Criminal Appeal No. 1 of 2007 · High Court · 2010

Judgment

(per the Hon’ble Sri Justice D.S.R.Varma) Heard learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent.

2. Originally appellant is the 1st accused (hereinafter referred to as “A-1”) and the respondent is the State in the Sessions Case, before the trial Court.

3. This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, by A-1, is directed against the judgment, dated 19-12-2006, passed by the learned IV Additional District & Sessions Judge (Fast Track Court), Tirupati, in Sessions Case No.139 of 2006, convicting A-1 for the offence punishable under Section 302 of the Indian Penal Code (for brevity “IPC”).

4. The brief facts, which are necessary for proper disposal of the present Criminal Appeal, as per the prosecution case, are that there was some altercation with regard to the payment of chit money between the accused and one Shaik Mahaboob Saheb (hereinafter referred to as “the deceased”); that, on 26.05.2001, at about 8.00 pm., when the deceased asked A-1 for non-payment of the chit amount, he grew wild and tried to attack; that, however, they were separated by the intervention of some others; that, again, on 27.05.2001, when P.W.1 was proceeding along with the deceased, A-1 again threatened the deceased for being questioned by him about the chit money; that, again, he was rescued by the intervention of P.W.1 and others; that, at about 7.00 p.m. in the evening of 27.05.2001, when P.W.1 and the deceased were proceeding to their house and on the way when they went to a beedi shop to purchase beedies, A-1 came to them and stabbed the deceased as a result, he had fallen down and was taken to a Doctor-P.W.5 where he was declared as dead; that the body of the deceased was subjected to postmortem by P.W.11, who issued postmortem certificate, under Ex.P-7; that P.W.1 gave a report to the police and that after completion all the necessary formalities, police laid the charge sheet against A-1 (against whom the case was split up and disposed of already) for the offence punishable under Section 302 IPC and against A-2 under Sections 202 and 212 IPC.

5. When the charge under Section 302 IPC was framed, read over and explained to A-1 in Telugu, he denied the offence and claimed to be tried.

6. In order to substantiate its case, the prosecution examined P.Ws.1 to 13 and got marked Exs.P1 to P13, besides the Material Objects 1 to 6, on its behalf and on behalf of defence, none were examined, but Exs.D-1 to D-10 were marked.

7. The Court below, having considered the entire material, including the evidence, both oral and documentary, available on record, arrived at the conclusion that A-1 alone was responsible for the death of the deceased and accordingly convicted and sentenced him, as stated supra. Aggrieved by the same, A-1 has preferred the present Criminal Appeal.

8. Now, the only point that arises for consideration, in this Criminal Appeal, is as to whether the Court below was justified in convicting A-1 for the offence under Section 302 IPC ?

9. It is the contention of Sri C.Padmanabha Reddy, the learned senior counsel appearing for A-1, that in the earlier report, under Ex.P-1, made to the police by P.W.1, no mention was made about the presence of P.W.2 or about her witnessing the occurrence. On the other hand, L.Ws.9 and 11 specifically mentioned about the witnessing of the occurrence, but they were not examined. In other words, the person whose name was not mentioned in the First Information Report was cited as eyewitness. The persons who are mentioned as eyewitnesses, at the earliest point of time, were not examined. Therefore, the case of the prosecution did not proceed in the manner in which the charge sheet was filed, however, the case was tried to be made out. Consequently, it is contended that the name of P.W.1 did not find place in the inquest report. This fact suggests that P.W.1 was not present at the time of commission of the offence.

10. The learned Public Prosecutor, appearing for the State, sought to sustain the conviction and sentence, imposed by the trial Court, through the judgment under challenge, and prays to dismiss the present Criminal Appeal.

11. In this connection, what is to be examined now is as to whether the evidence of P.Ws.1 and 2 or either of two witnesses can be accepted in order to fix the conviction on A-1.

12. It is necessary to examine the evidence of P.W.1, who stated that, on 26.05.2001, there was an altercation with regard to the payment of chit money; that A-1 grew wild on being questioned by the deceased; that, in that connection, the same had erupted again on 27.05.2001, during day time, however on both the occasions, with the intervention of other persons, A-1 and the deceased were separated; that, however, on the way to their home, the deceased along with P.W.1, who is none other than his brother, went to a beedi shop and, while returning from the beedi shop, he was attacked by A1 and was stabbed twice on the chest and back, which resulted in his death, as was declared by P.W.5 initially.

13. From a perusal of the cross-examination of P.W.1, nothing much could be elicited to disprove the veracity of the testimony of P.W.1.

14. What is to be considered now is about the presence of P.W.1 at the time of attack upon the deceased by A1.

15. The learned senior counsel, appearing for A-1, pointed out that if really P.W.1 was present at the time of commission of offence, his name would have been mentioned in the inquest report, but no such mention was made in the inquest report, which means P.W.1 has really not accompanied the deceased when the offence took place.

16. In this regard, what is to be remembered is that P.W.1 alone gave the First Information Report, under Ex.P-1, at the earliest point of time i.e., almost immediately after the commission of offence at 7.00 pm., in the evening, on 27.05.2001, without loss of much time. In such a situation, it is difficult to say that merely because during the course of inquest if the name of P.W.1 is not mentioned that does not mean that P.W.1 was not present at the time of offence at all. Furthermore, the very purpose of inquest is only to record their prima facie reason or cause of death. The other details are secondary. Except the cause of death, of course, even the said cause of death, which was found prima facie, may not necessarily be conclusive unless and until the same has been testified by the Doctor after proper examination by way of postmortem. Therefore, mere non-presence, even if there is any, of P.W.1 does not weaken the case of the prosecution.

17. It is to be further seen that the name of P.W.1, in fact, was found in the inquest report but did not find place in column No.15. Therefore, ex pacie, such an omission can be termed as ‘procedural deviation’, which is very minor in nature and not capable of emaciating the case of the prosecution.

18. Therefore, there is nothing on record which is capable of shattering the testimony of P.W.1.

19. Coming to the other eyewitness-P.W.2, it is to be seen that she deposed that the deceased was her father-in-law and that he came to the house and instructed her to arrange hot water for his bath and, in the meanwhile, he went outside to purchase beedies. Then she heard the cries of the deceased and ran out, but upon a careful scrutiny of the evidence of P.W.2, of course, we find some discrepancies in the following manner: Firstly, she stated that her father-in-law, the deceased, came to the house and then went outside to purchase beedies, whereas P.W.1 had stated that while they were coming back to the house they went to the beedi shop, purchased the beedies and while they were returning to home the fatal incident had taken place. This is to some extent divergent to the version of P.W.1. So far as the evidence of P.Ws.3, 4 and 7, who are not eyewitnesses concerned, they categorically deposed before the trial Court regarding the earlier incident between the deceased and the accused where the accused threatened and attempted to cause injuries to the deceased concern. Subsequent to that, P.W.1 and the deceased returned from the beedi shop and A1 intervened and caused injuries to the deceased. the deceased was stabbed, the occurrence, wherein

20. P.W.7, of course, stated that he was informed by P.W.2 that she saw A1 stabbing the deceased. Regardless of the nature of his deposition in this regard, particularly about P.W.1 witnessing the occurrence, the entire evidence of P.Ws.3, 4 and 7 cannot be simply brushed aside.

21. Even assuming, for any reason, that the evidence of P.W.2 is not coherent with that of the earlier version of P.W.1 in Ex.P1 and his testimony before the trial Court, her evidence is to be discarded, we are of the considered view that the testimony of P.W.1 cannot be shattered.

22. Some times, there might be some minor discrepancies in the evidence of the witnesses on all material aspects. The evidence of all the witnesses, particularly of eyewitnesses, need not necessarily be absolutely coherent and match with each other. What is to be looked into, particularly by the Court, is as to whether the version of the witnesses with its cumulative effect is to the extent of establishing the commission of the offence or not. In other words, minor discrepancies shall not defeat with the truth, which obviously appear to be correct and possible.

23. Coming to the medical evidence, it is to be seen that the Doctor, P.W.11, who conducted the postmortem, deposed that the deceased suffered the injuries as under:

1. An incised wound of 2 x ½ x 1 ½ cms present over left scapular region. 2. An incised wound of 2 x ½ x 1 cm present over front of the left shoulder. 3. An incised wound of 4 x 1 cm present below the left clavicle on probing probe is entering into thoracic cavity.

24. In view of the corroboration of the medical evidence with that of P.Ws.1 and 2, more particularly P.W.1, we do not find any reason to interfere with the finding recorded by the trial Court in convicting A-1 for the offence punishable under Section 302 IPC.

25. For the foregoing, we find no merits in this Criminal Appeal and the same is liable to be dismissed.

26. In the result, the Criminal Appeal is dismissed. __________________ JUSTICE D.S.R.VARMA ___________________ JUSTICE RAJA ELANGO 19th April, 2010 Tsy