THOTI MANOHARversusSTATE OF ANDHRA PRADESH

                      [2012) 5 S.C.R. 1129


                       THOTIMANOHAR                                  A
                                v.
               STATE OF ANDHRA PRADESH
             (Criminal Appeal No. 1739 of 2007)
                         MAY 15, 2012
                                                                     B
      [DR. B. 5. CHAUHAN AND DIPAK MISRA, JJ.]

     PENAL CODE, 1860:

     ss. 302, 302134, 324, 326 and 452 - Murder - Common             c
intention - Two brothers and their cousin convicted by trial
court - Cousin acquitted by High Court of the charge uls 3021
34 - Appeal by one of the convicts - Held: The material
evidence clearly shows that the appellant along with his
brother had the previous day threatened the deceased with            0
dire consequences and had inimical relationship with the
deceased and his family - On the day of occurrence both
armed with deadly weapons went to the house of deceased
and dragged him - Though the appellant did not give the blow,
but his participation from the beginning till the end would          E
clearly show that he shared the common intention with his
brother - He had assaulted the other witnesses who tried to
intervene - High Court rightly upheld his conviction.

     EVIDENCE:
                                                                     F
       Evidence of related witnesses - Held: All that is
necessary is that the evidence of interested witnesses should
be subjected to careful scrutiny and accepted with caution - If
on such scrutiny, their testimony is found to be intrinsically
reliable or inherently probable, it may, by itself, be sufficient,   G
in the circumstances of the particular case, to base a
conviction thereon - Jn the instant case, the occurrence in part
took place inside the house and the rest of it slightly outside
the premises of the deceased - Under these circumstances,
                              1129                                   H
    1130    SUPREME COURT REPORTS                [2012] 5 S.C.R.


A the family members and the close relatives are bound to be
    the natural witnesses - They intervened and sustained injuries
    - They are the most natural witnesses and there is nothing on
    record to doubt their presence at the place of occurrence.

B      Oral evidence - Discrepancies in - Held: The
  discrepancies pointed out are minor is nature - Giving undue
  importance to them would amount to adopting a hyper-
  technical approach - The court, while appreciating the
  evidence, should not attach much significance to minor
C discrepancies, which do not shake the basic version of the
  prosecution case, and, as such, are to be ignored - As regard
  non-explanation of injuries of the ac9used, the same were
  superficial in nature - Besides, non-explaining of injuries of
  the accused persons is a/ways not fatal to the case of the
  prosecution.
D
       The appellant (A-2) along with his real brother (A-1)
  and a distant cousin (A-3), was prosecuted for causing
  death of one 'KM' the father of PW-1 and causing injuries
  to him and other members of his family. The prosecution
E case was that A-1 had developed illicit relationship with
  the cousin sister of the 'KM' and because of this, she was
  sent to Bangalore. This enraged A-1 and he started
  picking up quarrels with 'KM' and his family. On 24.9.2009,
  A-1 and A-2 drove their cows into the crop of 'KM'. When
F PW-1 tethered the said cows in his house, A-1 and A-2
  went there assaulted his family members, threatened
  them with dire consequences and took away the cattle.
  'KM' and PW-1 approached the elders of the village
  including PWs 7 and 12, who secured the presence of A-
G 1 and A-2 and told the parties that there would be a
  mediation on 26.9.2002. However, at about 11.00 a.m. on
  25.9.2002, the three accused armed with deadly weapons
  entered the house of 'KM'; A-1 and A-2 dragged 'KM' and
  PW1 out of the house; A-1 assaulted 'KM' with iron rod,
  who became unconscious and fell down. When PW-6, the
H
THOTI MANOHAR v. STATE OF ANDHRA PRADESH 1131

younger brother of 'KM' intervened, A-2 struck him with       A
billhook and A-3 also was stated to have assaulted him
with iron rod. When PWs 2, 3, 4 and 5 intervened, they
were also assaulted by the accused persons. All the
injured were taken to the hospital where 'KM' was
declared dead. The trial court convicted A-1 u/s 302 IPC      B
and A-2 and A-3 u/s 302/34 IPC. All the accused were also
convicted u/ss 452 and 324 IPC. A-2 was further
convicted u/s 326 IPC. On appeal, the High Court
interfered only to the extent that it acquitted A-3 of the
offence punishable u/s 302/34 IPC.
                                                              c
    Dismissing the appeal, the Court

    HELD:
      1.1 PW-1 has testified that on 24.9.2002, A-1 and A-2
                                                              0
had led their cows to graze in the sugarcane field of the
deceased; he drove the cows to his house and tied them;
A-1 and A-2 came and assaulted the deceased and him
and threatened them with dire consequences before
taking the cows back. He also stated regarding the
                                                              E
decision to resolve the controversy by convening a
Panchayat on 26.9.2002. The said version of PW-1 has
received corroboration from PWs-2 to 6 and 10. Nothing
has really been brought out to create a slightest doubt
on that aspect. With this part of the occurrence, it is
appropriate to connect the real genesis of the animosity,     F
i.e., cousin sister of the deceased with whom A-1 had an
illicit relationship and she was sent to Bangalore. P.W.1
as well as PWs-3, 4, 5 and 10, have categorically deposed
about this aspect. In the cross-examination at the
instance of A-1 and A-2 there was not even a proper           G
suggestion to PW-1 in that regard. Thus, the genesis for
the cavil and the subsequent disputes have been
established beyond any reasonable doubt. [para 18]
[1143-F-H; 1144-A-F]
                                                              H
    1132    SUPREME COURT REPORTS             [2012] 5 S.C.R.

A      1.2 As regards the incident on 25.9.2002, it is in the
  evidence of PW-1 that at about 11.00 a.m., A-1 and A-2,
  armed with weapons, came to his house and dragged the
  deceased; A-1 assaulted the deceased with an iron rod
  on his head, neck and all parts of the body. He has
8 admitted that A-3 was a distant cousin and no role has
  been ascribed to him in the previous occurrence. It is also
  in his testimony that A-3 had not gone near the deceased.
  PW-2, another eye witness to the occurrence, has testified
  that A-1 had assaulted the deceased with the iron rod on
C the head, chest and other parts of his body. She also has
  not ascribed any role to A-3. PW-3, the wife of the
  deceased, has categorically deposed that A-1 had
  assaulted her husband. She has graphically stated the
  active role played by A-2. PW-4, who is another injured
  witness, has deposed about the assault by A-1 and the
D beatings by A-2 to other injured persons who intervened.
  Similar is the evidence of other injured eye witnesses.
  Additionally, the oral testimony has received
  corroboration from the medical evidence in material
  particulars. [para 19-22] [1144-F-H; 1145-A-C]
E
       1.3 With regard to the injuries sustained by the
  accused having not been explained, it is worth noting that
  the injuries are superficial in nature, the accused were not
  sent for medical examination and further there is no
F suggestion whatsoever as regards the injuries sustained
  by them to any of the witnesses. The story built up as
  regards the fight between the two groups does not
  remotely appeal to common sense and, more so, in the
  absence of any evidence. Besides, non-explaining of
G injuries of the accused persons is always not fatal to the
  case of the prosecution. [para 23] [1145-D-G]

        Sri Ram v. State of M.P. 2003 (6) Suppl. SCR 129 =
    2004 (9) sec 292 - relied on

H       1.4 So far as the plea that all the witnesses, being
 THOTI MANOHAR v. STATE OF AN DH RA PRADESH 1133


relatives, are interested witnesses is concerned, it is         A
significant to note that the occurrence in part took place
inside the house and the rest of it slightly outside the
premises of the deceased. Under these circumstances,
the family members and the close relatives are bound to
be the natural witnesses. They intervened and sustained         B
injuries. Their sustaining of injuries has got support from
the ocular evidence as well as the medical evidence.
Ordinarily, a close relative would be the last to screen the
real culprit and falsely implicate an innocent person. All
that is necessary is that the evidence of interested            c
witnesses should be subjected to careful scrutiny and
accepted with caution. If on such scrutiny, their testimony
is found to be intrinsically reliable or inherently probable,
it may, by itself, be sufficient, in the circumstances of the
particular case, to base a conviction thereon. The
                                                                0
evidence of the injured witnesses who are close relatives
to the deceased have really not embellished or
exaggerated the case of the prosecution. They are the
most natural witnesses and there is nothing on record to
doubt their presence at the place of occurrence. By no
                                                                E
stretch of imagination, it can be stated that the presence
of the said witnesses at the scene of the crime and at the
time of occurrence was improbable. Their version is
consistent and nothing has been suggested to bring any
kind of inherent improbabilities in their testimonies. [para
24,26 and 29) [1146-C-D; 1147-E-G; 1148-F-G]                    F

    Dalip Singh v. State of Punjab 1954 SCR 145; and
                                       =
Masalti v. State of UP. 1964 SCR 133 1965 AIR 202; Hari
Obu/a Reddi and others v. The State of Andhra Pradesh 1981
AIR 82; Kartik Malhar v. State of Bihar 1995 (5) Suppl. SCR     G
239 = 1996 (1) SCC 614; and Pu/icher/a Nagaraju alias
Nagaraja Reddy v. State of Andhra Pradesh 2006 (4) Suppl.
SCR 633 = 2006 AIR 3010 - relied on

    1.5 As regards the discrepancies pertaining to time,
                                                                H
   1134    SUPREME COURT REPORTS            [2012] 5 S.C.R.


A situation of the land, number of persons, etc., they are
  absolutely minor in nature. Giving undue importance to
  them would amount to adopting a hyper-technical
  approach. The court, while appreciating the evidence,
  should not attach much significance to minor
B discrepancies, which do not shake the basic version of
  the prosecution case, and, as such, are to be ignored.
  [para 30] (1149-B-C]

        State of UP. v. M.K. Anthony 1985 AIR 48 ; Appabhai
C and another v. State of Gujarat 1988 AIR 696; Rammi alias
  Rameshwar v. State of Madhya Pradesh 1999 (3) Suppl.
  SCR 1=1999 AIR 3544; State of H.P. v. Lekh Raj and another
  1999 (4) Suppl. SCR 286 = 2000 (1) SCC 247; Lax man
  Singh v. Poonam Singh 2003 (3) Suppl. SCR 528= 2004 (10)
  SCC 94; Dashrath Singh v. State of U. P. 2004 (3) Suppl.
D SCR 561 = 2004 (7) SCC 408; State of Punjab v. Jagir Singh
  Baljit Singh and Karam Singh 1974 (1) SCR 328 =1973 AIR
   2407 - relied on

      1.6 With regard to the plea that the appellant has
E been erroneously convicted with the aid of s.34 of the
  IPC, the High Court has noticed that A-1 and A-2 are real
  brothers and they have definite roles as regards the
  previous incident; and A-2 was intervened by the
  witnesses from assaulting the deceased. The material
F evidence on record clearly shows that A-1 and A-2 had
  threatened the deceased with dire consequences. The
  appellant had an inimical relationship with the deceased
  and his family as the previous occurrences would show.
  Despite a consensus being arrived at that there would be
G a panchayat on 26.9.2002, they, armed with deadly
  weapons, went to the house of the deceased and
  dragged him. The previous meeting of minds with pre-
  arranged plan or prior concert as has been held in
  number of authorities is difficult to establish by way of
  direct evidence. They are to be inferred from the conduct
H
THOTI MANOHAR v. STATE OF ANDHRA PRADESH 1135


and circumstances. As is evincible, the weapons the two        A
accuse two accused carried were lethal in nature. The
deceased was absolutely helpless and not armed with
any weapon. True it is that A-2 did not give the blow, but
his participation from the beginning till the end would
clearly reveal that he shared the common intention with        B
his brother. He had assaulted the other witnesses who
had tried to intervene. Thus, though he might not have
inflicted the injury, yet it can safely be concluded that he
shared the common intention making him jointly liable.
[para 32 and 37] [1150-D-E, F-H; 1152-E-H; 1153-A-C]           c
    Ram Taha/ and others v. The State of U.P. 1972 (2) SCR
423=1972 AIR 254 ; Rajesh Govind Jagesha v. State of
Maharashtra 1999 (4) Suppl. SCR 277 = 2000 AIR 160 ;
Bishna alias Bhiswadeb Mahato and others v. State of West
Bengal 2005 (4) Suppl. SCR 892=2006 AIR 302; and Manik         D
Das and others v. State of Assam 2007 (7) SCR 863= 2007
AIR 2274 - relied on.
                    Case Law Reference:
    2003 (6) Suppl. SCR 129 relied on              para 23     E

    1954 SCR 145               relied on           para 24
    1964 SCR 133               relied on           para25
    1981 AIR 82                relied on           para 26     F
     1995 (5) Suppl. SCR 239relied on              para 27
    2006 (4) Suppl. SCR 633 relied on             para 28
    1985 AIR 48                relied on          para 30
                                                               G
    1988 AIR 696               relied on          para 30
    1999 (3) Suppl. SCR 1      relied on          para 30
    1999 (4) Suppl. SCR 286 relied on             para 30
                                                               H
    1136     SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A       2000 (1) sec 247             relied on             para 30
        2003 (3) Suppl. SCR 528 relied on                  para 30
        2004 (3) Suppl. SCR 561 relied on                  para 30
        1974 (1) SCR 328             relied on             para 30
B
        1972 (2) SCR 423             relied on             para 33
        1999 (4) Suppl. SCR 277 relied on                  para 34
        2005 (4) Suppl. SCR 892 relied on                  para 35
c       2007 (7) SCR 863             relied on             para 36

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1739 of 2007.

D       From the Judgment & Order dated 6.3.2007 of the High
    Court of Judicature, Andhra Pradesh at Hyderabad in Criminal
    Appeal No. 603 of 2005.

        Tara Chandra Sharma, Uma Datta for the Appellant.

E       D. Mahesh Babu, Suchitra H., for the Respondent.

        The Judgment of the Court was delivered by

       DIPAK MISRA, J. 1. The present appeal, by special leave
F under Article 136 of the Constitution of India, is directed against
  the judgment of conviction and order of sentence dated
  6.3.2007 passed by the High Court of Judicature, Andhra
  Pradesh at Hyderabad in Criminal Appeal No. 603 of 2005
  whereby the Division Bench of the High Court partly allowed
  the appeal by acquitting the accused No. 3 (A-3), namely, Thoti
G Sivaram, for the offence punishable under Section 302 read with
  Section 34 of the Indian Penal Code, 1860 (for short 'the IPC')
  but maintained the conviction and sentence in respect of other
  offences as had been imposed by the learned Sessions Judge,
  Chittoor in Sessions Case No. 108 of 2003. Be it noted, the
H accused No. 1 (A-1) was convicted for the offences punishable
THOTI MANOHAR v. STATE OF AN DH RA PRADESH 1137
             [DIPAK MISRA, J.]

under Sections 452, 302, 326 and 324 of the IPC, the accused         A
No ..2 (A-2) was found guilty of the offences under Sections 452,
302 read with 34, and 324 and 326 of the IPC, and the accused
No. 3 (A-3) was convicted under Sections 452, 302 read with
Section 34, and 324 of the IPC and, accordingly, sentenced to
rigorous imprisonment and fine which we shall state at a later       B
stage.

     2. The broad essential facts of the prosecution case are
that A-1 and A- 2 are real brothers and A-3 is their cousin. A-
1, Thoti Ekambaram, had developed illicit relationship with          C
Dhanamma, the cousin sister of the deceased, Kuppuswamy
Modali. The deceased, his brother Damodaran and other family
members had an apprehension that if Dhanamma continued
such kind of intimacy with A-1, she would not be in a position
to perform the marriage of her daughter. The said apprehension
compelled them to send Dhanamma and her daughter to                  D
Bangalore where Dhanamma lived with her son. This act of the
deceased and his family members stirred up anger in the heart
of A-1 and a sense of revenge rijled his thought. The accused
waited for the opportunity to pick up quarrels and triggered
altercations on every trivial issue with the deceased and his        E
family. The trivial cavil slowly gave rise to a major incident and
on one day, A-1 and others allowed their cattle into the
sugarcane fields of the deceased who wantonly grazed there
and spoiled the crops. As the factual matrix would undrape, on
24.9.2002 at about 3.00 p.m., A-1 and A-2 drove their cows           F
again for grazing the crop of the deceased. On seeing the
same, Sekhar, son of the deceased, brought those cattle to his
house and tied them. At about 4.00 p.m., A-1 and A-2 went to
the house of the deceased, picked up a quarrel, assaulted them
and took away their cattle. They also threatened them with dire      G
consequences. Being disturbed, Kuppuswamy Mudali
(deceased) and his son Sekhar (PW 1) approached the elders
of the village, namely, Gunasekhar and Amudalaputtur Kesava
Reddy (PWs-7 and 12) and others, for convening a panchayat
so that such unwarranted actions were not repeated. The said         H
    1138     SUPREME COURT REPORTS                [2012] 5 S.C.R.

A elders secured the presence of A-1 and A-2, the deceased and
  his son and told all of them that there would be a mediation on
  26.9.2002 and sincere efforts should be made to put the
  controversy to- rest.

        3. The case of the prosecution as further uncurtained is that
8
  on 25.9.2002, at about 11.00 a.m., when Sekhar, the deceased
  and Jayamma, wife of the deceased (PW-3), were in their
  house, A-1 and A-3 armed with iron rods and A-2 armed with
  billhook trespassed into the house of the deceased. A-1 and
  A-2 caught hold of him and his son and dragged them out of
C the house. A-1, Thoti Ekambaram, assaulted the deceased with
  iron rods on his head, neck and all over his body and caused
  injuries as a consequence of which he fell down and lost his
  consciousness. At that juncture, Arunachalam, PW-6, the
  younger brother of the deceased, intervened. Thoti Manohar,
D A-2, struck him with the billhook on his face as a result of which
  he sustained injuries. A-3 also assaulted him with iron rod on
  his chest. Rukminamma, PW-2, intervened and was assaulted
  by A-2. Jayamma, PW-3, was assaulted by A-1. Similarly,
  when Pargunam, PW-4, and Damodaran, PW-5, intervened,
E they were also beaten up by the accused persons. All the ·
  injured persons were taken to the Government hospital, Chittoor
  in a jeep for necessary treatment. In the hospital, Kuppuswamy
  Modali was declared dead. The other remaining injured were
  admitted in the hospital for treatment.
F
       4. The narration in continuum is that Sekhar, PW-1, lodged
  an FIR at Police Station, Gangadhara, Nellore and Crime No.
  70 of 2002 was registered under Sections 452, 302 and 324
  read with Section 34 of the IPC against the accused persons.
G After the criminal law was set in motion, on 29.9.2002, the
  Circle Inspector of Police, P.W. 20, arrested A-1 and A-2 who
  led the said police officer to the sugarcane fields from where
  the weapons used in the crime were recovered and seized in
  the presence of pan ch witnesses. On 3.10.2002, A-3 was
H arrested. The concerned Investigating Officer recorded the
THOTI MANOHAR v. STATE OF ANDHRA PRADESH1139
             [DIPAK MISRA, J.]

statements of the witnesses and, after completion of other              A
formalities, placed the charge-sheet before the concerned
Magistrate who committed the matter to the Court of Session.

     5. The accused pleaded not guilty and claimed to be tried.

      6. Be it noted, initially, the learned Additional District and    B
Sessions Judge (Fast Track Court, Chittoor) was in-charge of
the trial of the case but, thereafter, by direction of the High Court
in Criminal M.P. No. 6915/2003, the matter was transferred to
the Sessions Judge, Chittoor.
                                                                        c
    7. The prosecution, to establish the charges against the
accused persons, examined 20 witnesses, exhibited 23
documents, namely, Exh. P-1 to P-23 and got MOs-1 to 9
marked.

    8. The defence chose not to adduce any evidence.                    D
However, the contradictions and omissions found in the
evidence of some of the prosecution witnesses were marked
as Exh. D-1 to D-5.

     9. The learned Sessions Judge appreciated the evidence             E
of PW-1, Sekhar, the informant, PW-2, Rukmanamma, wife of
Arunachalam, PW-3, Jayamma, mother of PW-1, PW-4
Parganam, PW-5, Damodaran and PW-6, Arunachalam, the
injured eye witnesses who had supported the factum of assault
on the deceased as well as on them; relied on the testimony             F
of Gunasekhar, PW-7, S. Suri, PW- 8, and the then Circle
Inspector of Police, PW-20, who conducted the investigation
to accept the reliability of seizure of weapons in accordance
with Section 27 of the Evidence Act, and further placed reliance
on the evidence of PWs-10, 11, 12 and 14 which threw light              G
on the illicit relationship of Dhanamma and her being sent to
Bangalore which formed the genesis of bad blood and the
course adopted by the deceased and his relatives to approach
the elderly persons to convene a panchayat. The learned
Sessions Judge also relied on the testimony of PW-9, Dr. Sai
                                                                        H
    1140     SUPREME COURT REPORTS                  [2012] 5 S.C.R.

A Rani, who conducted the post mortem, PW-16, Dr. M.
  Krishnaveni, PW-17, Dr. Vijaya Gowri and PW-18, another
  medical officer, who examined the injured witnesses and gave
  certificates which were brought on record.

         10. We may note here that the other witnesses a re
8 basically formal witnesses. It is also apt to state that only
    Govinda Reddy, PW 15, did not support the case of the
    prosecution.

         11. Considering the evidence and the material brought on
c   record, the learned Sessions Judge came to hold that the
    prosecution had been able to establish the charge under
    Section 452 of the IPC against A-1 to A-3, prove the offence
    under Section 302 of the IPC against A-1 to the hilt and bring
    home the charge for the offence under Section 302 read with
D   Section 34 of the IPC against A-2 and A-3, and under Section
    326 of the IPC against A-2. That apart, the learned trial judge
    found that the offence under Section 324 of the IPC against A-
    1 to A-3 was proven and, accordingly, convicted them for the
    said offences. As far as the sentence is concerned, A-1 was
E   convicted to undergo life imprisonment for the offence under
    Section 302 of the IPC and to pay a fine of Rs.5000/-, in default,
    to undergo simple imprisonment for six months, rigorous
    imprisonment for two years under Section 452 of the IPC and
    to pay a fine of Rs.5,000/-, in default, to suffer simple
F   imprisonment for one month and rigorous imprisonment for one
    year for the offence under Section 324 of the IPC. Similar
    sentence was imposed on A-2 for the offences under Sections
    452, 302 read with Sections 34, and 324 of the IPC. As far as
    the offence under Section 326 is concerned, he was sentenced
    to undergo rigorous imprisonment for a period of three years
G   and to pay a fine of Rs.1,000/-, in default, to undergo simple
    imprisonment for three months. As far as A-3 is concerned, the
    sentence remained the same for the offences under Section
    302 read with Section 34, and 452 and 324 of the IPC.

H        12. Being dissatisfied with the judgment of conviction and
THOTI MANOHAR v. STATE OF ANDHRA PRADESH1141
             [DIPAK MISRA, J.]

the order of sentence, all the accused persons preferred appeal     A
before the High Court.

     13. Before the appellate court, it was contended that the
learned trial Judge has grossly erred by placing reliance on the
evidence of PWs-1 to 8, 10 and 12 despite the incurable             8
discrepancies pertaining to the place and time of occurrence
and further the learned trial Judge had totally erred by giving
credence to the version of the witnesses who are relatives of
the deceased and were absolutely interested to implicate the
accused. That apart, it was canvassed that there was no
circumstance on record to come to a definite conclusion that        C
A-2 and A-3 shared a common intention with A-1 to do away
with the life of the deceased inasmuch as they neither caused
injury on the body of the deceased nor did they instigate or
exhort A-1 to commit the murder and, therefore, they were only
liable for their individual acts and to be convicted and            D
sentenced for the offences committed by them. The said
submissions were controverted by the public prosecutor
 contending that A-2 and A-3 came armed with deadly weapons
to the house of the deceased and dragged him from his house
and attacked him. That apart, submitted the learned public          E
prosecutor before the appellate court, that they had earlier
threatened the deceased with dire consequences and thus, the
cumulative effect of the circumstances would go a long way to
reveal that there was a common intention to extinguish the life
spark of the deceased.                                              F

     14. The High Court referred to the inquest report of the
deceased, the injury reports of the injured persons, the human
blood as found from the report of serologist contained in Exh.
P-23, analysed the credibility and credentiality of the testimony   G
of the eye witnesses and placed reliance on the seized articles
and noted the consistency of the ocular evidence and the
corroborat.ion it had received from the medical evidence, the
detailed narration of the assault on the witnesses by the
assailants' group, the non involvement of A-3 with the previous     H
incident and threat given and the role ascribed to him and came
    1142      SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A to hold that there was no material to infer the common intention
  as far as A-3 was concerned and, accordingly, acquitted A- 3
  for the offence punishable under Section 302 read with Section
  34 of the IPC but sustained the conviction and sentence in
  respect of other offences. As far as the conviction and sentence
B of A-1 and A-2 are concerned, that was maintained.

        15. We have heard the learned counsel for the parties and
    perused the documents on record.

          16. It is submitted by the learned counsel for the appellant
C   that there is materiar contradiction about A-1 and A-2 letting
    their cows graze in the sugarcane field of the deceased
    inasmuch as different versions have been given by PW-1, the
    informant, and PW-20, the Circle Inspector of Police who
    conducted the investigation. It is urged by him that the High
D   Court has fundamentally erred by holding that there was
    intention on the part of A-1 to cause death of the deceased.
    The learned counsel would further contend that the deceased
    was the aggressor and the injuries found on A-1 and A-2 have
    not been explained as a consequence of which the case of the
E   prosecution does not deserve acceptance. It is his further
    submission that when the High Court had acquitted A-3 on the
    foundation that he did not share the common intention, on the
    same charge the appellant - A-2 should also have been
    acquitted and, therefore, this Court should acquit him of the
F   offence punishable under Section 302 read with Section 34 of
    the IPC. It is proponed by him that all the eye witnesses are
    interested witnesses and they have deliberately implicated the
    accused persons and further the prosecution has not made any
    endeavour to produce any independent witness.

G      17. The learned counsel for the State, in oppugnation,
  would submit that the accused were the aggressors and the
  same is absolutely demonstrable from the evidence brought on
  record and it does not remotely suggest any other version. After
  taking us through the evidence of the witnesses, he has
H contended that the prosecution witnesses are natural and
THOTI MANOHAR v. STATE OF ANDHRA PRADESH 1143
             [DIPAK MISRA, J.]

truthful and there is no reason to discard their version. In fact,   A
they have given the true version of the occurrence. It is urged
by him that the contention that the injuries on the accused
persons have not been explained by the prosecution and
hence, its version deserves rejection has no legs to stand upon
inasmuch as the injuries are absolutely superficial, minor and       B
in any case, they do not affect the prosecution case in its
entirety, especially when the evidence adduced by the
prosecution is clear, cogent and credible. The learned counsel
would further contend that the case put forth by the prosecution
in court is in conformity with the facts disclosed in the First      c
Information Report. It is graphically clear from the testimony of
the witnesses, the weapons used in the assault that have been
seized, the blood- stained clothes which have been recovered
and the evidence of the doctors who had examined the injured
witnesses and conducted the post mortem that the prosecution
                                                                     0
 has proved its case beyond reasonable doubt. It is further
canvassed by him that the plea on behalf of appellant that
 Section 34 of the IPC is not attracted, regard being had to the
fact that the said accused had not inflicted any injury on the
deceased and hence, had not shared the common intention,
 is absolutely unacceptable on apposite appreciation of the
                                                                     E
circumstances and the evidence brought on record which clearly
establish the sharing of common intention.

     18. Firstly, we shall proceed to deal with the earlier part
of the incident. PW-1, K. Sekhar, has testified that on              F
24.9.2002, A-1 and A-2 had led their cows to graze in the
sugarcane field of the deceased. He has stated how he drove
the cows to his house and tied them and how A-1 and A- 2,
the real brothers, came and assaulted the deceased and
himself and threatened them with dire consequences before            G
taking the cows back. He has also mentioned that both the
accused had pelted stones at them. Regarding the visit to the
elders, summon to the accused and decision to resolve the
controversy by convening a Panchayat on 26.9.2002, the same
has been clearly stated by him. The said version of PW-1 has         H
    1144    SUPREME COURT REPORTS                [2012] 5 S.C.R.


A received corroboration from PWs-2 to 6 and 10. Nothing has
  really been brought out to create a slightest doubt on that
  aspect. A contradiction which is sought to be highlighted is that
  there is no mention that the cows were led from the barren land
  of the accused to the sugarcane field of the deceased. The
B assertions that the cows belonged to A-1 and A-2; that they
  went to the field of the deceased and destroyed the crops; that
  they were driven by PW-1 to his house; that A-1 and A-2
  reached the house of the deceased, pelted stones, assaulted
  and forcibly drove back their cows have been clearly
c established. With this part of the occurrence, it is appropriate
  to connect the real genesis of the animosity, i.e., Dhanamma
  with whom A-1 had an illicit relationship and she was sent to
  Bangalore. P.W.1 as well as PWs-3, 4, 5 and 10, have
  categorically deposed about this aspects. In the cross~
  examination at the instance of A-1 and A-2 there was not even
0
  a proper suggestion to PW-1 in that regard. As far as PW-4 is
  concerned, there is further assertion in the cross-examination
  that there was illicit intimacy between A-1 and Dhanamma
  which hurt the feelings of the family. Similar is the evidence of
  other witnesses. To destroy the said aspect of the evidence, it
E was suggested that as a marriage alliance broke between the
  daughter of Dhanamma and another, she was sent to
  Bangalore. The core part of the testimony has really not been
  shaken. Thus, the genesis for the cavil and the subsequent
  disputes have been established beyond any reasonable doubt.
F
       19. Coming to the incident on 25.9.2002, it is in the
  evidence of PW-1 that at about 11.00 a.m., while the deceased,
  he and his mother were at their residence, A-1 and A-2 came
  armed with weapons and trespassed into the house. A-1 and
G A-2 dragged the deceased and A-1 assaulted the deceased
  with an iron rod on his head, neck and all parts of the body. He
  has admitted that A-3 Siva ram was a distant cousin and no role
  has been ascribed to him in the previous occurrence. It is also
  in his testimony that A-3 had not gone near the deceased.
H
 THOTI MANOHAR v. STATE OF ANDHRA PRADESH1145
              [DIPAK MISRA, J.]

      20. PW-2, another eye witness to the occurrence, has             A
testified that A-1 had assaulted the deceased with the iron rod
on the head, chest and other parts of his body. She has not
ascribed any role to accused No. 3.

    21. PW-3 is the wife of the deceased. She has                      B
categorically deposed that A-1 had assaulted her husband. She
has graphically stated the active role played by A-2.

     22. PW-4, who is another injured witness, has deposed
about the assault by A-1 and the beatings by A-2 to other
injured persons who intervened. Similar is the evidence of other       C
injured eye witnesses. Additionally, the earlier testimony has
received corroboration from the medical evidence in material
particular.

      23. Now, we shall proceed to dwell with the criticism on         o
the base of which the case of the prosecution is sought to be
demolished. The learned counsel for the appellant would submit
that the injuries sustained by the accused have not been
explained. On a perusal of the evidence of PW-20, the
Investigating Officer, it appears that when he arrested A-1 and        E
A-2, there were certain injuries on their person and they stated
that they had received the injuries at the hands of the deceased.
It is worth noting that the injuries are superficial in nature, the
accused were not sent for medical examination and further
there is no suggestion whatsoever as regards the injuries
                                                                       F
sustained by them to any of the witnesses. The story built up
as regards the fight between the two groups does not remotely
appeal to common sense and, more so, in the absence of any
evidence, it is like building a castle in Spain. Quite apart from
the above, non- explaining of injuries of the accused persons
is always not fatal to the case of the prosecution. In this context,   G
we may usefully refer to Sri Ram v. State of MP. 1 wherein it
has been held that mere non-explanation of the injuries by the
prosecution may not affect the prosecution case in all cases
and the said principle applies to cases where the injuries
1.   (2004) g sec 292.                                                 H
    1146     SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A sustained by the accused are minor and superficial or where
  the evidence is so clear and cogent, so independent and
  disinterested and so probable, consistent and creditworthy that
  it far outweighs the effect of the omission on the part of the
  prosecution to explain the injuries. Hence, we repel the said
B submission of the learned counsel for the appellants.

        24. The second submission of the learned counsel for the
  appellant is that all the witnesses, being relatives, are
  interested witnesses. The occurrence in part took place inside
C the house and the rest of it slightly outside the premises of the
  deceased. Under these circumstances, the family members
  and the close relatives are bound to be the natural witnesses.
  They intervened and sustained injuries. Their sustaining of
  injuries has got support from the ocular evidence as well as the
  medical evidence. The same has been dislodged and if we
D allow ourselves to say so, not even a fragile attempt has been
  made to dislodge the same. By no stretch of imagination, it can
  be said that they are chance witnesses. In the obtaining factual
  matrix, they are the most natural witnesses. In this context, we
  may refer with profit the decision of this Court in Dalip Singh
E v. State of Punjab 2 , wherein Vivian Bose, J., speaking for the
  Court, observed as follows: -

        "We are unable to agree with the learned Judges of the
        High Court that the testimony of the two eye-witnesses
F       requires corroboration. If the foundation for such an
        observation is based on the fact that the witnesses are
        women and that the fate of seven men hangs on their
        testimony, we know of no such rule. If it is grounded on the
        reason that they are closely related to the deceased we
G       are unable to concur. This is a fallacy common to many
        criminal cases and one which another Bench of this Court
        endeavoured to dispel in Rameshwar v. The State of
        Rajasthan (1952) SCR 377 at p. 390 =(AIR 1952 SC 54
        at page 59)."
H 2. AIR 1953 SC 364.
THOTI MANOHAR v. STATE OF ANDHRA PRADESH 1147
             [DIPAK MISRA, J.]

     In the said case, it was further observed that a witness is      A
normally to be considered independent unless he or she
springs from sources which are likely to be tainted and that
usually means unless the witness has cause, such as enmity
against the accused, to wish to implicate him falsely. Ordinarily,
a close relative would be the last to screen the real culprit and     B
falsely implicate an innocent person. It is true that when feelings
run high and there is personal cause for enmity, there is a
tendency to drag in an innocent person against whom a witness
has a grudge along with the guilty, but foundation must be laid
for such a criticism and the mere fact of relationship far from       c
being a foundation is often a sure guarantee of truth.

      25. In Masa/ti v. State of U.P. 3 , it has been ruled that
normally close relatives of the deceased would not be
considered to be interested witnesses who would also mention
the names of the other persons as responsible for causing             D
injuries to the deceased.

      26. In Hari Obu/a Reddi and others v. The State of Andhra
Pradesh4, a three-Judge Bench has held that evidence of
interested witnesses is not necessarily unreliable evidence.          E
Even partisanship by itself is not a valid ground for discrediting
or rejecting sworn testimony. It can not be laid down as an
invariable rule that interested evidence can never form the basis
of conviction unless corroborated to a material extent in material
particulars by independent evidence. All that is necessary is that    F
the evidence of interested witnesses should be subjected to
careful scrutiny and accepted with caution. If on such scrutiny,
the interested testimony is found to be intrinsically reliable or
inherently probable, it may, by itself, be sufficient, in the
circumstances of the particular case, to base a conviction            G
thereon.



3.   AIR 1965 SC 202.
4.   AIR 1981 SC 82.                                                  H
         1148    SUPREME COURT REPORTS                [2012] 5 S.C.R.


A      27. In Kartik Malhar v. State of Bihaf', it has been opined
  that a close relative who is a natural witness cannot be regarded
  as an interested witness, for the term 'interested' postulates that
  the witness must have some interest in having the accused,
  somehow or the other, convicted for some animus or for some
B other reason.

          28. In Pu/icherla Nagaraju alias Nagaraja Reddy v. State
     of Andhra Pradesh 6 , while dealing with the liability of interested
  witnesses who are relatives, a two-Judge Bench observed that
  it is well settled that evidence of a witness cannot be discarded
C merely on the ground that he is either partisan or interested or
  close relative to the deceased, if it is otherwise found to be
  trustworthy and credible. The said evidence only requires
  scrutiny with more care and caution, so that neither the guilty
  escapes nor the innocent is wrongly convicted. If on such
D carefulscrutiny, the evidence is found to be reliable and
  probable, then it can be acted upon. If it is ·found to be
  improbable or suspicious, it ought to be rejected. Where the
  witness has a motive to falsely implicate the accused, his
  testimony should have corroboration in regard to material
E particulars before it is accepted.

       29. Tested on the anvil and touchstone of the aforesaid
  principles, we find that the evidence of the injured witnesses
  who are close relatives to the deceased have really not
F embellished or exaggerated the case of the prosecution. They
  are the most natural witnesses and there is nothing on record
  to doubt their presence at the place of occurrence. By no stretch
  of imagination, it can be stated that the presence of the said
  witnesses at the scene of the crime and at the time of
G occurrence was improbable. Their version is consistent and
  nothing has been suggested to bring any kind of inherent
  improbabilities in their testimonies.

           30. The learned counsel for the appellant has endeavoured
    5.    (1996) 1 sec 614.
H 6.      AIR 2006 SC 3010.
THOTI MANOHAR v. STATE OF ANDHRA PRADESH1149
             [DIPAK MISRA, J.]

hard to highlight certain discrepancies pertaining to time, A
situation of the land, number of persons, etc., but in our
considered opinion, they are absolutely minor in nature. The
minor discrepancies on trivial matters not touching the core of
the matter cannot bring discredit to the story of the prosecution.
Giving undue importance to them would amount to adopting a B
hyper-technical approach. The Court, while appreciating the
evidence.should not attach much significance to minor
discrepancies, for the discrepancies which do not shake the
basic version of the prosecution case are to be ignored. This
has been so held in State of UP. v. M.K. Anthony7 ; Appabhai c
and another v. State of Gujarat8; Rammi alias Rameshwar v.
 State of Madhya Pradesh9 ; State of H.P. v. Lekh Raj and
another10 ; Laxman Singh v. Poonam Singh 11 and Dashrath
 Singh v. State of U.P.12 No evidence can ever be perfect for
man is not perfect and man lives in an imperfect world. Thus, 0
the duty of the court is to see with the vision of prudence and
acceptability of the deposition regard being had to the
substratum of the prosecution story. In this context, we may
 reproduce a passage from the decision of this Court in State
 of Punjab v. Jagir Singh Baljit Singh and Karam Singh 13 , E
wherein H.R. Khanna, J., speaking for the Court, observed
thus:-

            "A criminal trial is not like a fairy tale wherein one is
      free to give flight to one's imagination and phantasy. It
      concerns itself with the question as to whether the accused       F
      arraigned at the trial is guilty of the crime with which he is
      charged. Crime is an event in real life and is the product

7.   AIR 1985 SC 48.
8.   AIR 1988 SC 696.                                                   G
9.   AIR 1999 SC 3544.
10. (2000) 1 sec 247.
11 . (2004) 10 sec 94.
12. (2004) 1 sec 408.
13. AIR 1973 SC 2407.                                                   H
    1150      SUPREME COURT REPORTS                  [2012] 5 S.C.R.


A        of interplay of different human emotions. In arriving at the
         conclusion about the guilt of the accused charged with the
         commission of a crime, the court has to judge the evidence
         by the yardstick of probabilities, its intrinsic worth and the
         animus of witnesses. Every case in the final analysis would
B        have to depend upon its own facts. Although the benefit
         of every reasonable doubt should be given to the accused,
         the courts should not at the same time reject evidenc~
         which is ex facie trustworthy on grounds which are fanciful
         or in the nature of conjectures. n
c         31. In view of our aforesaid analysis, we are unable to
    accept the submission of the learned counsel for the appellant
    that the evidence of the eye witnesses should be rejected solely
    on the ground that they are close relatives and interested
    witnesses.
D
        32. The next plank of submission which has been
   ambitiously and zealously pyramided by the learned counsel for
   the appellant is that the appellant has been erroneously
   convicted with the aid of Section 34 of the IPC. It is worth noting
E that the High Court has acquitted A-3 on the ground that he did
   not share the common intention. Certain distinct features have
  been emphasised by the High Court. They are (i) he is a distant
  cousin of A-1 and A-2 and belongs to a different village; (ii) he
  had no role to play with the genesis of the occurrence and the
F subsequent cavil; (iii) he had neither participated in the dragging
  of the deceased nor did he assault on his body; (iv) he was at
  a distance (v) A-1 and A-2 are real brothers and they have
  definite roles as regards the previous incident; and (vi) A-2 was
  intervened by the witnesses from assaulting the deceased. The
  material evidence on record clearly shows that A-1 and A-2 had
G threatened the deceased with dire consequences. Though they
  had gone to the elders on 24.9.2002 and the Panchayat was
  to be convened on 26.9.2002, yet on 25.9.2002 at 11.00 a.m.,
  armed with lethal weapons, they went to the house of the
  deceased.
H
THOTI MANOHAR v. STATE OF ANDHRA PRADF:SH1151
             [DIPAK MISRA, J.]

     33. In Ram Taha/ and others v. The State of U.P. 14 , while     A
dealing with the applicability of Section 34 of the IPC, a two-
Judge Bench observed there is no doubt that a common
intention should be anterior in time to the commission of the
crime showing a pre-arranged plan and prior concert, and
though it is difficult in most cases to prove the intention of an    B
individual, yet it has to be inferred from the act or conduct or
other relevant circumstances of the case. This inference can
be gathered by the manner in which the accused arrived on the
scene and mounted the attack, the determination and concert
with which the beating was given or the injuries caused by one       c
or some of them, the acts done by others to assist those
causing the injuries, the concerted conduct subsequent to the
commission of the offence, for instance, that all of them had left
the scene of the incident together, and other acts which all or
some may have done as would help in determining the common
                                                                     0
intention. In other words, the totality of the circumstances must
be taken into consideration in arriving at the conclusion whether
the accused had a common intention to commit an offence with
which they could be convicted.

     34. In Rajesh Govind Jagesha v. State of Maharashtra 15 ,       E
a two-JudgeBench has held that the existence of common
intention can be inferred from the attending circumstances of
the case and the conduct of the parties. No direct evidence of
common intention is necessary. For the purpose of common
intention, even the participation in the commission of the offence   F
need not be proved in all cases.

     35. In Bishna alias Bhiswadeb Mahato and others v. State
of West Benga/1 6 , it has been held that for the purpose of
attracting Section 34 of the IPC, specific overt act on the part     G
of the accused is not necessary. He may even wait and watch.
Inaction on the part of an accused may sometime go a long
14. AIR 1972 SC 254.
15. AIR 2000 SC 160.
16. AIR 2006 SC 302.                                                 H
    1152      SUPREME COURT REPORTS                 [2012] 5 S.C.R.

A way to achieve a common intention or an object with others.

        36. In Manik Das and others v. State of Assam 17 , it has
    been held as follows:-

          'The Section does not say "the common intention of all",
B         nor does it say "and intention common to all". Under the
          provisions of Section 34 the essence of the liability is to
         be found in the existence of a common intention animating
         the accused leading to the doing of a criminal act in
         furtherance of such intention. As a result of the application
c        of principles enunciated in Section 34, when an accused
         is convicted under Section 302 read with Section 34, in
         law it means that the accused is liable for the act which
         caused death of the deceased in the same manner as if
         it was done by him alone. The provision is intended to
D        meet a case in which it may be difficult to distinguish
         between acts of individual members of a party who act in
         furtherance of the common intention of all or to prove
         exactly what part was taken by each of them. As was
         observed in Ch. Pu/la Reddy and Ors. v.. State of Andhra
E        Pradesh (AIR 1993 SC 1899). Section 34 is applicable
         even if no injury has been caused by the particular accused
         himself. For applying Section 34 it is not necessary to
         show some overt act on the part of the accused:

       37. Coming to the case at hand, the appellant had an
F inimical relationship with the deceased and his family as the
  previous occurrences would show. Despite a consensus being
  arrived at that there would be a panchayat on 26.9.2002, they,
  armed with deadly weapons, went to the house of the deceased
  and dragged the deceased. The previous meeting of minds with
G pre-arranged plan or prior concert as has been held in number
  of authorities is difficult to establish by way of direct evidence.
  They are to be inferred from the conduct and circumstances.
  As is evincible, the weapons they carried were lethal in nature.

H   17. AIR 2007 SC 2274.
THOTI MANOHAR v. STATE OF ANDHRA PRADESH1153
             [DIPAK MISRA, J.]

The deceased was absolutely helpless and not armed with any          A
weapon. It was most unexpected on their part as normally it was
expected that there would be a panchayat on the next day. The
two brothers, A-1 and A-2, dragged the deceased outside the
house and A-1 gave the blows. True it is that A-2 did not give
the blow, but his participation from the beginning till the end      B
would clearly reveal that he shared the common intention with
his brother. He had assaulted the other witnesses who had tried
to intervene. Thus, though he might not have inflicted the injury,
yet it can safely be concluded that he shared the common
intention making him jointly liable.                                 c
    38. In view of our preceding analysis, we do not find any
merit in this appeal and, accordingly, the same stands
dismissed.

R.P.                                         Appeal dismissed.       D