Andhra Pradesh High Court - Amravati
Bandaru Venkatesh, vs The State Of Ap Rep By Its Pp Hyd., on 4 March, 2022
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
CRIMINAL APPEAL NO.1244 OF 2012
JUDGMENT:(Per the Hon'ble Sri Justice C. Praveen Kumar) The appellant, who is A.2 in Sessions Case No.394 of 2009 on the file of learned III Additional District and Sessions Judge (F.T.C.), Anantapur, was tried for an offence punishable under Section 302 of IPC.
2. Originally, A.1 to A.7 were tried on five charges. The first charge was under Section 302 of Indian Penal Code, 1860 [for short, "I.P.C."] against A.2. He was found guilty and sentenced to suffer Life Imprisonment and to pay a fine of Rs.1000/- in default, to suffer simple imprisonment for ten days.
(i) The second charge under Section 326 I.P.C. was against A.4 for causing injuries to one P.W.2. He was found guilty for the offence under Section 324 I.P.C. and sentenced to suffer Rigorous Imprisonment for six (6) months and to pay a fine of Rs.500/- in default, to suffer Simple Imprisonment for one week.
(ii) The third charge was against A.1 to A.7 for the offence under Section 147 I.P.C. They were found not guilty and acquitted of the said charge.2
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(iii) The fourth charge was against A.1 to A.7 for the offence under Section 148 I.P.C. They were found not guilty and acquitted of the said charge.
(iv) The fifth charge was against A.1, A.3 to A.7 for the offence under Section 302 r/w. Section 149 I.P.C. They were found not guilty and acquitted of the said charge.
3. The facts, in issue, are as under:-
(i) A.1 to A.7 are residents of Siddarampuram Village of B.K. Samudram Mandal. P.Ws.1 to 9 are also residents of same Village. P.Ws.1 and 4 are brothers of the deceased [Bandaru Venkatesh] while P.W.2 is the father and P.W.3 is the wife of the deceased. P.W.5 is the brother-in-law of the deceased. It is said that about a week prior to the incident, at about 6.00 PM, the deceased and Kondanna indulged in a quarrel infront of the brandy shop. In that incident, A.2 and his brother-in-law by name Nagendra beat the deceased.
After the incident, the deceased returned home and informed about the incident. He was chastised and asked not to indulge in such type of quarrel. A week later, P.W.1 was returning to his village after selling the milk and when he reached near the Auto stand at 6.00 P.M. i.e., on 14.05.2008, found A.1 and deceased quarrelling. Then, P.W.1 is said to have chastised both of them and brought the deceased to his house. P.W.1 was instructing his sister-in-law i.e. P.W.3-wife of the deceased to warn the deceased not to involve in such quarrels. At that point of time, A.1 to A.7 came to their house 3 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 along with sticks. A.2 by uttering the words "emira nakodakallara meeru ma vadi pyki vache valla ani eseyandira ee nakodukulanu", beat the deceased on his head, causing bleeding injury. As a result of the said blow, the deceased fell down. When P.W.1 intervened, A.1 is said to have beat with a stick on his left hand fingers and also on right shoulder, as a result of which, P.W.1 fell down. Then, P.W.4 the father of P.W.1 interfered, A.4 is said to have beat him with a stick on his right hand causing bleeding injury and also on right shoulder and left elbow.
(ii) It is also stated that all the seven accused also beat P.W.1, the deceased and their father indiscriminately and abused them. As neighbours gathered at the spot, the accused left the place. It is said that P.Ws.6 to 8 got an auto rickshaw and shifted P.Ws.1, 4 and the deceased to Government Hospital, Anantapur.
(iii) P.W.12-Civil Assistant Surgeon, Government General Hospital, Anantapur examined P.W.1 at 7.50 P.M., on 14.05.2008 and noticed three injuries. According to him, Injury No.3 is grievous in nature. Ex.P5 is the wound certificate issued by her. On the same day at 8.00 P.M., he examined P.W.2 and issued Ex.P6 wound certificate. According to her, the injury found on P.W.2 is grievous in nature. P.W.12 also examined the deceased and advised him to be shifted to Government General Hospital, Kurnool, for 4 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 better treatment. The deceased was accompanied by P.Ws.3 to 5 to Government General Hospital, Kurnool.
(iv) On the next day morning at about 7.00 A.M., P.W.14-Head Constable of II Town Police Station, Anantapur received a medical intimation from the Casualty Medical Officer, Anantapur about the admission of P.Ws.1 and 2 in the hospital. He went to the hospital, recorded the statement of P.W.1 and obtained his signature on the statement. Ex.P1 is the statement. On 15.05.2008 at 4.15 P.M., P.W.15 Sub- Inspector of Police received medical intimation about the admission of P.W.1 and also the statement of P.W.1 from P.W.14. Basing on the said statement, P.W.15 registered a case in Crime No.53 of 2008 under Sections 143, 324 r/w. Section 34 I.P.C. Ex.P10 is the F.I.R. The said F.I.R. is said to have been received by the Magistrate on the next day on 16.05.2008 at 11.30 A.M.
(v) After registering the F.I.R., P.W.15 proceeded to Siddarampuram Village and in the presence of P.Ws.8 and 9 observed the scene of offence i.e., infront of house of P.W.1 and seized four thorny sticks [M.O.1] and one wooden reaper [M.O.2] in the presence of mediators under Ex.P3. He also prepared a rough sketch of scene which is placed on record as Ex.p11. He then proceeded to the hospital and recorded the statements of P.Ws.1 and 2.
(vi) On the next day i.e., on 16.05.2008 at about 8.00 A.M., P.W.1 is said to have gone to B.K. Samudram Police 5 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 Station and lodged a report [Ex.P2] informing the death of the deceased at 1.40 A.M. on 16.05.2008 while undergoing treatment. Basing on the report, the section of law was altered to Section 143, 324, 302 r/w. Section 34 I.P.C. Ex.P12 is the altered F.I.R. On receipt of death intimation, P.W.16, the Inspector of Police, Itikalapalli Circle proceeded to B.K. Samudram Police Station, collected the F.I.R. and after securing the mediators, proceeded to Government General Hospital and held inquest over the dead body of the deceased between 12.30 P.M to 3.00 P.M in the presence of P.W.11. Ex.P4 is the inquest report. At the time of inquest, he recorded the statements of P.Ws.3 to 5. After completing the inquest proceedings, the body was sent for Post Mortem examination.
(vii) P.W.13-Assistant Professor, Forensic Medicine, Government General Hospital, Kurnool Medical College, conducted autopsy over the dead body of the deceased and found two sutured wound presents on the left temporal and parietal region. According to the doctor, the cause of death was due to fracture of skull and intracranial haemorrhage due to the injury. Ex.P7 is the post mortem certificate. Further investigation in this case was taken up by P.W.17- Inspector of Police, who on receipt of credible information arrested the accused on 20.05.2008 and remanded the accused to custody.
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4. After collecting all the necessary documents, a Charge Sheet came to be filed, which was taken on file as P.R.C.No.138 of 2008 on the file of the learned Additional Judicial Magistrate of First Class, Anantapur, for the offences punishable under Sections 147, 148, 324, 326, 302 r/w. Section 149 I.P.C against A.1 to A.7.
5. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to them. As the offences are triable by Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of III Additional District and Sessions Judge (F.T.C.), Anantapur for disposal in accordance with law.
6. Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, they pleaded not guilty and claimed to be tried.
7. To substantiate its case, the prosecution examined P.Ws.1 to 17 and got marked Exs.P1 to P12 and M.Os.1 and
2. After the closure of the Prosecution evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. In support of their plea, they got examined D.Ws.1 and 2 and got marked Exs.D1 to D39. Relying upon the 7 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 evidence of eye witnesses and the injured witnesses examined as P.Ws.1 and 2 which corroborated the medical evidence and material particulars, coupled with the motive for the incident the learned Sessions Judge convicted the accused. Challenging the conviction, the present appeals came to be filed by the appellant.
8. Heard Sri T. Pradyumna Kumar Reddy, learned counsel for the appellant and Sri S. Dushyanth Reddy, learned Additional Public Prosecutor for the State.
9. Sri T. Pradyumna Kumar Reddy, learned Senior Counsel for the appellant mainly submits that it is a case and counter, and as such, the prosecution has not come forward with the true version of the case. He placed reliance on the injuries sustained by the accused in support of his plea. He further submits that the prosecution has not explained the injuries on the accused, and as such, the genesis of the incident is suppressed. Learned counsel for the appellant further submits that the prosecution has failed to explain the delay in giving the report and the report reaching the Court. Learned Senior Counsel would submit that when P.W.1 was admitted in the hospital on the night of 14.05.2008 and was discharged on 16.05.2008 evening, which is evident from defence documents and the evidence of D.W.2, a doubt arises as to how he could have lodged a report on 16.05.2008 morning. He further submits that the scene of offence is 8 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 different from what has been stated by the prosecution witnesses. He further submits that in all the medical certificates, marked in "D" series, one can notice alteration in date column from 17.05.2008 to 16.05.2008 and no explanation is forthcoming for such alteration.
10. On the other hand, Sri S. Dushyanth Reddy, learned Additional Public Prosecutor would contend that the argument of learned Senior Counsel that there was a case and counter is absolutely incorrect. According to him, there are two incidents within a gap of ten minutes which lead to registration of two crimes. In support of the same, he referred to Exs.D31 to 33 to show that the first incident was at the Auto Stand at 6.00 P.M. where the accused sustained injuries while the second incident was at the house of deceased. He further submits that there is no evidence on record to show that the Auto Stand and the house of P.W.1 are at the same place, more so, when P.W.1 in her evidence deposed about taking the deceased from the Auto Stand to his house which is in a different street. He also took us through the cross- examination of P.W.16 to show that there are two crimes.
11. P.W.15 in his cross-examination admits that on receipt of medical intimation about the admission of A.1 and his junior paternal uncle, he registered a counter case as Crime No.54 of 2008. Though he admits that he cannot say whether the scene of offence is same and also the time of incident, but 9 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 he admits that both the crimes were registered under Section 324 IPC. According to him the scene of offence is a public cement road running towards East to West. He further admits that in the rough sketch vide Ex.P11 the section of law was mentioned as Section 302 IPC.
12. Learned Addl. Public Prosecutor further submits that there is absolutely no delay in giving the report. According to him, the incident took place in the evening of 14.05.2008 and immediately thereafter, P.W.1 was taken to the hospital. Further, as the condition of the deceased was precarious, much attention was given for his treatment and for that reason, a report was lodged on the next day morning when Police went to the hospital and examined P.W.1. According to him, though the statement was recorded at 11.00 AM in the morning, the Crime was registered at about 4.30 P.M which reached the Magistrate on the next day morning. Relying upon a judgment of Hon'ble Supreme Court in Palani vs. State of Tamil Nadu reported1, he would contend that when the evidence of injured witnesses is available on record lapses on the part of investigating agency in registering the crime with delay and sending it to the Court, is not fatal to the case of the prosecution. He also relied upon a judgment of the Supreme Court in support of his plea, that even if the motive is weak, the same does not create any doubt on the prosecution case when there are injured eye witnesses, eye 1 2020 (16) SCC 401 10 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 witnesses and independent eye witnesses, who are wholly reliable.
13. Learned Addl. Public Prosecutor further submits that the delay must have also occurred because of transfer of F.I.R. from the other Police Station for want of jurisdiction. Since there is enough evidence to show that it is not a case and counter and that there are two incidents one at the Auto Stand and another at the house of deceased, he would submit that the argument of learned Senior Counsel for the appellant that it is a case and counter, cannot be accepted. In support of his plea, he also relied upon a judgment reported in C. Muniappan and others vs. State of Tamil Nadu 2. In other words, his argument appears to be that in this case, there are eye witnesses out of whom two are injured witnesses and five are eye witnesses and P.W.6 is an independent eye witness, whose evidence cannot be doubted.
14. In reply, Sri T. Pradyumna Kumar Reddy, learned Senior Counsel would contend that the evidence of P.W.16 itself would disclose that the incident was on a cement road, which is not the case of prosecution at any point of time. He further submits that there is enough material on record to show that not only the deceased was admitted in hospital on 14.05.2008 but also A.1 till 16.05.2008. Having regard to the above, and in view of the evidence of P.W.8, he would submit that there is any amount of doubt with regard to manner in 2 2010 (9) 5 SCC 567 11 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 which the incident took place. In other words, his argument appears to be that when a doubt is created with regard to the genesis of the incident, benefit of doubt should be extended to the accused.
15. The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt?
16. As stated earlier, the learned Senior Counsel for the appellant mainly submitted that it is a case and counter and as such, the prosecution has not come forward with the true version of the case. He placed reliance on the injuries sustained by the accused in support of his plea. The second ground raised by learned counsel for the appellant is that the prosecution has not explained the injuries on the accused and as such, the genesis of the incident is suppressed.
17. As seen from the record, there are two incidents and two different crimes came to be registered. The first incident took place near the Auto Stand wherein the deceased herein is said to have attacked the accused, who sustained injuries, basing on the report given by the injured in the said case, a case in Crime No.54 of 2008 came to be registered. The injured was shifted to Government Hospital, Anantapur where he took treatment along with P.W.1. The same is evident not only from the evidence of the Investigating Officers but also from the defence documents. The second 12 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 incident took place at the house of the deceased, where A.1 to A.7 attacked the deceased. In respect of this incident, a case in Crime No.53 of 2008 came to be registered. As seen from the record, registration of two crimes and the accused sustaining injuries came to be elicited even in the cross- examination of the Investigating Officers, by the learned counsel for the accused. Therefore, the question of suppressing the injuries sustained by the accused does not arise. Definitely, things would have been different had it been a case and counter. Hence, it cannot be said that there was any suppression of the genesis of the incident.
18. The third ground raised by learned counsel for the appellant is the delay in lodging the report by the prosecution party. It is not doubt true that there was some delay in getting F.I.R. registered, the reason given by the prosecution is that P.W.1 the injured, was admitted in the hospital with injuries and thereafter the other witnesses namely P.Ws.2 to 4 accompanied the injured deceased to Government Hospital, Kurnool, because of which, a report could not be given immediately. Further, P.Ws.2 and 4 were more concerned with the injured at that point of time. Subsequently, on an intimation received from the hospital, the Police went to the hospital and recorded the statement of the injured. After recording the statement of P.W.1, there was some delay in getting the F.I.R. registered and sending the same to the Court. This in our view is not fatal to the case on hand. It is 13 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 not a faction case where there is a possibility of false implication due to disputes in the village. It was not even suggested to the Investigation Officer. Here is a simple case where one incident took place in the Auto Stand 10 minutes earlier and thereafter A.1 to A.7 came towards the house of the deceased and attacked the injured/deceased and two inmates who came out. At this stage, it would be useful to refer to the judgment of Hon'ble Supreme Court in C. Muniappan and others [cited 2nd supra] wherein it was held as under:-
55. There may be highly defective investigation in a case.
However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. (Vide Chandrakant Luxman v. State of Maharashtra [(1974) 3 SCC 626 : 1974 SCC (Cri) 116 : AIR 1974 SC 220] , Karnel Singh v. State of M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977] , Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517 : 1998 SCC (Cri) 1085 : AIR 1998 SC 1850] , Paras Yadav v. State of Bihar [(1999) 2 SCC 126 : 1999 SCC (Cri) 104] , State of Karnataka v. K. Yarappa Reddy [(1999) 8 SCC 715 : 2000 SCC (Cri) 61 : AIR 2000 SC 14 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 185] , Amar Singh v. Balwinder Singh [(2003) 2 SCC 518 : 2003 SCC (Cri) 641] , Allarakha K. Mansuri v. State of Gujarat [(2002) 3 SCC 57 : 2002 SCC (Cri) 519] and Ram Bali v. State of U.P. [(2004) 10 SCC 598 : 2004 SCC (Cri) 2045] )
19. In view of the judgment referred to above, latches on the part of the investigating agency should not in any way create any suspicion with regard to the incident in question, more particularly when participation of A.2 in the commission of offence was spoken to by two injured witnesses and three eye witnesses to the incident, and which gets corroboration in all respects from the medical evidence.
Coming to the evidence of injured and eye witnesses:
20. The evidence of P.W.1 shows that on 14.05.2008 at 6.00 P.M. due to the previous enemity, A.1 and his brother Venkatesu were quarrelling. Then he chastised both of them brought the deceased home and instructed his sister-in-law to warn the deceased. Ten minutes after returning home, A.1 to A.7 came to the house of deceased, formed into a group, and uttering words in filthy language, beat the deceased with a stick on his head causing a bleeding injury, for which the deceased fell down. When P.W.1 interfered, A.1 beat him with a stick on his left hand fingers, right shoulder and on his right elbow.
21. The evidence of P.W.2, who is the father of the deceased, would show that on the date of incident, A.4 beat him with a stick on his left hand wrist and caused fracture and also beat 15 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 him on his right shoulder, and right elbow, pursuant to which, he fell down. P.W.3 in her evidence deposed that she saw A.2 beating her husband with a stick on his head, A.6 beating her husband with a stick on his left hand, causing fracture to his left hand finger. When, P.W.1 interfered, A.1 beat P.W.1 with a stick on his left hand, right shoulder and right elbow. When P.W.2 interfered A.4 beat him with a stick on his left hand, causing a bleeding injury. He also beat him on his right shoulder and right hand. Then, A.1 to A.7 surrounded P.Ws.1 and 2 and beat them with sticks.
22. P.W.4 in his evidence deposed that on the date of incident i.e., on 14.05.2008, he saw A.1 to A.7 infront of their house, where A.2 uttered in filthy language and hit the deceased with a stick on his head causing injury. Thereafter, A.6 beat the deceased on his left hand fingers and A.1 with a stick on his left hand fingers, right shoulder and on his right elbow with a stick. When, P.W.2 interfered, A.4 beat P.W.2 with a stick on his left hand fingers. Thereafter, A.1 to A.7 surrounded the deceased, P.W.1 and P.W.2 and beat them with sticks indiscriminately.
23. The evidence of P.W.5 also shows that on the night of 14.05.2008 at 8.00 P.M., some persons came and informed him that the deceased was beaten by some persons of Siddarampuram village and he was brought to GGH, Anantapur. He came to GGH, and saw the deceased with 16 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 head injury and P.Ws.1 and 2 also with injuries. The evidence of P.W.6 would reveal that on 14.05.2008 at about 6.10 P.M., while he was standing infront of his house, A.1 to A.7 came near to the house of the deceased, armed with sticks. A.2 beat the deceased with a stick on his head by using force, pursuant to which the deceased raised cries and fell down. When, P.W.1 interfered to rescue his brother, A.1 beat P.W.1 with a stick on his left hand fingers, right hand elbow and right shoulder. When, P.W.2 interfered, A.4 beat P.W.2 with a stick on his left hand as a result of which, he fell down.
24. Though, all the witnesses were cross-examined, but nothing useful came to be elicited to discredit their testimony. As stated earlier, the said oral evidence of P.Ws.1 to 6 gets corroboration from the medical evidence [P.W.13], who conducted Post Mortem examination on the body of the deceased with regard to injuries sustained by the deceased. He categorically deposed that on 16.05.2008, he received a requisition from the Inspector of Police, Anantapur Circle and conducted Post Mortem examination over the dead body of the deceased and found both external and internal injuries on the body of the deceased. He opined that the cause of death was due to fracture of skull and intracranial haemorrhages due to head injury. Ex.P7 is the Post Mortem examination. P.W.12 examined P.Ws.1 and 2 and issued Ex.P5 and Ex.P6 the wound certificates. From the evidence of these witnesses, 17 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 it is clear that the presence of P.Ws.1 and 2 stands established at the scene of offence. Further, they are natural witnesses whose presence cannot be doubted even otherwise. Hence, we hold that evidence of P.Ws.1 and 2, the injured eye witnesses, can be believed to establish the participation of A.2, A.4 in the commission of offence.
25. In Bimla Devi vs. Rajesh Singh and another3 , the Hon'ble Supreme Court while dealing with the evidence of eye witnesses, the injured witnesses and the delay in lodging of F.I.R. observed as under:-
9. The above two arguments were also pleaded before the trial court as well as the High Court, and both the courts below denied the averments and reasoned that the two errors did not prejudice the investigation. Moreover, the prosecution case was supported by six strong and cogent eyewitnesses, which was further corroborated by the medical evidence and the recovery memos. The High Court perused the testimony of PW 9, who is the investigating officer, wherein it was deposed that he recorded the statement (fardbeyan) at 4.30 p.m., thereafter he went to the place of incident and the body of deceased Kashi Nath Tiwary was recovered from the well after one hour of his arrival, and the inquest and other proceedings were conducted.
Hence, he stated that the FIR was lodged at about 9.00 p.m. The witness further stated that the FIR was sent to the Magistrate through Special Messenger on 22-12-1998. Although it is true that delay in sending the FIR to the Magistrate can vitiate the investigation, but it is settled position that a cogent reasoning can override this procedural lacunae. It is an accepted fact that there was a delay of one day in sending the FIR. However, no motive in manipulating with the FIR was proved. The prosecution case is strongly backed by testimonies of the six eyewitnesses who have testified the incident in almost 3 (2016) 15 SCC 448 18 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 similar terms. A procedural lapse in not sending the FIR promptly, did not prejudice the present case.
26. In Abdul Sayeed vs. State of Madhya Pradesh 4, the Hon'ble apex Court observed as under:-
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] , where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under :
(SCC pp. 726-27, paras 28-29) "28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694] this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC (Cri) 2013] a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy.
The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214] ). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below."
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon 4 (2010) 10 SCC 259 19 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
27. Though, the learned Senior Counsel for the appellant tried to contend that the incident did not happen as spoken to by Prosecution since there is no explanation as to how the injuries on the accused are not explained, but we are not in agreement of the same for the reason that there is enough evidence on record to show that the accused received injuries in a different incident which took place 10 minutes earlier near the Auto Stand, in respect of which a case in Crime No.54 of 2008 came to be registered. In respect of the said incident, the accused got admitted in the Government Hospital and a separate F.I.R. as stated earlier came to be registered against the accused. Therefore, the argument that the prosecution has suppressed the incident cannot be accepted.
28. The fourth ground raised by learned Senior Counsel for the appellant is that the scene of offence is different from what has been stated by the prosecution witnesses. In other words, his argument appears to be that while the evidence of the witnesses show that the incident happened inside the house, but the evidence of Investigating Officer and P.W.10 indicate that the incident occurred on a cement road. It is to be noted here that none of the witnesses deposed in their evidence about the accused entering the house and attacking the injured deceased and P.Ws.1 and 2. On the other hand, 20 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 the evidence is to the effect that they came towards the house of the deceased and attacked. By this it does not mean that the incident took place inside the house. On the other hand, the scene of offence panchanama as well as the evidence of panch witness show that the cement road where the incident took place is just outside the house of the deceased. Therefore, we hold that there is no discrepancy with regard to the scene of offence.
29. In so far as delay in registering the case and sending the F.I.R. to the Court, the same is not fatal in all situations. It depends upon the facts of each case. In the instant case, delay in lodging the report has occurred mainly due to P.W.1 being admitted in the hospital for the injuries sustained by him, while P.Ws.2 to 4 accompanied the injured/deceased to Government General Hospital, Kurnool.
30. In Palani's case [cited 1st supra], the Hon'ble Supreme Court while dealing with the delay in despatching the F.I.R., observed as under:-
19. Delay in setting the law into motion by lodging the complaint is normally viewed by the courts in suspicion because there is possibility of concoction of evidence against the accused. In such cases, it becomes necessary for the prosecution to satisfactorily explain the delay in registration of FIR. But there may be cases where the delay in registration of FIR is inevitable and the same has to be considered. Even a long delay can be condoned if the witness has no motive for falsely implicating the accused. In the present case, PW 1 had no motive to falsely implicate the accused. As pointed out earlier, PW 1 seeing her own son being brutally attacked, the 21 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 effect of the incident on the mind of the mother cannot be measured. Being saddened by the death of her son, it must have taken sometime for PW 1 to come out of her shock and then proceed to police station to lodge the FIR. The delay of two-
and-a-half hours in lodging the complaint and registration of FIR and the delay in receipt of the FIR by the Magistrate was rightly held as not fatal to the prosecution case.
20. The learned counsel for the appellant has further submitted that as per the prosecution case, the motive of the crime is misunderstanding between the families of the accused and deceased relating to a marriage proposal with respect to Vijayalakshmi's sister and deceased. It was submitted that the alleged motive is very weak and could not have been the reason for causing the murder of deceased Sankar.
31. Further, in the instant case, no questions were put to the Investigating Officer regarding the delay in despatching of the F.I.R. Dealing with the same, the Hon'ble apex Court in Anjan Dasgupta vs. State of West Bengal and others 5, held as under:-
23. The IO after receipt of the information of an offence by RT message had arrived at the scene at 1740 hours, which clearly proves the prompt commencement of the investigation.
The FIR was dispatched on 22-6-2000 which has also been accepted by the trial court. When no questions were put to IO in his cross-examination regarding the delay in dispatch, at the time of hearing, the accused cannot make capital of the said delay in forwarding the FIR. This Court in Rabindra Mahto v. State of Jharkhand [Rabindra Mahto v. State of Jharkhand, (2006) 10 SCC 432 : (2006) 3 SCC (Cri) 592] has held that in every case from the mere delay in sending the FIR to the Magistrate, the Court would not conclude that the FIR has been recorded much later in time than shown. It is only extraordinary and unexplained delay, which may raise doubts regarding the authenticity of the FIR.
5 (2017) 11 SCC 222 22 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012
32. In view of the above and having regard to the law laid down in the judgments of the apex Court referred to about, it can be said that the delay if any is not fatal to the prosecution case.
33. For the aforesaid reasons, the Criminal Appeal is dismissed. The conviction and sentence recorded in Judgment dated 26.09.2012 in Sessions Case No.394 of 2009 on the file of learned III Additional District and Sessions Judge (F.T.C.), Anantapur, against the appellant/A.2 for the offence punishable under Section 302 IPC is confirmed.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR ___________________________________ DR. JUSTICE K. MANMADHA RAO Date: 04.03.2022 MS 23 CPK, J & Dr.KMR, J Crl.A.No.1244 of 2012 THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE DR. JUSTICE K. MANMADHA RAO CRIMINAL APPEAL NO.1244 OF 2012 (per the Hon'ble Sri Justice C. Praveen Kumar) DATE: 04.03.2022 MS