the A-1, ~2. A-10, A-11 and A-12 are the real +
culprits and their conviction and sentences for the offences
punishable under Section 302 read with Section 149, Section
E 302 and Section 449 of fhe IPC are wholly sustainable and
justifiable.
37. In the result, there is no merit in this appeal and it is,
accordingly, dismissed.
F 38. 8. Seshaiah (A-10) is on bail pursuant to the order of
this Court passed on 30.10.2006. His bail bonds are cancelled
and surety is discharged. He is directed to surrender before
the trial court within one month from the date of this order. The
learned trial court shall remand him to jail for serving out the
remainder part of the sentences. On failure of 8. Seshaiah to
G
appear before the trial court within the stipulated period, the
learned trial court shall take appropriate steps against A-10 in
accordance with law.
D.G. Appeal dismissed
H
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