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Thursday, December 13, 2012

The suspicion that the deceased had illicit relationship with the wife of the accused was the reason for this mid-night murder. Learned Sessions Judge, after completion of the trial and on going through the evidence, found the accused guilty of the offence under Section 302 IPC and sentenced him to life imprisonment, vide its judgment dated 14.9.2004. Aggrieved by the same, the accused filed Criminal Appeal No. 2480 of 2004 before the High Court of Andhra Pradesh. The High Court dismissed the appeal and confirmed the conviction and sentence awarded by the Sessions Court. Aggrieved by the same, this appeal has been preferred. In the facts and circumstances of the case, we are of the view that the Sessions Court and the High Court have correctly come to the conclusion that the prosecution has succeeded in establishing the guilt of the accused beyond all reasonable doubt.


                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 316 OF 2008

Kukapalli Mohan Rao                                 .. Appellant
                                   Versus
State of A.P.                                             .. Respondent

                               J U D G M E N T

K. S. Radhakrishnan, J.

1.    The suspicion that the deceased  had  illicit  relationship  with  the
wife of the accused was the reason for this mid-night murder.  
The  accused
had disclosed the same to PWs 8  and  9  and  requested  them  to  warn  the
deceased, or else, the accused announced that he would deal  with  the  same
and was even prepared to go to jail.  
PWs 8 and 9 warned the  deceased,  but
the deceased reacted stating that the accused was only suspecting him.
2.    At mid-night 12 O’clock on 13.6.2001, the  deceased  was  sleeping  on
the western side of Pancha of his house  along  with  wife  PW  2.  

PW  3, brother of the deceased, was also sleeping inside the house along  with  the
children of the deceased.  
At midnight PW 2 heard the cries of the  deceased
and woke up and saw the accused standing near  the  deceased  with  an  axe.

PW2 then called PW 3 who chased the accused, but he escaped leaving the  axe
at the spot.

Noticing that the deceased was bleeding with head  injury,  PW
3 along with PW 5, brother-in-law of the deceased, took the  deceased  in  a
tractor of PW 12 to a private hospital of  PW  7,  where  the  deceased  was
declared dead.  
Later, PW 4, father of the deceased, informed the death  of
the deceased to PW 1, the Village  Administrative  Officer  at  8.00  am  on
14.6.2001.   
PW 1 scribed the report - Ex.P1 – and  presented  the  same  to
the police on 14.6.2001 and, on the basis of the same, PW 14,  Sub-Inspector
of Police registered Crime No. 34 of 2001 and issued the FIR Ex.P14.

3.    PW 15,  Inspector  of  Police,  conducted  the  investigation  and  he
visited the scene of occurrence and completed other  formalities,  including
the inquest over the dead body of the deceased.  PW  15  also  requisitioned
the services of the dog squad and seized the material object  including  the
axe which was used for the commission of the  offence.   PW  13,  the  Civil
Assistant Surgeon, held autopsy over the  dead  body  and  opined  that  the
cause of death was due to shock and head injury.

4.    The prosecution, in order to prove the guilt of the accused,  examined
PW 1 to PW 15 and marked Ex. P1 to P18 and also MOs 1 to 7.   On  behalf  of
the defence, no oral evidence was adduced, but Ex. D1 to 4 were marked.   On
conclusion of the examination of the prosecution witnesses, the accused  was
examined  under  Section  313  Cr.P.C.  and  he  denied  all   incriminating
materials appeared against him in the prosecution evidence.

5.    Learned Sessions Judge, after completion of the  trial  and  on  going
through the evidence, found the accused guilty of the offence under  Section
302 IPC and sentenced him to life  imprisonment,  vide  its  judgment  dated
14.9.2004.   Aggrieved by the same, the accused filed  Criminal  Appeal  No.
2480 of 2004 before the High  Court  of  Andhra  Pradesh.   The  High  Court
dismissed the appeal and confirmed the conviction and  sentence  awarded  by
the Sessions Court.  Aggrieved by the same, this appeal has been  preferred.


6.    Shri Ajay Sharma,  Advocate-on-Record,  appearing  on  behalf  of  the
appellant, submitted that the evidence of PWs 2 and  3  cannot  be  believed
since they are interest witnesses.  Further, it was also  pointed  that  the
name of PWs 2 and 3 do not find any place Ex.P1 report and, as  such,  their
testimony be considered only  with  suspicion.   Learned  counsel  submitted
placed reliance on the judgment of this Court in Madudanal Augusti v.  State
of Kerala (1980) 4 SCC 425 and submitted that omission to mention the  names
of the eye-witnesses in the FIR and unexplained delay  in  despatch  of  FIR
would throw serious doubt on the prosecution  case.   Learned  counsel  also
submitted that the prosecution miserably failed to prove the alleged  motive
for the commission of the offence and, as such, the  accused  be  given  the
benefit of  doubt.   Further,  it  was  also  pointed  out  that  there  was
considerable delay in  registering  the  FIR,  hence,  there  is  scope  for
concoctions and confabulations. All these factors, according to the  learned
counsel, would be sufficient to acquit the accused  giving  the  benefit  of
doubt.

7.    Shri Shishir Pinaki,  learned  counsel  appearing  on  behalf  of  the
State, submitted that there is no illegality in  the  findings  recorded  by
the Sessions Court, which were confirmed by the High  Court.   The  evidence
of PWs 2 and 3 is reliable and crucial to the  prosecution  case.   Further,
it was also pointed out that the axe used in the commission of  the  offence
was also recovered from the  spot.   Learned  counsel  also  submitted  that
there was no considerable delay in lodging the FIR and  if,  at  all,  there
was some delay, that has been clearly explained  and  that  explanation  has
been accepted both by the Sessions  Court  and  the  High  Court.    Learned
counsel also submitted that the motive for the commission of crime has  been
established and the evidence of PWs 8 and 9 would indicate that the  accused
was suspecting that the deceased had illicit intimacy with his  wife  PW  2.
Learned counsel further submitted that even assuming  that  the  prosecution
has not succeeded in proving the  motive,  even  then  there  is  sufficient
ocular evidence to  prove  that  the  accused  had  committed  the  offence.
Learned counsel submitted that there is no reason to  upset  the  concurrent
findings recorded by the Sessions Court as well as  the  High  Court,  after
appreciating the oral and documentary evidence adduced  by  the  prosecution
as well as the defence.

8.    We are, in this case, concerned only with  the  question  whether  the
prosecution has proved the guilt of the accused beyond all reasonable  doubt
and the  Sessions  Court  and  the  High  Court  have  rightly  reached  the
conclusion that the accused has committed the offence.

9.    PWs 2 and 3 are crucial witnesses in this case to  establish  that  it
was the accused who had committed the crime.  PW 2, wife  of  the  deceased,
had clearly deposed that she herself and daughter were  sleeping  on  a  cot
and the deceased was sleeping on the other  cot  in  the  same  room.   PW3,
brother of the deceased, and other family members were sleeping  inside  the
house.  In the midnight on 13.6.2001, the deceased raised a cry  as  “Ammo”.
On hearing the cries of the deceased, she woke up and switched on the  light
and found the accused near the deceased with an  axe.    Out  of  fear,  she
called PW 3 and he rushed in.  On seeing PW 3, the  accused  ran  away  from
the place throwing the axe used for the commission of the offence.   In  our
view, the evidence of  PW  2  is  trustworthy  and  we  have  no  reason  to
disbelieve that she is implicating the accused and she has no motive  to  do
so as well.  PW 3, in his deposition, has categorically stated that  he  has
chased the accused, but when PW 2  had  informed  him  that  the  blood  was
bleeding from the head of the deceased, he came back.   PW 3  then  informed
the incident to the brother-in-law of the deceased.  PWs  3  and  5  shifted
the deceased to a private hospital in a tractor and the  dead  body  of  the
deceased was brought back at 3.00 am on 14.6.2001.   PW 3 then informed  the
incident to the brother of the deceased - PW 4 through telephone.   PW3  has
categorically stated that the accused had hacked the deceased  with  an  axe
and ran away and he found the axe at the scene of occurrence.   We  have  no
reason to disbelieve the evidence of PW 3.  PW  3  also  had  no  reason  to
implicate the accused in this crime.

10.   PWs 8 and 9 stated that the accused had indicated  to  them  that  the
deceased was having illicit intimacy with his wife.  It was stated that  the
accused had informed them that he  was  even  prepared  to  go  to  jail  by
beating  the  deceased,  if  the  deceased  had  not  stopped  that  illicit
intimacy.  PW 13, the doctor, who conducted  the  post-mortem,  opined  that
the  deceased  died  due  to  shock  and  the  head  injury.   PW  15,   the
Investigating Officer, stated that he had visited the scene  of  offence  at
about 12.45 am on 14.6.2001 and seized the  blood  stained  earth,  material
objects and conducted the inquest over the dead body  of  the  deceased  and
sent the dead body for post-mortem examination.   PW  14,  Sub-Inspector  of
Police, stated that he had registered the crime No. 34 of  2001  and  issued
the FIR.  Ex.P1 report clearly discloses the commission of  the  offence  by
the accused.  There is  no  necessity  of  the  detailed  narration  of  the
incident, as to how PWs2 and 3 saw it, in the FIR.     PWs  2  and  3  after
all are not the authors  of  the  complaint.   Their  statements  cannot  be
disbelieved on the ground that their finding the accused  on  the  scene  of
occurrence with an axe, has not found any place in the FIR.

11.   This Court in Surjit Singh @ Gurmit Singh  v.  State  of  Punjab  1993
Supp. (1) SCC 208, held that the FIR is not a substantive piece of  evidence
and can only be used  to  corroborate  the  statement  of  the  maker  under
Section 161 of the Evidence Act or to contradict him under  Section  145  of
the Act.  It is not the requirement of the law that the minutest details  be
recorded in the FIR lodged immediately  after  the  occurrence.    Reference
may also be made to the judgment of this Court in Ravi  Kumar  v.  State  of
Punjab  (2005) 9 SCC 315.

12.   Learned  counsel  appearing  for  the  appellant  submitted  that  the
prosecution had miserably  failed  to  prove  the  alleged  motive  for  the
commission of the offence.  In Ex.P1, it  was  mentioned  that  the  accused
killed the deceased in view of the illicit intimacy of  his  wife  with  the
deceased.  Prior to the commission of the offence,  about  one  month  back,
the accused had informed PW 5 on the illicit affairs of his  wife  with  the
deceased and asked him to advise the deceased to  deter  from  that.   PW  5
along with PWs 8 and 9 would indicate  that  the  accused  had  carried  the
feeling that the deceased was having  some  illicit  relationship  with  his
wife.  Assuming that the prosecution has not succeeded in  establishing  the
motive for the commission of the offence, when there is un-impeachable  oral
evidence, the motive would be irrelevant.
13.   In Baitullah and Another v. State of  U.P.  (1998)  1  SCC  509,  this
Court  has  taken  the  view  that  where  a  murderous  assault  has   been
established by clear ocular evidence, the motive pales into  insignificance.
  In State of Himachal Pradesh v. Jeet Singh (1999) 4 SCC  370,  this  Court
held that it is a sound principle to remember that every  criminal  act  was
done with a motive, but its corollary is not that no criminal offence  would
have been committed if the  prosecution  has  filed  to  prove  the  precise
motive of the accused to commit it and the prosecution succeeded in  showing
the possibility of some ire for the accused towards the victim.  This  Court
held that it is also impossible for the  prosecution  to  unravel  the  full
dimension of the mental disposition of an offender towards the  person  whom
he offended.  Reference may also be made to the judgments of this  Court  in
Nathuni Yadav and Another v. State of Bihar and Another (1998) 2 SCC 238.

14.   The direct evidence of illicit intimacy  cannot  always  be  expected.
But, taken into consideration of the evidence of PW 5 and PWs 8 and  9,  the
prosecution could establish that the accused had  a  grudge  or  ill-feeling
towards the deceased that led him to commit the murder.  PWs 2 and  3  found
the accused with MO6  (axe)  which  was  used  for  the  commission  of  the
offence.  PWs 5 and 9 also stated that in their  evidence  that  they  found
the axe near the cot at the scene of  the  offence.   The  prosecution  also
proved that MO6 axe was seized from the scene of occurrence  by  PW  15,  in
the presence of PW 1 and 11.  MO6 axe was also sent to R.F.S.L.,  Vijayawada
for analysis and from Ex.P18 report dated 4.8.2001,  it  was  observed  that
the blood  of  human  origin  was  detected  on  MO6  axe.   Therefore,  the
contention raised  by  the  learned  counsel  appearing  for  the  appellant
accused that MO6 was planted, cannot be accepted.

15.   We are also not impressed by the contention raised on  behalf  of  the
appellant that there was delay in informing the incident to the police.  The
incident had happened at the midnight of 13.6.2001.  The deceased was  taken
to the private hospital by PWs 3 and 5 in a tractor of PW 7,  where  he  was
declared dead.  The dead body of the deceased was brought back to the  house
at about 3.00 am.  PW 4, father of the deceased, then informed the death  of
the deceased to PW 1, the Village Administrative Officer, at about  8.00  am
on  14.6.2001.   PW  14,  Sub-Inspector  of  Police,  stated  that  he   had
registered the complaint after 10 hours from the time of the incident,  i.e.
in the morning of 14.6.2001.  Learned counsel for the appellant, as we  have
already indicated, pointed out that the delay in reporting the  incident  to
the police cause serious suspicion on the evidence of PWs 2 and 3.   It  was
pointed out that immediately after  the  alleged  incident,  PW  3  had  the
occasion to pass through Martur village, but had not reported  the  same  to
the police.  The delay in registering the  FIR,  according  to  the  learned
counsel, weakens the prosecution case.  We find no basis in  the  contention
raised by the counsel.

16.   This Court in State of West Bengal v. Orilal Jaiswal (1994) 1  SCC  73
held that the delay in filing the FIR ipso facto could not go to  show  that
the case against the accused is false.  This Court in Jahoor and  Others  v.
State of U.P. 1999 Supp (1) SCC 372, Tara Singh & Others v. State of  Punjab
1991 Supp (1) SCC 536 and Jamna v. State of U.P. 1994 Supp (1) SCC 185,  has
held that where there is a delay in making the FIR, the Court is to look  at
the causes for it and if such causes are not contributable to any effort  to
concoct a version, no consequence shall be attached to  the  mere  delay  in
lodging the FIR.  In Tara Singh (supra), this Court held as follows:
      “It is well-settled that the delay in giving the FIR by itself  cannot
      be a  ground  to  doubt  the  prosecution  case.  Knowing  the  Indian
      conditions as they are we cannot expect these villagers to rush to the
      police station immediately after the occurrence. Human  nature  as  it
      is, the kith and kin who  have  witnessed  the  occurrence  cannot  be
      expected to act mechanically with all the promptitude  in  giving  the
      report to the police. At times being  grief-stricken  because  of  the
      calamity it may not immediately occur to them that they should give  a
      report. After all it is but natural in these circumstances for them to
      take some time to go to the police station for giving the report…..”

The view expressed in the above mentioned judgments was  later  followed  by
this Court in Ravinder Kumar and Another v. State of  Punjab  (2001)  7  SCC
690.

17.   We are of the view that the principle laid down by this Court  in  the
above mentioned judgments  is  squarely  applicable  to  the  facts  of  the
present case.  Not only that there was no inordinate delay in informing  the
incident to the police, there has been sufficient explanation for the  delay
of 10 hours in intimating the offence to the police.   We,  therefore,  find
no basis in the contention raised by the learned counsel appearing  for  the
appellant.

18.   In the facts and circumstances of the case, we are of  the  view  that
the Sessions Court and the High Court have correctly come to the  conclusion
that the prosecution has succeeded in establishing the guilt of the  accused
beyond all reasonable doubt.

19.   The appeal, therefore, lacks in merits and accordingly dismissed.

                                                            ………………………………..J.
                                               (K.S. Radhakrishnan)





                                                           …………………………………..J.
                                             (Dipak Misra)
New Delhi,
December 11, 2012

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