GAJULA SURYA PRAKASARAO versus STATE OF ANDHRA PRADESH

Citation: [2009] 15 S.C.R. 789 · Decided: 10-11-2009 · Supreme Court of India · Bench: B. SUDERSHAN REDDY · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2009] 15 (ADDL.) S.C.R. 789 
GAJULA SURYA PRAKASARAO 
v. 
STATE OF ANDHRA PRADESH 
(Criminal Appeal No. 1038 of 2008) 
NOVEMBER 10, 2009 
A 
[B. SUDERSHAN REDDY AND J.M. PANCHAL, JJ.] 
, 
B 
Pena{Code,, 1860- ss. 302 and 307 - Murder and attempt 
to commit murder·.::.· Aocused attacked deceased with sharp 
edged weapon resulting in his death - Also attempted to kill 
deceased's wife by inflicting severe injuries - Conviction and 
C 
sentence ulss. 302 and 307 by courts below on basis of the 
evidence of eye-witnesses-wife and daughter of deceased- On 
appeal, held: Evidence of deceased's wife completely at 
variance with what she stated earlier - Evidence of daughter 
also vague -
Witnesses made improvements in their 
statements stage to stage - Material contradictions in their D 
statement not considered - No other acceptable evidence 
available based on which accused could be held guilty- Thus, 
order of conviction set aside. 
The question which arose for consideration in this 
appeal is whether the courts below were justified in 
E 
convicting and sentencing the appellant-accused ulss. 
302 and 307 IPC on basis of the evidence of the eye-
witnesses. 
Allowing th~ appeal, the Court 
"' 
HELD.: 1. In the instant case, there was no critical 
F 
evaluation of the evidence of PWs-3 and 4, and there was 
no consideration of material contradictions having crucial 
bearing on the veracity of the version given by PWs-3 and 
4. They went on making improvements from stage to 
stage which makes their evidence doubtful. It is under G 
those circumstances, the concurrent findings of the 
courts below is interfered with, in order to prevent the 
.. 
miscarriage of justice. The appellant is acquitted of the 
charges u/ss. 302 and 307 IPC. The conviction and 
sentences awarded against the appellant are set aside. 
789 
H 
790 
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R. 
A [Paras 17 and 18) [799-D-G] 
2.1. The deceased was a farmer and cultivating the 
~ 
· lands belonging to SR which was adjacent to the land of 
the appellant. The appellant was upset and developed a 
, grudge against the deceased over a property issue and 
s in the process committed the crime on the intervening·· 
night of 7th/8th April, 2002 at 2.00 AM. This is the motive 
suggested by the prosecution for the appellant 
committing the crime. The prosecution story itself shows 
that PW-3 and PW-4 very well knew the appellant and also 
.... 
C about the dispute with -r~gard to the purchase of the land. 
Yet this aspect is not stated by either of them and more 
particularly by PW-3 at any stage prior to her evidence in 
the court. [Para 8) [794-G-H; 795-8-D] 
2.2. The FIR was lodged by one PW-1 who is none 
other than a close relation .of the deceased at about 4.00 
D a.m. on 8th April, 2002. According to the FIR, two unknown 
persons entered into the hou$e and committed the crime. 
In his evidence he merely stated that he was informed by 
the villagers that the deceased was murdered, based on 
which he gave written report to the police and the police 
E reached at the scene of occurrence within half an hour and 
shifted the wife of the deceased to the hospital. It is in his 
evidence that he gave report to the police at the house of 
the deceased. He did not draft the FIR and he does noi. 
remember as to who drafted the same. In his cross-
examination it is stated by him that PW-3 was sent by him 
"' 
F to the hospital prior to the arrival of the police. [Para 9) [795-
D-H] 
2.3. It is evident that PW-3-wife of the deceased, was 
conscious and coherent to make her statement and rr.ade 
her statement in Exhibit P-21 in which not only she ti id not 
G mention the narJ1e of the appellant but positively ~cated that 
she was attacked by an unknown person aged about 20 
·years. Appellant even at the relevant time was of 50 years 
and was well known to PW-3. She did not explain as to and 
under what circumstances she made the statement in 
H Exhibit P-21 nor there is any explanation as to how she 
GAJULA SURYA PRAKASARAO v. STATE OF 
791 
ANDHRA PRADESH 
omitted the name of the appellant and described A 
somebody else to be the assailant. On the other hand, she 
went fo the extent-of stating that she did not know whether 
the Magistrate had recorded her statement in the house 
or in the hospital. [Para 12] [796-F-H; 797-A] 
2.4. When a person who has made a statement, may 
B 
be in expectation of death, is not dead, it is not a dying 
declaration and is not admissibl

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