Holding

The evidence of PW‑3 and PW‑4 was unreliable and could not be relied upon, so the conviction under Sections 302 and 307 IPC was set aside and the appellant acquitted.

Summary

The appellant Gajula Surya Prakasa Rao was convicted under Sections 302 and 307 IPC for murdering a farmer and attempting to kill his wife, based primarily on the testimony of the deceased’s wife (PW‑3) and daughter (PW‑4). The Supreme Court examined the credibility of these eye‑witnesses, noting that their statements changed over time, contained material contradictions, and failed to identify the appellant despite knowing him. PW‑3’s earlier statement recorded as a “dying declaration” was held inadmissible under Section 32 of the Evidence Act and could only be used, if at all, under Section 157 for corroboration, which it did not achieve. The Court also found PW‑4’s evidence vague and unreliable, with no other admissible evidence linking the appellant to the crime. Consequently, the Court concluded that the lower courts had overlooked critical inconsistencies, resulting in a miscarriage of justice, and set aside the conviction, acquitting the appellant. The appeal was allowed and the appellant was ordered to be released.

Issues considered

Whether the conviction under Sections 302 and 307 IPC can be sustained on the basis of the testimony of PW‑3 and PW‑4 despite inconsistencies and improvements in their statements.
Whether PW‑3’s statement recorded under Section 164 CrPC qualifies as a dying declaration under Section 32 of the Evidence Act or merely as a former statement admissible under Section 157.
Whether the lower courts failed to critically evaluate the credibility of the eye‑witnesses, thereby causing a miscarriage of justice warranting interference under Article 136 of the Constitution.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 164
Indian Evidence Act, 1872s. 155, s. 157, s. 162, s. 32
Indian Penal Code, 1860s. 302, s. 307, s. 34

Subjects

murderattempt to murdereyewitness testimonycredibility of witnessesdying declarationSection 32 Evidence ActSection 157 Evidence Actmiscarriage of justiceArticle 136acquittal

Judgment

[2009] 15 (ADDL.) S.C.R. 789

GAJULA SURYA PRAKASARAO
A
v.
STATE OF ANDHRA PRADESH
(Criminal Appeal No. 1038 of 2008)
NOVEMBER 10, 2009
[B. SUDERSHAN REDDY AND J.M. PANCHAL, JJ.] , B
Pena{Code,, 1860- ss. 302 and 307 - Murder and attempt
to commit murder·.::.· Aocused attacked deceased with sharp
edged weapon resulting in his death - Also attempted to kill
deceased's wife by inflicting severe injuries - Conviction and C
sentence ulss. 302 and 307 by courts below on basis of the
evidence of eye-witnesses-wife and daughter of deceased- On
appeal, held: Evidence of deceased's wife completely at
variance with what she stated earlier - Evidence of daughter
also vague - Witnesses made improvements in their
statements stage to stage - Material contradictions in their D
statement not considered - No other acceptable evidence
available based on which accused could be held guilty- Thus,
order of conviction set aside.
The question which arose for consideration in this
appeal is whether the courts below were justified in E
convicting and sentencing the appellant-accused ulss.
302 and 307 IPC on basis of the evidence of the eye-
witnesses.
Allowing th~ appeal, the Court
"' HELD.: 1. In the instant case, there was no critical F
evaluation of the evidence of PWs-3 and 4, and there was
no consideration of material contradictions having crucial
bearing on the veracity of the version given by PWs-3 and
4. They went on making improvements from stage to
stage which makes their evidence doubtful. It is under G
those circumstances, the concurrent findings of the
courts below is interfered with, in order to prevent the
.. miscarriage of justice. The appellant is acquitted of the
charges u/ss. 302 and 307 IPC. The conviction and
sentences awarded against the appellant are set aside.
789 H
790 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A [Paras 17 and 18) [799-D-G]
2.1. The deceased was a farmer and cultivating the ~
· lands belonging to SR which was adjacent to the land of
the appellant. The appellant was upset and developed a
, grudge against the deceased over a property issue and
s in the process committed the crime on the intervening··
night of 7th/8th April, 2002 at 2.00 AM. This is the motive
suggested by the prosecution for the appellant
committing the crime. The prosecution story itself shows
that PW-3 and PW-4 very well knew the appellant and also ....
C about the dispute with -r~gard to the purchase of the land.
Yet this aspect is not stated by either of them and more
particularly by PW-3 at any stage prior to her evidence in
the court. [Para 8) [794-G-H; 795-8-D]
2.2. The FIR was lodged by one PW-1 who is none
other than a close relation .of the deceased at about 4.00
D a.m. on 8th April, 2002. According to the FIR, two unknown
persons entered into the hou$e and committed the crime.
In his evidence he merely stated that he was informed by
the villagers that the deceased was murdered, based on
which he gave written report to the police and the police
E reached at the scene of occurrence within half an hour and
shifted the wife of the deceased to the hospital. It is in his
evidence that he gave report to the police at the house of
the deceased. He did not draft the FIR and he does noi.
remember as to who drafted the same. In his cross-
examination it is stated by him that PW-3 was sent by him "'
F to the hospital prior to the arrival of the police. [Para 9) [795-
D-H]
2.3. It is evident that PW-3-wife of the deceased, was
conscious and coherent to make her statement and rr.ade
her statement in Exhibit P-21 in which not only she ti id not
G mention the narJ1e of the appellant but positively ~cated that
she was attacked by an unknown person aged about 20
·years. Appellant even at the relevant time was of 50 years
and was well known to PW-3. She did not explain as to and
under what circumstances she made the statement in
H Exhibit P-21 nor there is any explanation as to how she
GAJULA SURYA PRAKASARAO v. STATE OF 791
ANDHRA PRADESH
omitted the name of the appellant and described A
somebody else to be the assailant. On the other hand, she
went fo the extent- of stating that she did not know whether
the Magistrate had recorded her statement in the house
or in the hospital. [Para 12] [796-F-H; 797-A]
2.4. When a person who has made a statement, may B
be in expectation of death, is not dead, it is not a dying
declaration and is not admissible u/s. 32 of the Evidence
Act. In the instant case, the maker of the statement Exhibit
P-21, is not only alive but is examined as PW-3. Therefore,
her statement is not admissible u/s. 32; but her statement,
however, is admissible u/s. 157 of the Evidence Act as C
former statement made by her in order to corroborate her
testimony in court. The exhibit.does not corroborate the
testimony of PW-3 in Court. It is obvious that PW-3 later
on improved the story and roped in the appellant. The
sta~ement of PW-3 in Exhibit P-21 can be used for o
corroborating the testimony of PW-3. The evidence of PW-
3 is completely at variance with what has been stated by
her in Exhibit P-21. This vital aspect of the matter has
completely escaped the attention of the courts below
which resulted in miscarriage of justice. Enmity between E
her husband (deceased) and the appellant may be one
possible reason for her to implicate the appellant in the
case after deliberations. [Paras 13 and 14] [797-A-C; 798-
A-B]
Ramprasad vs. State of Maharashtra ( 1999) 5 SCC 30,
referred to. F
2.5. According to PW-4, daughter of the deceased, the
incident took place at about 2.00 A.M. in the night when the
appellant hacked her mother and father. She stated that
on her raising hue and cry one KT and others came to the
spot. She did not reveal the name of the appellant to the G
neighbours when they came to the house on her raising
hue and cry. KT who is examined as PW-7 stated in his 1
evidence that PW-4 informed him that her father and
mother were beaten by somebody. The evidence on
record suggests that even PW-4 has also acquaintance
with the appellant but she did not mention the name of the H
792 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A appellant at any point of time prior to her evidence· in the
court. Her evidence is also vague based on which it would
be difficult to record any finding of commission of any
crime by the appellant. There is no other acceptable
evidence available on record based on which the appellant
could be held guilty. [Para 15] (798-A-B]
8
2.6. Normally this Court would not substitute its
opinion by re-appreciating the evidence with that of
concurrent findings of the two courts below. But in the
instant case, having considered the findings of.the courts
below, it is held that the courts below found the appellant
C guilty on the basis of evidence of PWs ..3 and 4 upon which
no reliance could be placed. The facts, based on which the
coclusion is arrived at that the evidence of PWs-3 and 4
should not be relied upon are very much available on.
record which were altogether ignored by the courts below.
o The same has resulted in miscarriage of justice. [Para 1.6] .
(798-F-H; 799-A]
Zafar vs. State of U.P. (2003) 3 SCC 51, referred to. :
Case Law Reference :
(1999) 5 SCC 30 Referred to. ~ Para 13
·E (2003) 3 SCC 51 Referred to. . Para 16
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1038 of 2008.
From the Judgment & Order dated 20.08.2007 of.the High
-·Court of Judicature, Andhra Pradesh at Hyderabad in Criminal ,,,
F Appeal No. 929 of 2005. . .. .,
M.N. Rao, A. Ramesh, G .. Madhavi, Promila, fp.r.t_he
Appellant . ...
D. Bharathi Reddy, for the Respondents.
The Judgment of the Court vyas delivered by
G B. SUDERSHAN REDDY, J. 1. This appeal b;· special
leave is directed against the Judgment rendered by·a-Oivision
Bench of the Andhra Pradesh High Court confirming ·the ,.
conviction of the appellant for' the offences' punishable under
Sections 302 and 307 of Indian Penal Code, 1860 (in short
H "IPC"). The High Court by the impugned judgment confirmed the
GAJULA SURYA PRAKASARAO v. STATE OF 793
ANDHRA PRADESH [B. SUDERSHAN REDDY, J.]
~ . ; ..
..1 judgment pa~sed by the Principal Sessions Judge, Eluru A
COf1Victing_the appellant under Sections 302 and 307 of IPC and
sentencing him tp suffer imprisonment for life and rigorous
imprisonment for seven years, respectively, and further to pay a
fine of Rs. 1,,000/- each and in default, to suffer simple
impi·isonrnept fc;>r a period of six months each. B
·, .2.·ln·the nutshell, the pro.secution version which led to the
trial,. of the appeUant is. as under: ·
: 3J_On the intervening night of 7th/.8th April, 2002 appellant
went to ·the.house of the deceased in Venkatayapalem village
with an intention to end the life of the deceased and knocked at c
the door of. the deceased which was opened by the wife of the
deceased, Cherukuri Srinukumari (PW-3) and the appellant-
accused all of a sudden hacked and attempted to kill her by
inflicting severe injuries on.her body, as a result of which she fell
down and then he rushed towards the deceased who was
sleeping and hacked him by inflicting severe injuries. The D
~ appellant after committing the offence escaped from the place
of occurrence by bolting the door from outside. The daughter of
the deceased Sri Surekha (PW-4) aged about 9 years raised
hue and cry upon which the neighbours opened the door from
outside arid'informed Cherukuri Gangaraju (PW1) who is a close E
relatlorrofthe deceased who thereafter informed Gopalapuram
Police Station and lodged first information report at about 4.00
a.m. on 8th Aprii,2002. A case was registered as Crime No. 30
... of 20b2 under.Sections 302 and 307 read with Section 34 IPC
against unknq~p,persons.. . .
. 4,. The prosecution, in order to establish its case, examined F
altog~ther 14 witnesses. The trial court upon appreciation of the
evidence; fo~nd' the appellant guiity of .the offences punishable
unde(Sections- 302 and 3.07 IPC an·d sentenced him to suffer
impri~onme~f fqr iife a·nd rigorous imprisonment for a period of
seven years, respectively'. The trial. COLI.rt mainly relied upon the G
11 evid~nce <;>f PW-3 and PW-4. The High Court vide its judgment
dated 20th August, 2007 dismissed the criminal appeal filed by
the appellant and accord_ihgly confirmed the judgment of thetrial
court. The Hig.h Court'to.o relied upon th~ evidence of PW-3 and
PW-4.··so~h courts beiow found that the appellant attacked the H
794 SUPREME COURT REPORTS [2009] 15 (ADDL.) s.c:R.

A deceased with sharp edged weapon resulting in h·is death. The
courts below also found the appellant-accused attempted to kill ~
PW-3 by inflicting severe injuries on her body.
5. In this appeal, Shri M.N. Rao, learned senior counsel for
the appellant, submitted that the evidence of the eye witnesses
B does not inspire any confidence as PW-3 made a lot of
improvements in her version and implicated the appellant for th~ t'
first time only while deposing before the Court and never before
during the investigation or in the first information report. The
injured witness (PW-3) and her minor daughter (PW-4) never
mentioned the name of the appellant while narrating the incident
..
c to their neighbours, police or the Magistrate though the appellant
was very well known to them. It was submitted that Section 161 ·
of Code of Criminal Procedure statement (08.04.2002) of PW-
3 was clearly ante-timed. The evidence of prime witness PW-3
is totally unreliable and could not be believed under any
D circumstances as in her cross-examination she went to the extent
of denying having given any statement (Ex. P-21) to the
Magistrate (CW-1 );
6. In response, Ms. D. Bharathi Reddy, learned counsel for
the State submitted that the evidence of eye witnesses is clear
E and cogent. The relationship of the witnesses with the deceased
itself cannot be a ground to discard their evidence. Learned
counsel submitted that what is relevant is the evidence of Pw:..3
and PW-4 in the court and not their statement under Section 161
Cr.P.C.
7. We shall first deal with the contention regarding the ,.
F nature of evidence of PW-3 and PW-4 to consider as to whether
their evidence has been rightly accepted by the courts below. In
the process, we will not re-appreciate the evidence to substitute
our view for that of the courts below but consider as to whether
non-consideration of certain important aspects of the case
G resulted in miscarriage of justice.
8. It is an admitted fact that the deceased was a farmer and
cultivating the lands belonging to one Satyam Ramachandra •t It
Laxmi Devi of Rytapuram which land was adjacent to the Ian~ of
the appellant. The owner of the said land decided to dispose of
H her land admeasuring 01 acre and 54 cents and the deceased
GAJULA SURYA PRAKASARAO v. STATE OF 795
ANDHRA PRADESH [B. SUDERSHAN REDDY, J.]
was willing to purchase the land at the rate of Rs.90,000/- per A
.j acre which price was much higher than the price offered by the
appellant who also wanted to purchase the said land. The
appellant is stated to have approached the deceased and
demanded to cancel the agreement so that he would purchase
the land at a lesser price than which was offered by the
deceased. The deceased despite the threats proceeded further B
and informed the landlady that he was ready with the balance
sale consideration and required her to execute a registered sale
~ deed on 2.4.2002. The appellant was upset and developed a
grudge against the deceased and in the process committed the.
crime on the intervening night of 7th/8th April, 2002. This is the C
motive suggested by the prosecution for the appellant committing
the crime. The prosecution story itself shows that PW-3 and PW-
4 very well knew the appellant and also about the dispute with
regard to the purchase of the land. Yet this aspect is not stated
by either of them and more particularly by PW-3 at any stage D
prior to her evidence in the court.
'
9. Be it noted that the first information report was lodged by
" one Cherukuri Gangaraju (PW-1) who is none other than a close
relation of the deceased at about 4.00 a.m. on 8th April, 2002 in
which he clearly stated that on the intervening night of 7th/8th April,
2002 at 2.00 AM. "some unknown persons knocked the door E
of the house, his wife Srinukumari opened the door, two persons
entered into the house of Cherukuri Gangaraju, hacked him with
knife on his neck and also hacked Srinukumari on her face and
"'hands". That according to the first information report two
unknown persons entered into the house and committed the F
crime. In his evidence he merely stated that he was informed by
the villagers that the deceased was murdered, based on which
he gave written report to the police and the police reached at
the scene of occurrence within half an hour and shifted the wife
of the deceased to the hospital. It is in his evidence that he gave G
report to the police at the house of the deceased. He did not draft
• the first information report and he does not remember as to who
drafted the same. In his cross-examination it is stated by him that
PW-3 was sent by him to the hospital prior to the arrival of the
police.
H
796 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 10. Be that as it may, the crucial evidence is that of PW-3. ~
.
There is some discrepancy in the evidence as to who sent PW-
3 to the hospital. But the fact remains that on 9.4.2002 at about
11.25 a.m. her statement was recorded by the Judicial First
Class Magistrate (Ex.P21). The Magistrate having received the
information at about 11.00 A.M. reached the hospital and
B recorded the statement as 'dying declaration'. PW-3 in her
statement stated that one person came to her house and
suddenly beat on her head at about 10 P.M. in the night. She did
not identify the person but stated that he was a young man
wearing stripes shirt. She did not state anything about the attack
c on the deceased.
11. CW-2 is Dr. G. Bhaskararao who stated in his evidence
that PW-3 was sent for treatment of injuries by Gopalapuram
Police Station. As her condition was serious, he immediately_
sent intimation to JFCM (CW-1) who came and recorded her
D statement. The doctor (CW-2) was present when CW-1 recorded
her statement. He certified that the patient was conscious and ...
coherent to give her statement. The Magistrate at the foot of her '
;l

statement (Ex. P 21) certified that the declaration recorded by
him was read over and she admitted it to be correct and
complete. It is specifically observed that she has been
E conscious, coherent and in a fit state of mind to depose all
throughout. He appeared as CW-1 and stated that he recorded ·
the statement of PW-3 under Exhibit P-21. It has not been
suggested to him that PW,-3 was not in a fit an·d coherent ,..
condition at the time of recording her statement.
F 12. It is plainly evident that PW-3 was conscious and
coherent to make her statement and made her statement in
· Exhibit P-21 in whi ;h not only she did not mention the name of
the appellant but positively stated that she was attacked by an
unknown person aged about 20 years. Be it noted that the
appellant even at the relevant time was of 50 years and was well
G
known to PW-3. She did not explain as to and under what II
circumstances she made the statement in Exhibit P-21 nor there
is any explanation as to how she omitted the name of the
appellant and described somebody else to be the assailant. On
the other hand, she went to the extent of stating that she did not
H
GAJULA SURYA PRAKASARAO v. STATE OF 797
ANDHRA PRADESH [B. SUDERSHAN REDDY, J.]
~
~ ... - know whether the Magistrate had recorded her statement in the A
house or in the hospital.
13. It is well settled and needs no restatement at our hands
m(
that when a person who has made a statement, may be in
expectation of death, is not dead, it is not a dying declaration
and is not admissible under Section 32 of the Evidence Act. In B
the instant case, the maker of the statement Exhibit P-21, is not
~
only alive but is examined as PW-3. Her statement, therefore, is
~
not admissible under Section 32; but her statement, however,
is admissible under Section 157 of the Evidence Act as former
statement made by her in order to corroborate her testimony in
court. In the instant case Exhibit P-21 does not corroborate the c
testimony of PW-3 in Court. It is obvious that PW-3 later on
improved the story and roped in the appellant. In Ramprasad vs.
State of Maharashtra 1 this Court held:
"As long as the maker of the statement is alive it would
remain only in the realm of a statement recorded during D
investigation. Be that as it may, the question is whether the
Court could treat it as an item of evidence for any purpose.
Section 157 of the Evidence Act permits proof of any former
statement made by a witness relating to the same fact
before "any authority legally comp~tent to investigate the E
fact" but its use is limited to corroboration of the testimony
of such a witness. Though a police officer is legally
competent to investigate, any statement made to him during
..., such an investigation cannot be t.1sed to corroborate the
..., testimony of a witness because of the clear interdict:·
contained in Section 162 of the Code. But a statement F
-( made to a Maglstrr;ite is not affected by the prohibition
..... contained In the said section. A Magistra~e can recqrd the
statement of a person as provided in $ection 164 of the
Code and such a statement would either be elevated to the
status of Section 32 if the maker of the stat.ement Cl
subsequently dies or it would remain within tl'le realm of wtiat

•
~

it was origini311y. A statement recorded by a MagistrE'te
under Section 164 becomes usable to corroborate the·
witness as provided in Section 157 of the Evidence Act or .
1. (1999) 5 SSC 30 · l.
H
798 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A to contradict him as provided in Section 155 thereof."
14. Considered in the light of the law declared by this Court •
the statement of PW-3 in Exhibit P-21 can be used for
corroborating the testimony of PW-3. The evidence of PW-3 is
completely at variance with what has been stated by her in Exhibit
B P-21. This vital aspect of the matter has completely escaped the
attention of the courts below which resulted in miscarriage of
justice. Enmity between her husband (deceased) and the
appellant may be one possible reason for her to implicate the
appellant in the case after deliberations.
15. What remains for our consideration is the statement of·
c PW-4 who is none other than the daughter of the deceased. The
incident according to her took place at about 2.00 AM. in the
night when the appellant hdcked her mother and father. She·
stated that on her raising hue and cry one Kanniah Tata and
others came to the spot. She did not reveal the name of the
D appellanf to the neighbours when they came to the house on her
raising hue and cry. Kanniah Tata who is examined as PW-7
stated in his evidence that PW-4 informed him that her father and
mother were beaten by somebody. The evidence on record
suggests that even PW-4 has also acquaintance with the
E appellant but she did not mention the name of the appellant at
any point of time prior fo her evidence in the court. Her evidence
is also vague based on which it would be difficult to record any
finding of commission of any crime by the appellant. There is no
other acceptable evidence available on record based on which ,..
the appellant could be held guilty.
F 16~ We are conscious that normally this Court would not
substitute its opinion by re-appreciating the evidence with that
of concurrent findings of the two courts below. But in the present
case, having considered the findings of the courts below, we hold
that the courts below found the appellant guilty on the basis of
G evidence of PWs-3 and 4 upon which no reliance could be
placed for the reasons stated herein above. The facts, based
on which we have arrived at the conclusion not to rely upon the
,
evidence of PWs-3 and 4, are very much available on record
which were altogether ignored by the courts below. The same
has resulted in miscarriage of justice. This Court in Zafar vs.
H
~
(

GAJULA SURYA PRAKASARAO v. STATE OF 799
ANDHRA PRADESH [B. SUDERSHAN REDDY, J.]
State of U.P. 2 while considering the scope of interference in A
... .J
exercise of its jurisdiction under Article 136 of the Constitution
observed:
"Though it is a case of concurrent finding by both the courts
resting on the appreciation of evidence, we are of the view
that the trial court and the High Court overlooked certain B
important aspects in the practical application of the rule of
prudence and caution which the High Court itself proceeded
to apply in appreciating the evidence of the child witness.
The High Court failed to take note of certain telling factors
emerging from the evidence on record. There was no critical
appraisal of the evidence of PW 2 except focusing attention c
on two i;illeged contradictions of no significance and
repelling the arguments based on them. Even if the finding
that the medical evidence does not go counter to the
prosecution case is allowed to remain, there are other fatal
infirmities in the evidence relied upon by the prosecution D
which were not adverted to by the High Court. In these
. circumstances, we are of the view that it is a fit case for

- interference under Article 136."
17. In the present case there was no critical evaluation of
the evidence of PWs-3 and 4, and there waa no consideration E
of material contradictions having crucial bearing on the veracity
of the version given by PWs-3 and 4. They went on making
improvements from stage to stage which makes their evidence
doubtful. It is under those circumstances, we are compelled to
..., interfere with the concurrent findings of the courts below in order
to prevent the miscarriage of justice.
1

F
18. For the aforesaid reasons, the impugned judgment is
set aside. The appellant is acquitted of the charges under
Sections 302 and 307 IPC. The conviction and sentences
awarded against the appellant are set aside. The appellant is
directed to be released forthwith. The bail bonds earlier executed G
by him and the sureties, if any, shall stand discharged.
)I 19. The appeal ie, accordingly, allowed.
N.J. Appeal allowed.

2. (2003) 3 sec 51 H