Criminal Appeal No. 323 of 2007 · High Court · 2009

Judgment

(per the HON’BLE SRI JUSTICE D.S.R.VARMA) Heard learned counsel appearing for the appellant as well as learned Public Prosecutor, appearing for the respondent- State. 2. Appellant is sole accused in Sessions Case No.645 of 2004. 3. This Criminal Appeal is directed against the judgment, dated 10.05.2006, passed by the Sessions Judge, Warangal, in S.C.No.645 of 2004, convicting the accused of the offence punishable under Section 302 of the Indian Penal Code (for brevity “I.P.C.,”), and sentencing him to suffer imprisonment for life and also to pay a fine of Rs.500/, in default to suffer simple imprisonment for one month. the deceased lend some money

4. The case of the prosecution, in brief, is that the accused and one Akudari Chinna Rajaiah (hereinafter referred to as “the deceased”) were distantly related to each other; that the accused had suspicion that the deceased developed extra- marital relationship with his wife and bore grudge against him and was waiting for an opportunity to do away with the life of the deceased; that one week, prior to the date of offence, the accused asked purchasing a bull and the said request was rejected and, added to that, the bull which was intended to be purchased by the accused was purchased by the deceased himself; that this is allegedly aggravating factor for the accused to resort to this offence; that, on 02.09.2003, at about 7.30 p.m., when the deceased was at the toddy thope, the accused went there, armed with a spear and stabbed him indiscriminately, resulting in his death instantaneously; that P.Ws.3 to 5, who were present at the scene of offence, consuming occurrence; that P.Ws.1 and 2, the wife and mother of the deceased, respectively, ran to the scene of occurrence after hearing the cries of the deceased, by which time, the deceased was found dead; that since it was a village, the same could not be informed to the Police immediately and the information was passed on to the Police (P.W.10) by telephonic message on the next day i.e., on 03.09.2009 and that after receiving the said information, the Police visited the scene of offence and after completion of all the formalities, as required under law, charge sheet has been filed. toddy, had seen

5. When the charge framed against the accused for the offence under Section 302 I.P.C., was read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried.

6. In order to substantiate its case, the prosecution examined P.Ws.1 to 10 and got marked Exs.P-1 to P-13, besides M.Os.1 to 6, on its behalf. On behalf of defence, no oral evidence was adduced, but marked Ex.D-1. inasmuch as, they are eyewitnesses

7. The Court below, having appreciated the entire evidence, both oral and documentary, available on record, found the accused guilty of the offence punishable under Section 302 I.P.C., and accordingly, convicted and sentenced him, as stated supra. Aggrieved by the same, the accused has preferred the present Criminal Appeal. 8. The only question that arises for consideration, in this Criminal Appeal, is -- as to whether the Court below had properly appreciated the evidence on record in order to arrive at the conclusion that the accused committed the offence under Section 302 I.P.C? 9. In this regard, primarily, the evidence of P.Ws.3 to 5 is important, occurrence. The evidence of P.Ws.1 and 2 is circumstantial, inasmuch as, it is their contention that they came to the scene of offence soon after the commission of offence and nextly P.W.9 is the Doctor who spoke about the injuries and the cause of death of the deceased. 10. Ex.P-1 is the complaint given by P.W.1. Ex.P-3 is the confession and recovery panchanama. P.W.7 is the mediator for arrest and recovery of the weapon used for the commission of the offence. Ex.P-5 is the postmortem certificate and Ex.P-13 is the F.S.L. report. 11. The above is the evidence that has to be referred to in order to test the judgment rendered by the Court below. The other evidence on record, undisputedly, is not relevant to decide the present case nor is capable of changing the course of the decision of this Court. In Ex.P-1, P.W.1 stated that the accused developed grudge against her husband (deceased), when he rejected to lend money, as was sought by the accused, for the purpose of purchasing the bull, and keeping that in mind, the accused wanted to do away with the life of the deceased, as a consequence, when the deceased went to Peddapur Toddy shop, to consume toddy, the accused stabbed the deceased with the knife (barise) indiscriminately and that after hearing the cries of the deceased, she ran there and found him fallen on the ground. The accused fled away with the weapon and after some time the deceased died. At that time, P.W.3-Mamidi Mondaiah and P.W.4-Pulusa Rajaiah, along with another person, were present at the scene of offence. 12. In this background, it is necessary to examine the evidence of P.Ws.1 and 2, at the first instance.

13. P.W.1, having given descriptive particulars of the persons present at the time of occurrence and the method and the manner in which the offence had taken place, however stated that after hearing the cries of the deceased, she rushed to the spot. Having said so in Ex.P-1-report, in her evidence as P.W.1, she deposed that she saw the accused inflicting injuries on the deceased, meaning thereby, she was an eyewitness to the occurrence.

14. But, it is to be seen that there is no mention of the distance between the house of P.W.1 and the scene of occurrence, as such, it is not possible to this Court to know as to whether the cries of the deceased can be heard by P.W.1, who was living in the house at a distance. 15. So also, P.W.2 stated that after hearing the cries of the deceased, she along with her daughter-in-law-P.W.1 went to the scene of offence by running and found the deceased dead.

16. There is a direct conflict between the evidence of P.Ws.1 and 2. Firstly, P.W.1 did not say about accompanying of P.W.2 with her to the scene of offence. Secondly, when P.W.1 stated that she saw the accused causing injuries to the deceased with a “braise”, P.W.2 stated that by the time she and P.W.1 went to the scene of offence, the deceased was already dead. Even in the First Information Report also, it was stated that P.W.1 came to the scene of offence only after hearing the cries of the deceased. Therefore, there is any amount of conflict on material facts in the evidence of P.Ws.1 and 2.

17. In other words, the evidence of P.Ws.1 and 2 do not match with each other and is destructive of each other. Therefore, the Court below, in our considered view, had rightly rejected the evidentiary value of evidence of P.Ws.1 and 2 and eschewed the testimony of P.Ws.1 and 2 as eyewitnesses to the occurrence. 18. Now, coming to the evidence of P.Ws.3, 4 and 5, it is to be seen that the names of P.Ws.3 and 4 were already mentioned at the earliest point of time by P.W.1 herself in Ex.P- 1-complaint. Both P.Ws.3 and 4, almost, in one voice stated that they and P.W.5 were present at the scene of offence. P.W.3 was actually serving the toddy to others, while P.Ws.4 and 5 were consuming toddy along with the deceased. They further stated that, at that point of time, the accused came there and stabbed the deceased indiscriminately. P.W 5 also corroborated the evidence of P.Ws.3 and 4, on all material aspects. 19. The cumulative effect of the testimony of these three witnesses i.e., P.Ws.3 to 5 is to the effect that all the three witnesses were present at the scene of offence when the offence took place and saw the commission of the offence by the accused. That apart, they are not in any way connected either they are independent witnesses and there was absolutely no reason nor there is any motive that can be attributed to them in order to doubt the veracity of their testimony. the accused or the deceased, therefore,

20. Furthermore, the cohesion in the evidence of these three witnesses with almost surgical precession would only indicate that they had seen the accused stabbing the deceased with a “barise” indiscriminately and we do not find any reason to disbelieve or discredit the evidence of these three witnesses. 21. That apart, P.W.7 who was cited as a mediator to the confession that led to the recovery of the weapon, used in the commission of offence, also supported prosecution. the case of

22. Therefore, the evidence of P.Ws.3 to 5 has been substantially corroborated by the contents of the complaint, under Ex.P-1, and was also supported by another independent witness in the shape of P.W.7 corroborating the case of the prosecution to the extent of recovery of the weapon-barise, under Section 27 of the Indian Evidence Act.

23. The medical evidence, as could be seen from the evidence of Doctor, P.W.9, coupled with postmortem certificate, under Ex.P-5, would only reveal that there are as many as 11 anterior and 6 posterior injuries on the deceased, which are as under: “Anterior injuries:

1. Lacerated injury 1 x 7 cm right side of sternum vertical extending 3, 4 and 5 ribs including sterno costal and 1 x 3 cm. Anterior axillary’s line (right) vertically 1 x 3 cm.

2. Lacerated 1 x 2 cm post axillary’s line (right) oblique. 3. Lacerated 1 x 5 right border of sternum. 4. Lacerated 1 x 3 cm. mid-sternum vertical. 5. Lacerated 1 x 5 cm left border of sternum corresponding to 4, 5, 6 ribs running vertically.

6. Lacerated 1 x 10 cm below sternum running vertically. 7. Lacerated 2 x 3 cm mid axillary’s line (left) vertically. 8. Lacerated 1 x 10 cm horizontally mid axillary line along 5th inter-costal space.

9. Lacerated 1 x 10 cm horizontally around umbilicus. 10. Lacerated 1 x 8 cm (obliquely) right side of umbilicus (between sternum and umbilicus)

11. Lacerated 1 x 5 cm horizontally below umbilicus. Posterior injuries:

1. Lacerated injury 1 x 5 cm along spine interscapular. 2. Lacerated injury 1 x 7 cm horizontally along with line joining posterior, superior iliac spine.

3. Lacerated injury 1 x 5 cm left join horizontally.

4. Lacerated injury 1 x 5 cm right join horizontally. 5. Lacerated injury 1 x 5 cm left leg. 6. Lacerated injury 1 x 3 cm below left scapular.”

24. P.W.9, Doctor, opined that the cause of death of the deceased was due to haemorrhage shock. Further, the medical evidence also corroborates the time of death of the deceased and the weapon used for causing injuries on the body of the deceased.

25. In view of the above evidence on record, which is absolutely coherent and not being capable of demolished, in any manner, whatsoever, by the defence, we are of the considered opinion that the evidence of the prosecution witnesses is fully reliable and acceptable.

26. For the foregoing, we are of the view that the trial Court had rightly appreciated the evidence on record, while arriving at the accused alone was responsible for the commission of the offence, and accordingly, convicted him for the offence punishable under Section 302 I.P.C. the conclusion

27. In the result, the Criminal Appeal is dismissed. ___________________ JUSTICE D.S.R.VARMA _______________________ JUSTICE G.V.SEETHAPATHY Dated:06.11.2009