The FIon'ble Supreme Court in Mallappa v. State of Karnatakal, held as under

Judgment

THE HONOURABLD SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE J. ANIL KUMAR CRIMINAL APPEAL No.1479 OF 2018

JUDGMENTi t,)1, j ltn'hl, Sri.lustitL' K.Str.L'ntltrt

1. The Appeal is filed by the appellant/Accused aggrieved by the judgment dated 17.11.2017, in S.C.No.52 of 2016, on the file of Principal Sessions Judge, Warangal. The appellant was convicted for the offence under Section 302 o1' IPC and sentenced to undergo life imprisonment

2. Heard learned counsel for the appellant and Sri Arun Kumar Dodla, learned Additional Public Prosecutor for re spondent-St ate.

3. P.W. I is the daughter-in-law of the deceased, Sammakka. P.W.2 is the soh. According to P.Ws.1 a.nd 2, on 02.05.20 15, deceased was sleeping outside. P.Ws.1 and 2 were sleeping inside the houde. They went inside the house aroun d 12' o i clock in th. miJnight. Within few minutes, P.Ws.1 arrd 2 heard the deceased's houts, they came out and saw the appellant fleeing from the scene. Then, they observed that the deceased had a cut rnJu on the right side of the neck which was profusely bleedi t She died in front of the house. when she was sleeping, o account of injuries. P.W. 1 went to the Police Iil 2 Station and 1od ed a complaint at 7:45 a.m., i.e., the next day, 03.O5.2O18" P.W. 14/Inspector of Police on receiving the I complaint, wedt to the scene of offence, where inquest I panchnama w conducted, clothes of the deceased were seized, and the evidence of witnesses were marked. Scene of offence panchn was drafted, which is Ex.P14. P.W. 14, thereafter apprehended the appellant on 06.O5.2015. Appellant I was interrogateld in the presence of independent witnesses, I P.W.B and L.W.l7. The appellant confessed to committing the I murder of ,h" dL."."ed and produced M.o.1/knife, with which the appellant allegedly attacked the deceascd. I

4. Having co cluded the investigation, P.W. 14 filed charge sheet.

5. Learned Sressions Judge mainly placed reliance on the evidence of P.W 1 to 3 and P.W. 12 who is an eye witness to the incident. Mai on the basis of their evidence, learned Is h, Sessions Judge l"o ncluded that the appellant, who bore grudge against the dec ased, had caused the injury, which resulted in her death. It is Ia dmitted that appellant is agnate to P.W. 1. tfr. *otlrrl as projected by the prosecution is that there were disputes appellant, sinc € in between the families of P.W.1 and the their childhood. Kecping in view, the said l l I I disputes, the a pellant believed that the deceased, Sammakka p was practicing orcery and she was responsible for the death of s I his son l i

7. P.Ws. 1 to 3 stated that in the night around 1 1:30 p.m., on I

02.05.2015, while the deceased was sleeping outside the house, on a cot, they heard her shouts. Then, P.Ws.1 to 3 came out I l and saw the aplellant running from the house. According to I P.W.3, she identilled the appellant in the moonlight. p.W.l2 is l the eye witness to the incident. He stated that he r,vent to the shop of P.W.9 to purchase tea powder. Mear-rwhile, the appellant went there and asked for some items, for rvhich P.W.9 refused to give.l For the said reason, the appellant quarreled i with him. P.W.12 returned home after purchasing 1ea powder. When he was sleeping on a cot, outside his house, he observed the appellant in the moon light, coming with a knife near the deceased and stabbing her. P.W. 12 then approached near the deceased an<l jsaw the appellant running away from the deceased. Immediately, P.Ws.1 to 3 came running to the scene. Further, the appellant threatened P.W. 12 to stop by gesturing at him and ran away. B. P.W.9 stated that, on the said day, around B p.m., the appellant quarrbled with him regarding some groceries. The 4 appellant grew angry and came with an axe to assault him. Some people gathered, mother of the appellant came there and took the appellant away. P.W.9 took the axe and kept it in his I I house.

9. Though ttl e incident happened at 12' o clock midnight, P.Ws.1 and 2 sthted that they were outside the house till 11:3O I p.m. and theredfter, they went inside the house and slept. No 1 reason was givbn as to why P.Ws.l and 2 went inside the I house, though t[r.y -.." sleeping besides the deceased. P.W.3 stated that she lako witnessed the appellant running from the i scene. P.W.12 is an eye witness to the assault by the appellant. I However, neit er the name of P.W.3, nor P.W. 12, was ,l I mentioned in t Ihe complaint which was given after 7% hours of the incident. If P.W.12 had made any attempt to catch hold of the same would have found a place in the the appellant, complaint I Ne ith.. P.W.l, nor P.W.2 spoke about trying to catch hold. of thb appeltant. As seen from the sketch, houses of I the deceased, afpellant, and P.W.9 are side by side. P.W.1 did I I not make any adtempt to go near the house of the appellant, nor tried to catch him. The said conduct creates doubt in the I background of the delay in lodging the complaint. l I 1

10. The moti is a double edged weapon. The motive as l projected by thcl prosecution is that the appellant suspected the deceased of practicing sorcery, resulting in the death of the appellant's son.l Further, P.W.1 states that since childhood, there were diffelences with the appellant. In the background of I delay in lodginglthe complaint, and names of p.Ws.3 :rnd l2 not being mentioned in the complaint, there arises any amount of I doubt regarding the actual manner in which the incident had I taken place and the witnesses projecting the present version I I implicating the appellant. I I 1 . The FIon'ble Supreme Court in Mallappa v. State of Karnatakal, held as under: "In our opihion, however, the evidence of pW5 cannot be accepted irl fuU. There are contradictions in pW5,s deposition a! regards the P.W.5 having seen Mailappa at the spot of occurrence. She stated in her cross examinationl which we have referred to earlier, that by the time she sar* the accused persons, they were in front of the house of Devcndrappa. That is the evidence of pW3 zrs also PW6. We cdn ignore the contradictions in her evidence concerning l.esence of Honappa at the pO on the night of occurrence bf the incident as the same not having any material impact on the case. But her contradictory statements as regards when and where she saw the I '(2021) 5 scc s72 L I 6 appellant ar d as to whether she saw him committing the act of assault is of significance. In her examination in chief, l I t" she deposedlthat when she opened her eyes on hearing the sound "dhup", she saw Al (i.e. the appellant) with a club assaulting Jn tfr" head of her husband, whereas A2 (Veerappa) ivas standing beside him. But as we have already ob$erved earlier, she stated in her cross examinationlthat by the time she woke up, injury had been caused. Shelclaimed to have had seen the accused in front of Devendrafpa's house. This part of her deposition in her ..o"" ."u-iJlation is otherwise compatible with rest of her statements rLaae in cross examination. In this perspective, oni-y one codclusion is possible and that is she was not a witness to Jctual act of assault. She'is the widow of the deceased ,ittlm a.rd deserves to be considered with an element of tompassion. But as a witness, she does not inspire confidence." I I

72. In Raje an And Another v. State of Kerala2, the Hon'ble Suprem t I Court held as under: i l I "15. As fearbd by the learned counsel for the appellants, the possibility of subsequent implication of the appellants as a result of afterthought, may be due to political bitterness, bannot be ruled out. This fact is further buttressed bv the delayed placing of FIR before lhe Magistrate, fion-satisfactory explanation given by the Police Officer regalding the blank sheets in the Ex. P30 counter foil of the FIR and also by the closely written bottom part of t" I I I (2003) 3 scc 3ss '? I I I I 7 Ex.P1 staternr:nt by PW 1. All these factual circumstances read with t}]e aforementioned decisions of this Cou rt tead to the conch.ision that it is not safe to rely upon the FIR in the instant Case. The delay of 12 hours in filing FIR in the instant .a"d i..espective of the fact the Police Station is situated onl, at a distance of I OO meters from the spot of another factor sufhcient to doubt the incident is l of FIR. Moreover, the Prosecution did not genuinenessi explain the delayed lodging of FIR u,ith the satisfactoril, l I Magistrate. l 16. This Court in Marudanal Augusti v. State of Keraia, , while deciding a case which involves a question of ctelayed dispatch ol ihe ptn to the Magistrate, cautioned that such delay would throw serious doubt on prosecution case, whereas in Arjun Marik v. State of Bihar, 1994 Supp. 2 SCC 372, it rvas remincled by this Court that: ".-.the for-u,aiding of the occurrence report is indispensable and absolntb and it has to be to forwarded with earliest despatch which intention is implicit with the use of the word 'forlhwith' occurring in Section 157 CrPC. which means prori'rptly and without any undue delay. The purpose and object is very obvious which is spelt out from the combined reading of Sections 157 and 159 CrPC. It has the dual pr-rrpose, firstly to avoid the possibility of improvelnent in the prosecution story and introduction of any distorted version by deliberations and consultation and le the Magistrate concerned to have a secondly to ] enab watch on thd prog ress of the investigation..." I

13. The Inspdctor of Police /P.W.74 failed to explain the reason for delay in FIR reaching the Court. FIR reached the ) I I I I l I I s t. Court rvith a d lay of nearly 10 hours and complarint/Dx.P. 1 was Iodged wi a delay of more than 7 hours. In the background of ere being dilferences between appellant and P.W. l's family, P.W.3 and P.W. l2 developing their versions during the co e of trial, and their names not being found in the complaint, it cannot be said that the . prosecution has succeeded in p.ll\rl ng its case beyond reas onable doubt.

14. Iior tlie s reason benefit of doubt is extcndecl to tl're appellant. C:,

15. Accord , the Crirninal Appeal is allorvccl. Since the I appellant is on ail, his bail bonds shall stand cancelled t) I I //TRUE COPY' Sd/- K. SRINIVASA RAO JOINT REGISTRAR SECTION OFFICER \) To 1 . The Principal Sessions Judge, Warangal (with records, if any) 2. The Station House officer, Bhupalpally PS, Jayshankar Bhupalpally District

3.TheSuperintendent,CentralPrison,CherlapallyJail,RangaReddyDistrict 4. Two CCs to the Public Prosecutor, High Court for the State of Telangana' Hyderabad [OUT]

5. One CC to Sri P Prabhakar Reddy, Advocate [OPUC] 6. Two CD Copies Vtugh \q-- / HIGH COURT DATED:2010212025 JUDGMENT CRLA.No.1479 of 2017 H1 ( c 9,i' q )32 I '/, t 5 PA R I,) L 25 2 c ALLOWING THE CRLA ac'@ W