HON'BLE SRI JUSTICE G.CHANDRAIAH
&
HON’BLE SRI JUSTICE M.S.K. JAISWAL Crl.A. No. 433 of 2010
DATE: 10.06.2014
Between:-
Ethari Chinna Muthaiah .. Appellant/ Accused and State of A.P. .. Respondent- Complainant
JUDGMENT:- (per Hon’ble Sri Justice G. Chandraiah)
This Criminal Appeal under Section 374(2) Cr.P.C. is directed against the judgment dated 09.12.2009 delivered in Sessions Case No. 364 of 2008 on the file of III Additional Sessions Judge (FTC), Nizamabad whereby the appellant-accused was convicted of the offence punishable under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and pay a fine of Rs.2,000/-, in default, to suffer simple imprisonment for three months.
The case of the prosecution in brief is as follows: Three years prior to 22.12.2007, PW1 - Bodas Oddevva, and her husband - Nadipi Narsaiah, who are natives of Surbiryal village, came to Dharmora village for eking out their livelihood by doing agriculture work. The accused, who is also native of Surbiryal village, came to Dharmora village and was working as agricultural labour. Earlier, the accused was involved in cases of robbery, and after undergoing sentence of imprisonment for 8 days, he was released from jail. In this regard, the wife of the accused picked up quarrel with the husband of PW1, the complainant. While so, on 22.12.2007, at 06:00 p.m., PW1’s husband left the house, and at 9:00 p.m., PW1 came to know through Upa Sarpanch of Dharmora village that her husband was murdered at the house of Laxmi Limbanna. Immediately, she went there and found him dead due to stabbed injuries on chest and other parts of the body, and subsequently, came to know that the accused murdered her husband at about 8.40 p.m. suspecting that the deceased might have given information to the police about the involvement of the accused in theft cases. On receiving information about the death of Nadipi Narsaiah, PW15 took complaint from PW1, endorsed it and sent to the police station, based on which, PW13 registered a case in Cr.No.94 of 2007 against the accused for the offence punishable under Section 302 IPC and after completion of investigation filed charge sheet.
The trial Court framed the following charge against the accused:
“That you on 22.12.2007, at about 8.45 p.m., committed murder intentionally or knowingly causing the death of Sri Bodas Nadipi Narsaiah, who was drinking alcohol (liquor) and you stabbed the deceased on the chest, stomach and other places of body and murdered near the house of Laxmi Limbanna of Dharmora village by suspecting that the deceased is informer to the police and responsible for the apprehension of you in other crimes, and that you thereby committed an offence punishable under Section 302 IPC and within my cognizance.”
When the above charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried.
To substantiate the charge, the prosecution examined PWs.1 to 16 and got marked Exs.P1 to P16 and M.Os.1 to 9. On behalf of the accused, no witness was examined and Ex.D1 was marked.
After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses. He denied the same.
The trial Court, after considering the evidence on record, framed the following points for consideration:
1) Whether the deceased Bodas Nadipi Narsaiah died of homicide?
2) Whether the evidence on record could bring home the guilt of the accused for charges framed beyond all reasonable doubt?
Based on the evidence on record, the trial Court found the accused guilty of the charged offence and convicted and sentenced him as stated supra. Challenging the same, the accused has filed the present appeal.
Smt. A. Gayatri Reddy, learned counsel for the appellant – accused has contended that the trial Court erred in admitting inadmissible evidence and rejecting material evidence, and the learned Judge failed to see that when the deceased was in toddy compound how the incident could take place at the arrack shop of Laxmi Limbanna in the presence of several persons especially PWs.2, 3 5 and 6 who did not even try to pacify the accused from committing the offence and hence they are all planted witnesses for the purpose of prosecution. She further submits that the learned Judge without extending benefit of doubt to the accused convicted him merely based on the evidence of planted witnesses, and prays to set aside the judgment under appeal.
Sri K. Venkateswara Rao, learned Special Assistant Public Prosecutor appearing for the State has submitted that the trial Court based on the oral and documentary evidence on record, rightly adjudged the matter and convicted the accused of the charged offence which does not require interference by this Court, and prays that the appeal may be dismissed.
Now, the point for determination by this Court is:
1) Whether the prosecution proved its case beyond all reasonable doubt against the accused of the charged offence, and if so, whether the judgment of the trial Court requires no interference?
POINT:-
PW1 is the wife of the deceased – Nadipi Narsaiah and she is not the eye-witness. Her evidence reveals that on the date of commission of offence, at about 9.00 p.m., she came to know through one Rajender of her village that her husband was stabbed by the accused with a knife in front of the house of Laxmi Limbanna and immediately she rushed to the spot and found two stabbed injuries over the chest and other parts of his body. She further deposed that the accused, after killing her husband, informed the same to Rajender, Upa Sarpanch. She deposed that the accused stabbed her husband with a knife at about 8.45 p.m. in the presence of PWs.2, 3, 5 and 6 and others on the suspicion that her husband might have been responsible for giving information to the police for his arrest in connection with his involvement in earlier theft cases, and in that connection, some quarrel also took place between the wife of the accused and the husband of PW1.
The evidence of PWs.2, 3, 5 and 6 is on the same lines as that of PW1. Their evidence further reveals that while PWs.2, 3, 5 and 6 were consuming arrack along with the deceased at the shop of PW7 which is situated in front of the house of Laxmi Limbanna, the accused suddenly came and stabbed the deceased with the knife and threatened the witnesses, and out of fear, they ran away from the scene and subsequently came back and found the deceased dead.
PW7, who is the owner of the shop where arrack was being sold, deposed that LW3 who was selling arrack in his shop, came and informed him that the accused murdered the deceased, and then PW7 went and found the dead body of the deceased at the scene of offence.
PWs.8 and 9 are photographers.
PW10, an independent witness, deposed that on being called by the police, Morthad Police Station to the house of Laxmi Limbanna, he along with LW13 went and found the dead body of the deceased and the police drafted scene of offence which is marked as Ex.P7 and seized M.Os.1 and 2 i.e. blood-stained earth and controlled earth respectively. Then, the police went to the Government Hospital, Armoor, conducted inquest over the dead body and seized one white shirt, banyan, dhoti with blood stains and a watch which are marked as M.Os.3 to 6.
PW11 is also an independent witness who categorically deposed that on 28.12.2007, he and LW15 were called by the police near Hanmanth Reddy Lift Irrigation Pump and when they reached the place, the police asked them as to why the accused was caught by the police, and when they asked the accused about it, he confessed that prior to the incident, at Ergatla village shivar, he along with one Ramulu and others committed theft from one person who was driving motorcycle, on that, he suspected that the deceased might have informed the police about the theft committed by him, and thereafter he was arrested, and after release on bail, the accused, keeping this in mind, stabbed the deceased on chest and other parts of his body and confessed that he kept the knife at about 300 meters away near banana bushes, and on demand, he brought the knife and showed it to them.
PW12, who conducted post-mortem examination over the dead body of the deceased, found the following injuries:
i) Stab injury of left axilla inner side 3 x 2 x 5
ii) Stab injury on the right side of the chest 2x1x1
iii) Stab injury just above the injury on the same side of the chest ½ x ½ x ½.
iv) Stab injury on the abdomen between GP sternum and umbilicus 3x2x5
v) Stab injury at left axilla outside 3x1x1
vi) Stab injury on the upper lip left side ½ x ½ x ¼
vii) Left and right lungs injured (stab wounds).
He opined that the cause of death is due to shock and hemorrhage by reason of ruptured lungs as a result of stab injury and these injuries are possible with sharp object like knife.
PW13, the then Assistant Sub-Inspector of police, Morthad deposed about his registering the case against the accused and investigating the matter.
PW14, Circle Inspector of Police, Bheemgal Circle deposed that on the date of the incident, he conducted scene of offence panchanama which is marked as Ex.P7, drafted rough sketch of scene of offence in the presence of panchayatdars under Ex.P8, and conducted inquest over the dead body of the deceased under Ex.P9 and seized M.Os.3 to 6 and took up further investigation.
The deposition of PW15 – Sub-Inspector of Police, Morthad is to the effect that on 22.12.2007, on his endorsement made on the complaint, PW13 registered F.I.R. and with his assistance he handed over C.D. file to PW14 for further investigation.
PW16 – Circle Inspector of police, Armoor deposed that he took up further investigation and sent material objects M.Os.1 to 5 to Forensic Lab, Hyderabad for examination through SDPO, Armoor, apprehended the accused, secured the presence of panch witnesses i.e. PWs.11 and LW15, recovered MOs.7 to 9, drawn Ex.P11 – rough sketch of confessional and seizure panchanama, arrested the accused and produced him before the Court on 29.12.2007 and later received Exs.P15 and P16 – FSL reports and filed charge sheet.
We have considered the rival submissions made by the learned counsel for both the parties and perused the record.
The case entirely rests with the evidence of PWs.2, 3, 5 and 6 who are eye-witnesses to the scene of offence. The testimonies of PWs.2, 3, 5 and 6 which are on similar lines, are to the effect that when the deceased along with these witnesses, was consuming alcohol at the shop situated in front of the house of Laxmi Limbanna, the accused came there and suddenly stabbed him in his stomach and other parts of the chest with the knife and when he threatened the witnesses, they ran away from that place out of fear and after sometime they came back to the scene of offence and found the husband of the complainant dead. This evidence, corroborating with the medical evidence which clearly discloses the nature of injuries on the vital organs of the body like lungs, has remained unrebutted. Here, it is to be noticed that the reason with which the accused stabbed the deceased with sharp-edged knife resulting in his death is ample from the evidence of PWs.1 and 11 to the effect that the deceased might have given information to the police about the involvement of the accused in earlier theft cases recorded against him and his arrest. The evidence of PWs.4 and 11, who are independent witnesses, clearly discloses that the accused confessed that he murdered the deceased with knife and brought M.O.7 – knife from the banana bushes which was seized by the police. The evidence of PW10, who is the panch witness, fortifies the commission of offence by the accused. Further, there is no discrepancy in the entire evidence of PWs.13 to 16 – investigating officers and their evidence corroborates the version of the eye-witnesses. The evidence of PW12, who conducted post-mortem examination over the dead body of deceased, that the stab injuries brutally inflicted by the accused in the stomach and on the chest of the deceased causing his death, clinchingly establishes the guilt of the accused. According to the contention of the learned counsel for the appellant, even if the evidence of the eye-witnesses is held to be not reliable, the evidence relating to recovery of material objects establishes the version of PWs.10 and 11, in whose presence, the accused confessed the commission of offence and the police seized MOs.3 to 9. On a careful analysis of the testimony of PWs.2, 3, 5 and 6, it is manifest that their evidence is cogent and acceptable and the question of disbelieving the evidentiary value thereof does not arise, more so, having regard to the corroborative evidence available on record by the doctor who conducted post- mortem examination. Incidentally, the doctor was not cross-examined to discredit the evidence of the prosecution witnesses with regard to the nature of injuries and also the manner of assault. Further, it is to be seen that the way in which the prosecution witnesses adduced their evidence, it does not appear that they are planted witnesses because planted witnesses cannot depose or adduce in the same manner as an eye-witness deposes. It is natural that there do exist at least some or more ambiguity/discrepancy in their evidence when compared to that of the eye-witness inasmuch as the planted witnesses do not witness the incident directly so as to depose possible incriminating circumstances against the accused. Further, as contended by the learned counsel for the appellant, no person, who witnessed the commission of offence especially an incident of murder, muster enough courage to go near either to pacify the accused from killing the deceased or save the deceased from his clutches, and rather, they would try to escape from that situation, therefore, PWs.2, 3, 5 and 6 who are alleged to be the planted witnesses by the learned counsel for the appellant-accused, are in fact not the planted witnesses but eye-witnesses, who deposed in a forthright manner and their credibility has not been impeached in any part of the evidence. Apart from that there is hardly anything in the cross-examination of the witnesses which may cast a doubt on the truthfulness of their testimony. Therefore, it can be safely concluded that the entire evidence of the prosecution witnesses particularly that of PWs.2, 3, 5 and 6 is an admissible piece of evidence and there is no occasion or incident connecting with the offence for extending benefit of doubt to the accused over the manner in which the accused committed the offence. Therefore, the contention put forth by the learned counsel for the appellant is baseless and not sustainable. The preponderance of evidence available on record, in our considered opinion, does justify the view taken by the learned Additional Sessions Judge (F.T.C.), Nizamabad and the same cannot and ought not to be interfered with.
In the result, this Criminal Appeal fails and is dismissed.
G. CHANDRAIAH, J 10.06.2014 M.S.K. JAISWAL, J bcj