Maloth Somaraju vs State Of A.P

"Reportable"

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1849 OF 2008

Maloth Somaraju ... Appellant

Versus

State of A.P. ... Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. Appellant Maloth Somaraju challenges the judgment of

the High Court whereby the High Court allowed the State

appeal challenging the acquittal by the Trial Court. He

was tried for the offence punishable under Section 302, IPC

on the allegation that on 15.05.1999 at about 2 a.m. at

night he committed the murder of his elder brother Maloth

Krishna (hereafter referred to as "deceased" for short) by

causing his death with an axe injuring his temporal region,

nose and face which ultimately resulted in his death.

The prosecution story in short conspectus

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Deceased was a worker in Singereni Collaries. He used

to go for his duty at about 12.30 p.m. at night every day.

On the fateful day, he did not go for his duty. At the

time when the incident happened, he was sleeping on his cot

along with one son. It is the prosecution case that

besides him was another cot on which his wife Heeramani

(PW-1) was sleeping along with another son. Besides these

two cots, there was another cot on which was one Haridas

(PW-9) who was the cousin of Heeramani (PW-1) was sleeping.

2. It is the case of the prosecution that at that time

suddenly the appellant came and assaulted Krishna which

incident was seen by Heeramani (PW-1) who raised cry which

attracted the neighbours who were mostly the relatives of

her husband including his parents, his brother, his sister-

in-law and cousins of the deceased. All his relatives are

Banjara by caste. The deceased was immediately carried in

an auto rickshaw to Singereni hospital where he was

declared as brought dead. On that Maloth Heeramani (PW-1)

had lodged a report before Kothagudem Police Station.

Since she was illiterate, Heeramani (PW-1) got scribed the

report by Rayala Sathyanarayana (PW-14) and submitted it to

Kothagudem police station at 6.30 in the morning. It has

come on record that the report was immediately forwarded to

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the concerned Magistrate who received it at 7.30 in the

morning. In this report Heeramani (PW-1) complained that

in the midnight she woke up her husband for answering the

call of nature. After that, she and her husband slept. As

they were talking to each other, her brother-in-law Maloth

Somaraju, the accused-appellant came from behind the house

with a sickle (Kota Kathi) and attacked her husband on his

left temporal, nose and under the nose due to which there

was heavy bleeding. She further suggested that she raised

cry and on hearing her cries, her father-in-law Balunayak

(PW-2), her mother-in-law, Maloth Bhikri (PW-3), elder

brother in law Amar Singh (PW-4), his wife Kausalya (PW-5),

her second brother in law Phool Singh (PW-6), his wife

Maloth Dwali (PW-7) came there. On seeing them, accused

Somaraju fled away. After that her husband was shifted in

the auto of Mohan Rao to Company Singereni main hospital.

However, the doctors there told that her husband was dead.

She then narrated that accused/appellant was addicted to

drinking and used to come to house and beat her in-laws and

was harassing them for which her husband had to pacify them

and about fifteen days back when the accused bit her in-

laws, her husband had beaten the accused and it was because

of this that he bore grudge against her husband and axed

her husband. The offence was registered and the

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investigating officer rushed to the spot, got executed

inquest Panchnama as also got drawn the map of the spot and

sent the body for autopsy. Autopsy was conducted by M.

Gopal Swamy (PW-16). Autopsy report is Exhibit P-19. The

autopsy was conducted at 11 a.m. in the morning. According

to the doctors, the approximate time of death was 8 to 10

hours before the autopsy. After the completion of the

investigation, the charge-sheet was filed. At the trial,

the prosecution examined as many as 20 witnesses and marked

31 documents. In his defence, the plea of accused is of

total deny. There was no defence evidence tendered by him.

The Sessions Judge acquitted the accused which acquittal

was challenged by the State by filing an appeal which

appeal was allowed convicting the accused of the offence

under Section 302, IPC and awarding sentence of life

imprisonment.

3. Shri Anand Dey, learned counsel appearing on behalf of

the appellant contended before us that the High Court had

committed an error in upsetting the verdict of acquittal

given by the trial Court. The learned counsel urged that

the Sessions Judge had taken a possible view and merely

because another view could be taken of the matter, the High

Court could not have converted the verdict of acquittal

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into that of conviction. The learned counsel strenuously

and painstakingly took us through all the evidence and

contended that Heeramani (PW-1) was the sole eye witness

and it was impossible for her to identify the accused as

admittedly she as well as the deceased were sleeping in the

courtyard and that was a new moon night and thereby there

was complete darkness. Learned counsel further argued that

there were number of suspicious circumstances in the matter

inasmuch as though her own cousin was sleeping on the third

cot, he did not support the prosecution when he was

examined as PW-8. In fact the learned counsel was at pains

to suggest that Heeramani (PW-1) had a definite motive to

falsely implicate the accused inasmuch as the sister of her

husband had married her brother and both her brother as

well as his wife had died unnatural death because of which

the relations between her family and the family of her

husband were strained. It was further argued that the

whole investigation was slipshod and casual inasmuch as the

investigating officer had not even sent the blood stained

clothes of the only eye witness for examination. He did not

even send the clothes which were blood stained. Learned

counsel pointed out from the record that though it was the

version of the witness that there were three cots in the

courtyard, when the investigating officer went there, only

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one cot was found. The investigating officer did not even

bother to seize the cot which was blood stained. That

apart, the learned counsel pointed out that there were

serious discrepancies in the matter as the scribe of the

FIR, Rayala Sathyanarayana (PW-14) had suggested that he

had written the report at about 9-9.30 a.m. According to

the learned counsel, by then, her relations and, more

particularly, Bhukya Dhalsingh (PW-13) had come and,

therefore, there was every possibility that the relatives

had persuaded her to falsely implicate the accused on

account of the strained relations. The learned counsel

also pointed out that it had come in the evidence that the

Heeramani (PW-10) was in fact sleeping inside the house and

outer door was chained from outside and in fact it was only

after the said door was opened by her father in law, who

come immediately after the assault, that she came out and,

therefore, it was impossible for her to see the accused.

In the FIR, she had never referred to any bulb and that she

had made the improvement regarding existence of a bulb/

source of light only in her cross-examination. Learned

counsel, therefore, urged that if all these suspicious

circumstances were viewed in favour of the verdict of

acquittal, the High court should not have upset the verdict

merely because some other view favouring the conviction was

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possible.

4. As against this, Shri I. Venkatanarayana, learned

senior counsel appearing on behalf of the State very

strongly supported judgment of the High court and contended

that though the house of the deceased was in the village,

it was right on the road, and therefore, there was a

possibility of the street lights being there. The learned

counsel argued that the evidence of Heeramani (PW-1) is

natural evidence as she could not have been elsewhere when

the incident occurred. Her presence, therefore, was

absolutely natural. He also pointed that her version is

confirmed as she had taken the name of the accused barely

in 3-4 hours after the incident, in her FIR. Considering

that she was an illiterate lady there was no question of

her falsely implicating the accused. The learned counsel

pointed out that her own relations from her father's side

could not have been present at 6.30 a.m. as they are the

residents of the other village. He further pointed that

the investigating officer had given the full explanation as

to why he did not seize her blood stained clothes. As

regards the cots, the explanation given by him was that it

was possible that the cots were removed for being cleaned

as admittedly there was huge amount of blood which was

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clear from the fact that even the earth became blood

stained. The learned counsel further pointed out that the

version given by her father-in-law about the door being

closed and chained from outside was obviously false as it

was not supported by any other witness and it was clear

that all the hostile witnesses who were the direct

relations of the accused had the sole intention to save the

accused. The learned counsel supported the judgment of the

High Court saying that no other view was possible on the

basis of the evidence led. He pointed out that even

assuming there was darkness, Heeramani (PW-1) could not

have committed mistake in identifying her own brother-in-

law who was barely 2-3 feet from her when the incident

occurred. He pointed out that the prosecution had proved

all the contradictions brought out in the cross-examination

by the Additional Public Prosecutor of the hostile

witnesses. As regards the discrepancy in the FIR regarding

its timing, the learned counsel pointed out that if the

copy of the FIR reached the Magistrate as early as 7.30 in

the morning and it was not expected that an illiterate lady

like Heeramani (PW-1) to have necessary intention to

falsely implicate the accused. It is on the basis of these

conflicting claims that we have to see whether the High

Court was justified in upsetting and convicting the accused

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for the offence of murder.

5. The law dealing with the judgments of acquittal is now

settled. There can be no two opinions that merely because

the acquittal is found to be wrong and another view can be

taken, the judgment of acquittal cannot be upset. The

appellate Court has more and serious responsibility while

dealing with the judgment of acquittal and unless the

acquittal is found to be perverse or not at all supportable

and where the appellate Court comes to the conclusion that

conviction is a must, the judgment of acquittal cannot be

upset. We have to examine as to whether the High Court,

while upsetting the acquittal, has taken such care and it

is quite clear from the High Court's judgment that the High

Court has certainly taken that care.

6. The High Court has wholly relied on the direct

testimony of Heeramani (PW-1) and has carefully examined

her evidence threadbare. Firstly, the High Court has

correctly found that she had a close relation with the

accused who was her real brother-in-law and she was not

expected to commit any mistake in identifying him. The

High Court has correctly observed that she would certainly

be interested in naming the culprit since she had lost her

husband. The High Court has rightly found that she was a

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natural witness and her presence in her own household was

also absolutely natural. Her version that she woke up her

husband to attend the call of nature is the most natural

version and that has been specifically stated in the first

information report which was filed barely within 4 - 4=

hours after the incident. The High Court refuted the

defence version that she could not have identified the

accused because of the darkness on the basis of the theory

of the bulb, introduced in the cross-examination. Very

significantly, she had not spoken about her having lighted

the bulb, in her examination-in-chief; however, in her

cross-examination, when it was suggested to her that there

was no power during that night, she specifically refuted

the suggestion and then asserted that she had switched off

the bulb before going to the bed and had switched on the

same after she had awakened to attend the call of nature.

This theory of her switching on the bulb, having been

introduced in the cross-examination, becomes all the more

significant. The High Court, therefore, accepted her

version that she had put on the bulb and had not switched

it off after she and her deceased husband returned to the

bed after answering the call of nature. Therefore,

whatever doubts could have been raised because of the night

being a new moon night and the prevalence of darkness on

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the spot, were also got dispelled by the defence by its

cross-examination. The High Court has also considered the

contention raised on behalf of the defence that the accused

could not have inflicted the injuries on the face of the

deceased and, more particularly, front part thereof, if

after answering the call of nature, both were talking to

each other, meaning thereby that the deceased was in a

sitting position. The High Court has pointed out through

the evidence of Heeramani (PW-1) that the deceased was in

the lying position and it is on that basis that the High

Court has rejected the defence theory and upheld the

evidence of Heeramani (PW-1). The High Court has also

found that there could not have been any motive on the part

of Heeramani (PW-1) to falsely implicate her husband's

brother. The defence theory was that the sister of the

deceased was married to her brother and her brother had

committed suicide and in fact Heeramani (PW-1) was holding

the accused to be responsible for the suicide. There being

no support to this theory in evidence, the High Court has

chosen to ignore the same and in our opinion, rightly. The

witness was not cross-examined in respect of the

controversy regarding the number of cots. She, in her

evidence, had claimed that there were three cots and she,

her husband and two sons were sleeping on the two cots,

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whereas the third cot was occupied by her cousin. Relying

on the sketch (Exhibit P-30) drawn by the investigating

officer as also on the photographs, it was suggested that

only one cot was found. The High Court has rejected this

theory that the sketch (Exhibit P-30) which is the sketch

drawn by the investigating officer was admissible in

evidence. The High Court has found that even if it was

held to be admissible, admittedly, the sketch was drawn by

11.30 am and, therefore, the possibility of the two other

cots, which had no signs of any blood or any other material

evidence having been found, could not be ruled out. Even

before us, Shri Anand Dey, learned counsel appearing on

behalf of the appellant very strenuously argued on the

aspect of the cot as well as the position of the deceased

and the location of the injuries on the face of the

deceased. We are quite satisfied by the reasoning given by

the High Court to reject the claim of the defence in this

behalf. Similar is the situation regarding her clothes

being stained with blood. It is an admitted position that

her clothes which were stained with blood were neither

seized by the investigating agency nor were they sent for

the chemical examination. The High Court accepted the

explanation of Sub Inspector M. Konda Reddy (PW-20) that

her clothes even otherwise could have stained with blood

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because she had carried the deceased in the auto rickshaw

to the hospital and, therefore, the clothes were not

material. We do not see any reason to reject this

reasoning of the High Court. Shri Dey, learned counsel,

very strenuously urged that it was a doubtful circumstance

and that in the absence of the blood-stained clothes, the

version of Heeramani (PW-1) could not be believed by the

High Court and by this Court. We do not see any reason to

accept the argument by the learned counsel.

7. Heeramani (PW-1) was thoroughly cross-examined and

nothing could be brought out in her cross-examination which

would bring her testimony into dark. On the other hand,

the theory of switching on the bulb was introduced by the

defence in her cross-examination. What impresses us most

about the evidence of this witness is the fact that she

lodged the FIR barely within 4-4= hours of the incident.

She is an illiterate lady, which is clear from the thumb

mark on the FIR. It must be noted that after the incident

which took place at 2 O' clock at night, the deceased was

taken by her to the hospital. It has come in the evidence

of this witness that immediately after the incident, her

father-in-law Balunayak (PW-2), her mother-in-law Maloth

Bhikri (PW-3), Phool Singh (PW-6), her other brother-in-law

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and Dwali (PW-7), wife of Phool Singh (PW-6) had rushed to

the spot and then the deceased was carried to the hospital.

It is obvious that she alone could not have carried her

husband to the hospital and she must have been accompanied

by the relatives on her husband's side. After her husband

was declared dead by the hospital authorities, she

straightaway went to the police station and lodged the FIR

at 6.30 in the morning which is clear from the evidence of

Sub Inspector M. Konda Reddy (PW-20) as also from the FIR

which we have seen ourselves. What impresses this Court

most is the fact that a copy of the FIR was sent to the

Magistrate almost immediately and it was received by the

Magistrate at 7.30 in the morning. It was urged by Shri

Dey, learned counsel, that this FIR was scribed by Rayala

Sathyanarayana (PW-14) as per the dictation of Heeramani

(PW-1) and that the same was scribed near the police

station. The learned counsel invited our attention to the

evidence of this witness where he has claimed that he

scribed the FIR (Exhibit P-1) at about 10 a.m. It has also

come in the evidence of this witness that the distance

between the police station and the hospital is about 2 Kms.

and the distance between the police station and the spot of

occurrence is about 3 Kms. The learned counsel, therefore,

very vehemently argued that the theory that the FIR was

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lodged at 6.30 am has to fall on the ground of evidence of

this witness. The argument is absolutely incorrect. True

it is that the witness had stated that he scribed the FIR

at 10' o clock in the morning; however, Sub Inspector M.

Konda Reddy (PW-20) has claimed that he received the FIR at

6.30 a.m. on 15.5.1999, on the basis of which he took up

the investigation. Men may lie, but the circumstances and

the documents don't. The copy of the FIR is seen by us

which specifically mentions the time of recording of FIR

6.30 a.m. Further, the receipt of this FIR by the

Magistrate at 7.30 a.m. would obviously put an end to the

theory that the FIR was written by Rayala Sathyanarayana

(PW-14) at 10 O' clock in the morning. It has also come in

the evidence that the inquest on the dead body was itself

held between 7 a.m. and 9.30 a.m. in presence of Banothu

Srinivas (PW-15) and M. Gopal Swamy (PW-16). Had the FIR

been written at 10 a.m., the inquest held between 7 a.m.

and 9.30 a.m. would never have been possible. We see no

reason to disbelieve the inquest report (Exhibit P-21).

The version of Sub Inspector M. Konda Reddy (PW-20) is also

supported by the fact that he registered the offence and

mentioned in the proforma FIR the time as 6.30 a.m. We

have seen the evidence of Sub Inspector M. Konda Reddy (PW-

20) very closely on this aspect. There is no cross-

1

examination on this aspect excepting the bald suggestion

that the time of the offence and the time of the report

were manipulated to cover up the lapses on the part of the

investigating agency. We do not see any justification to

this bald suggestion, particularly in view of a clear

endorsement by the Magistrate that the FIR reached the

Magistrate at 7.30 a.m. Once this aspect of the timing is

proved, the same must clinch the issue and then it cannot

be imagined that Heeramani (PW-1) who was in the company of

her relatives on her husband's side, would falsely

implicate her own brother-in-law. The theory of false

implication is just not possible as the lady hardly had any

time to think about the false implication of her brother-

in-law. The lady is illiterate. She could not have just

created the theory that it was her brother-in-law who was

the culprit, unless that was the truth. On this backdrop,

when we read the FIR, it completely corroborates her

evidence.

8. The first information report given by this witness is

complete in all the details. She very specifically stated

that on that day her husband did not go for the duty and on

that night she and her husband and her cousin were sleeping

and she woke up her husband to attend the call of nature.

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Thereafter, she and her husband slept and while they were

talking to each other the accused came from behind and axed

the husband on his temporal, nose and under the nose. She

also spoke about her raising cries and her relatives,

namely, Balunayak (PW-2), her father-in-law, Maloth Bhikri

(PW-3), her mother-in-law, Amar Singh (PW-4), her elder

brother-in-law, his wife Kausalya (PW-5) and the other

brother-in-law Phool Singh (PW-6) and his wife Dwali (PW-7)

having come on the spot. She has also referred to the fact

that on seeing them the accused fled away. She has further

stated that after they brought the husband to the hospital

in the auto of one Mohan Rao, the doctor told them that her

husband was dead. She has also given reasons for the

accused to attack her husband. The name of scribe is also

to be found in the first information report. There were no

contradictions in her evidence. She has supported the

first information report fully.

9. It was stated by the learned defence counsel that the

scribe has given an altogether different time regarding

writing of the first information report and had stated in

the examination-in-chief as well as the cross examination

the totally different timing. Very strangely, it has come

in the cross examination itself by the defence that there

1

was rumour among the people gathered there that the accused

had killed the deceased. The first information report was

scribed by PW-14 Rayala Sathyanarayana who said in his

cross examination that it was at about 10 a.m. that he

scribed the FIR. The learned defence counsel very heavily

relied on this assertion and pointed out that though the

FIR is shown to have been registered at 6.30 a.m., in fact

it was scribed at 10 O' clock. We have seen the evidence

and we are of the firm opinion that his assertion that the

FIR was scribed at 10 O' clock cannot be correct,

particularly, in view of the registration of the offence at

6.30 a.m. in the morning and the copy of the FIR having

reached the Magistrate at 7.30 a.m. It is obvious that the

witness was falsely claiming the time of the FIR to be 10

O' Clock. Bhukya Dhalsingh (PW-13) is a resident of

another village called Jethyathanda. He is related to the

accused as well as Heeramani (PW-1). He could reach the

hospital at about 8 or 9 p.m. He asserted that Heeramani

(PW-1) and others were in the hospital and he was told by

Heeramani (PW-1) that the accused killed her husband. Of

course, this evidence would be of no consequence excepting

to the evidence of judging the behaviour of Heeramani (PW-

1) in revealing the name of the accused in his cross

examination by the defence. He was made to say that there

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was rumour among the people gathered there that the accused

had killed the deceased. The evidence of M. Jithendar

Reddy (PW-19) completely supports the theory that the FIR

was received at 6.30 a.m. and at the same time was

registered. He has also asserted that he sent the printed

registered FIR to the Additional JFCM, Mothagudem and also

marked the copies to concerned officers. There is

absolutely no cross examination of this witness excepting a

bald suggestion that the time of the report was

manipulated. All this evidence clearly shows that

Heeramani (PW-1) was a truthful witness. She stood her

cross examination extremely well.

10. It is not the quantity but the quality of the evidence

which clinches the issue in the criminal trial of this

type. The quality of the evidence of Heeramani (PW-1) is

very high and her evidence alone is sufficient for the

conviction of the accused. We will, however, consider the

evidence of other witnesses like Balunayak (PW-2), the

father of the deceased who claimed that he was called at 12

midnight or at 1 a.m. by his deceased son that somebody had

hit him and had broken his head. He claimed to have tied

the towel to the head of the deceased and gave him water.

At that time Heeramani (PW-1) and her children were

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sleeping in the house and the door was bolted from outside.

He claimed to have opened the door and it is then that

Heeramani (PW-1) came out. He was declared hostile and the

whole statement made by him being totally contradictory was

got proved by the Public Prosecutor.

11. He has of course failed to say anything about the

bolted door from outside and about his having woken up his

daughter in law i.e. Heeramani (PW -1) in his statement

before the police. Those are clear omissions. On the

other hand, the story told by him in contradictory portions

of his statement under Section 161, Cr.P.C. suggests that

he is not a truthful witness. This is apart from the fact

that he was extremely interested in saving the life of

accused who is his son and further this part of his

evidence was not supported by another witness including his

wife Maloth Bhikri (PW-3) and the other witness, namely,

Amar Singh (PW-4). Amar Singh (PW-4) significantly enough

deposed that on the night of death of Krishna he heard the

cries of Heeramani (PW-1) at 1.30. a.m. which is the time

told by Heeramani (PW-1) also. He was awakened by the

cries of PW-1 and not by the cries of the deceased as was

claimed by Balunayak (PW-2). That is the corroboration to

the evidence of PW-1 at least in respect of the time. It

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also wipes out the story of Balunayak (PW-2) that the

deceased had shouted. Significantly enough, no other

witness has stated to have been awakened by the cries of

the deceased. In his cross examination by the defence, it

has come that Heeramani (PW-1) had told him in the hospital

that the accused was the person responsible for the

injuries. Thus, Heeramani (PW-1) had told the name of the

accused even to this witness which is a relevant piece of

evidence. The evidence of Kausalya (PW-5) and Phool Singh

(PW-6) is of no consequence excepting to the extent that he

was present along with Amar Singh (PW-4) and his father

Balunayak (PW-2) in the hospital. He tried to improve upon

his story to the effect that Heeramani (PW-1) had expressed

to him as to who was the assailant. He was also declared

hostile. Therefore, his evidence would be of no

consequence. Similar is the story of Banoth Dwali (PW-7),

Vankudoth Haridas (PW-8), Maloth Haridas (PW-9), Maloth

Badru (PW-10), Maloth Devadas (PW-11) and Banoth Khalu (PW-

12). All these witnesses were declared hostile and their

evidence is of no consequence excepting to the extent

stated earlier. We have already referred to the evidence

of Bhukya Dhalsingh (PW-13) and Rayala Sathyanarayana (PW-

14) in the earlier part of the judgment. The panch

witnesses, namely, Banothu Srinivas (PW-15) and Malothu

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Balu (PW-16) have also turned hostile. When we compare the

evidence of all these persons who were the relatives of the

deceased, it is significant that it has nowhere come that

Heeramani's (PW-1) paternal relatives were there. In fact

she was surrounded by all the relatives of her husband and

yet she has named her husband's younger brother as the

accused in her FIR. We cannot imagine that she would be

falsely implicating the accused in presence of all the

relatives of her husband's side. Therefore, we are of the

opinion that Heeramani (PW-1) is a completely reliable

witness.

12. It was argued that in this case, the discrepancy of

the murder weapon was not properly proved and Shaik Gouse

(PW-17) was a stock witness who was a criminal. We also do

not propose to believe the evidence of discovery for the

reasons given by the Courts below; however, that would not

give any benefit to the accused whose presence on the spot

and whose act of hacking the deceased has been fully proved

by the evidence of Heeramani (PW-1). It was tried to be

argued by Shri Dey, learned defence counsel, that the

prosecution did not examine the two child witnesses. We do

not think that that could be viewed against the

prosecution. After all, they were of the tender age and to

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put them in the witness box would have been hazardous.

Besides the prosecution had put all the witnesses in the

witness box who had rushed on hearing the shrieks by

Heeramani (PW-1) and initially all those witnesses had

allegedly seen the appellant/accused. It is a different

affair that all of them turned hostile, obviously in order

to save the appellant/accused who was their own kith and

kin. We, therefore, do not view this to be a suspicious

circumstance.

13. The learned defence counsel Shri Dey also argued that

the weapon was different. While in the FIR, Heeramani (PW-

1) had said the weapon to be Kota Kathi (hunting sickle),

the learned defence counsel pointed out that the weapon

which was seized was an axe. We do not attach much

importance to this insignificant discrepancy as it may be

that Heeramani (PW-1) could not differentiate between the

hunting sickle and the axe, both of which are fitted with a

wooden handle. We have also some suspicious circumstances

mentioned in the judgment of the trial Court. The first is

regarding existence of bulb. The trial Court held that the

time of incident was not mentioned in the FIR (Exhibit P-

1), but ignored the fact that the subject of bulb was

brought in the cross-examination by the defence. The

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second circumstance is about Heeramani (PW-1) sitting on

the cot and talking with her husband and not mentioning

that the husband was also lying on the cot. In our

opinion, this circumstance is absolutely insignificant as

it has been shown that her husband was actually lying on

the cot as per her version in the Court. Third

circumstance is the possibility of their not talking. That

is absolutely insignificant and has to be ignored. It is

nothing unnatural. Fourth circumstance is the account of

darkness. We have already explained that circumstance that

even in the light that was available, it was quite possible

for Heeramani (PW-1) to identify, which identification was

further corroborated by her immediately naming the accused.

Fifth circumstance is about the position of the deceased

which we have already explained. This circumstance could

not be availed by the trial Court. Sixth circumstance is

about existence of only one cot near the fence at some

distance which was seen in photos. We have already

explained this circumstance to be insignificant as there

was possibility of removing the cots since the panchnama

took place at about 11 O' clock in the morning. Seventh

circumstance is about blood stained clothes of Heeramani

(PW-1) not being seized to establish her presence. We have

explained this circumstance that there was very good

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explanation given by the investigating officer. Eighth

circumstance is obviously incorrect, that being the delay

in giving the report. Ninth circumstance is the cousin of

Heeramani (PW-1) not supporting the prosecution. That by

itself cannot be a suspicious circumstance, particularly,

on the backdrop of the FIR having been registered at 6.30

a.m. and the same having been received by the Magistrate at

7.30 a.m. Tenth circumstance is about the relatives

completely turning hostile and not supporting the version.

This could not be held to be a suspicious circumstance for

the simple reason that they were all interested in the

accused. Eleventh circumstance is that there was no strong

motive to kill. The motive looses all its significance in

the wake of eye-witness's account. Twelfth circumstance is

that there were possibilities of some other persons

attacking the deceased. There is absolutely no basis for

this wild imagination. We have already referred to the

thirteenth circumstance about bill book and held it to be

not a suspicious circumstance. Fourteenth circumstance is

merely inferential. Fifteenth circumstance is that

Heeramani (PW-1) did not try to obstruct the deceased to

give him blow after first blow. That circumstance depends

upon the individual reaction. We do not attach any

importance to such a circumstance. Last circumstance is

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again about the cot. We do not think that that is any

relevant circumstance. Therefore, it is clear that the

trial court got swayed away by the so-called irrelevant

suspicious circumstances which resulted into the acquittal

of the appellant. The High Court has, in its judgment,

dealt with all the other aspects in detail and has also

considered the evidence without being influenced by all

these irrelevant and imaginary suspicious circumstances.

We wholly approve of the judgment of the High Court and

confirm the same. In the result, the appeal has no merits

and it is dismissed.

..............................J.

[V.S. Sirpurkar]

..............................J.

[T.S. Thakur]

August 17, 2011;

New Delhi.