IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE 30TH DAY OF JUNE, TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.165 OF 2007 Between: Palasi Balayya And … Appellant State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., Hyderabad.
… Respondent This court made the following: -
HONOURABLE SRI JUSTICE A.GOPAL REDDY AND HONOURABLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.165 OF 2007
JUDGMENT: (per the Hon’ble Sri Justice K.C.Bhanu)
This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973, (for short, "Cr.P.C.") is filed by the appellant/accused No.1 against the Judgment, dated 28.12.2006, in Sessions Case No.93 of 2006 on the file of VIII Additional District & Sessions Judge, (Fast Track Court), Visakhapatnam, whereunder and whereby, the appellant was convicted of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, "IPC") and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, in default to undergo Simple Imprisonment for a period of two months.
2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows:
One Boyina Matchayya (hereinafter referred to as “deceased”) was a member of M.P.T.C. P.W.1 is the wife and P.W.2 is the daughter, of the deceased. They were residing in the house of Lingaputtu village of Paderu Mandal. There were some disputes between Lochalli Devinaidu and Kondababu. On 14.11.2004 at about 9 p.m., Devinaidu went to the house of Kondababu in his absence, and behaved indecently with his wife, L.W.15-Somela Satyavathi, on which Kondababu warned him and later he went away. On 15.11.2004 Kondababu informed A1 and A2, who are his relatives, about the same and all of them went to the house of Devinaidu in his absence and caused nuisance. Then the deceased asked them not to create any nuisance at the house of Devinaidu as he was not present at his house, stating that the dispute would be raised in the panchayat. On the same day at about 6.30 p.m., Kondababu and both the accused again went to the house of Devinaidu and damaged the tiles of the house. While Kondababu and others were returning, the deceased questioned both the accused, as to why they went to Devanaidu’s house as they decided to raise the dispute before the Panchayat. Then the accused quarreled with the deceased stating that he was supporting the caste of Devinaidu and thereby A1 stabbed the deceased with a knife on his back and caused injuries and A2 supported A1 in the act. As a result, the deceased fell down. Then both the accused ran away from that place. Then P.Ws.3 to 5 and some others took the injured to the Community Health Center, Paderu by arranging a Dooli (cradle). At that time the deceased was unconscious. Upon reaching the road point, he was taken to the Government Hospital. P.W.10, Sub-Inspector of Police, rushed to the hospital and recorded Ex.P5 statement from the injured-Matchayya. After reading over the contents, he obtained his signature on Ex.P5. He went to the police station and registered a case in Crime No.62 of 2004 for the offence punishable under Section 324 IPC. He examined P.Ws.1 to 5, recorded their statements, visited the scene of offence and observed the scene of occurrence in the presence of P.Ws.6 and others. He also prepared Ex.P7 rough sketch.
On 17.11.2004 at about 9 a.m. P.W.11 the A.S.I., Paderu got information about the movements of the accused in their village. Then, he along with P.W.7 and another, went to the house of A1 in the village and arrested both the accused. A1 produced M.O.1-knife from his house and the same was seized under Ex.P2 mediators report. Accused was brought to the police station on the same day and produced before the Judicial Magistrate of First Class, V.Madugula. On 18.11.2004, police received the intimation from the Community Health Center, Paderu with regard to the death of the deceased. Therefore, P.W.11 altered the section of law from Section 324 IPC to Section 302 r/w 34 IPC against both the accused and sent the original F.I.R. to the Court and issued express F.I.R. to all the concerned. Upon receipt of the first information report, P.W.12-C.I. of Police took up further investigation. During the course of investigation, P.W.12 examined P.Ws.1 to 6; recorded their statements; held inquest on the dead body of the deceased in the presence of P.W.8 and sent the dead body for post mortem examination.
P.W.9 conducted autopsy on the dead body of the deceased on 19.11.2004 and gave Ex.P4 – post mortem report opining that the deceased died due to bleeding into the right lung, leading to cardio respiratory arrest. The material objects have been forwarded to the Regional Forensic Science Laboratory, Visakhapatnam and after receipt of the report and after completion of the investigation, P.W.12 laid the charge sheet.
3. The charges levelled against accused No.1 are as under:
“FIRSTLY: -
that you A.1 Palasi Balayya, son of Dapanna on 15.11.2004 at about 7.30 p.m., near the house of M.P.T.C. you did commit murder by intentionally stabbing Boiyna Matchanna son of late Balanna with a sickle on the right side of vertibra and thereby causing his death and you thereby committed an offence punishable u/s. 302 of Indian Penal Code and within my cognizance.
SECONDLY: -
That you A.2 Palasi Chinnabbai, son of late Chinnayya on the same day time and place mentioned supra with A.1 caused the death of Boina Matchayya son of late Balanna with dangerous weapon, you assisted him for causing the death of Boina Matchayya with common intention and that you thereby committed an offence punishable under Section 302 r/w 34 of Indian Penal Code and within my cognizance.
When the charges were read over and explained to accused in Telugu, they pleaded not guilty and claimed to be tried.
4. To substantiate its case, the prosecution examined P.Ws.1 to 12 and got marked Exs.P.1 to P.10, besides marking the case property-M.O.1.
5. After the prosecution evidence is closed, accused were examined under Section 313 Cr.P.C., with reference to the incriminating evidence appearing against them in the evidence of prosecution witnesses. They denied the same. When the accused were called upon to enter into the witness box they examined D.W.1 to show that the accused has not caused any injuries to the deceased and Exs.D1 to D4 were marked.
6. The trial Court, after considering the evidence on record, came to the conclusion that it is the appellant/accused No.1 who caused fatal injury to the deceased with an intention to kill him and accordingly found him guilty, and convicted and sentenced him as stated above. However, the trial Court acquitted accused No.2 as there is no evidence to show that he shared the common intention with accused No.1, so as to eliminate the deceased. Challenging the conviction and sentence against accused No.1, he filed the present appeal.
7. Now, the point for determination is:-
“Whether the prosecution proved its case for the charge under Section 302 IPC against the appellant/accused No.1, beyond all reasonable doubt?”
P O I N T :-
8. Learned counsel for the appellant/accused No.1 contended that P.Ws.1 to 5 are interested witnesses and there are so many contradictions in their evidence, which would go to the root of the prosecution case; that the prosecution version as narrated by the witnesses is highly improbable and unbelievable; that the ocular testimony is contradictory to medical evidence; that as per the medical evidence, the injury would have been caused with a weapon having sharp edges on both sides, whereas M.O.1 is having only sharpness on one side and hence, the second injury on the body of the deceased has not been explained; that as there is inconsistency between the ocular testimony and medical evidence, it is not safe to base a conviction on the appellant; that Ex.P5 was brought into existence by the police for the reasons best known to them and that it was not a true and voluntary statement made by the deceased. Therefore, no reliance can be placed upon Ex.P5; that there is no prior enmity or grudge between the appellant and the deceased and on the other hand, they were on cordial terms prior to the incident. The learned counsel further contended that as the appellant was supporting the candidature of the deceased in the elections, in a fit of anger, in a sudden fight and upon sudden quarrel, accused No.1 caused the injury on the back side of the deceased and, therefore, the act of the appellant would squarely fall under exception 4 of Section 300 IPC that it is not murder, but it is a culpable homicide amounting to murder punishable under Section 304 Part II IPC. Hence he prays to set aside the conviction and sentence recorded against accused No.1.
9. The learned Public Prosecutor contended that the evidence of P.Ws.1 to 5 is consistent with regard to accused No.1 causing injury on the back side of the deceased and that these witnesses might not have noticed about A1 causing the second injury; that there is no inconsistency between the ocular and medical evidence, in view of the fact that the injuries on the deceased can be possible by hacking with a knife like MO.1 and that the doctor’s evidence is opinion evidence; that there is no other reason to disbelieve the evidence of P.Ws.1 to 5 and that their presence at the time of the incident is found to be quite probable and natural; that the dying declaration under Ex.P5 would clearly go to show that it is the appellant who caused injury on the back side of the deceased and that there is no reason for the police to create a document like Ex.P5; that once Ex.P5 is found to be true and correct, it can be acted upon even without any corroboration; and that the trial court after considering the evidence on record rightly found accused No.1 guilty for the offence punishable under Section 302 IPC and there are no grounds to interfere with the same.
10. The scene of occurrence is not seriously disputed by the accused. Ex.P1 is the scene of observation report drafted by P.W.10 in the presence of P.W.6. Similarly P.W.10 also scribed Ex.P7 rough sketch, which shows that the scene of occurrence is located in front of the house of the deceased and P.W.1. P.W.1 is no other than the wife of the deceased, where as P.W.2 is the daughter of the deceased and they were present at the time of the incident. The incident is alleged to have taken place at 7.00 or 7.30 p.m on 15.11.2004. P.W.12 the Investigating Officer held inquest on the dead body of the deceased in the Community Health Center, Paderu in the presence of P.W.8 and others under Ex.P3. The inquest mediators opined that the deceased died as a result of injuries on the back side of the body. The opinion of the inquest mediator as recited in Ex.P3 remained unchallenged.
11. P.W.9 the Doctor, who conducted autopsy on the dead body of the deceased, found the following injuries.
1. Stab wound of 3 C.M. x ½ C.M. x ½ C.M. over the back on right side.
2. Stab wound of 4 C.M. x 1 C.M. x ½ CM. Over the lumber region side.
On internal examination he found the right pleural cavity filled with blood and right lung compressed towards media-stinum. The Doctor opined that the deceased died due to bleeding into the right lung leading to cardio respiratory arrest and issued Ex.P4 post mortem certificate. The evidence of P.W.9 the Doctor and his opinion as to the cause of death of the deceased as recited under Ex.P4 remained unchallenged. He further deposed that there is a minimum possibility of causing external injuries 1 and 2 with a weapon like M.O.1. So he has not ruled out completely the possibility of causing the injuries as mentioned in Ex.P4 with a weapon like M.O.1. He further deposed that the external injuries could have been caused with a weapon having sharp edges on both sides. It does not necessarily mean those injuries would have to be caused only with a weapon having sharp edges on both sides. In view of the same, the fact that the possibility of causing those injures with a weapon with sharp edge on one side is not completely ruled out by the medical evidence. Therefore, there is no conflict between the medical evidence with that of the ocular testimony.
12. It is not in dispute that the deceased was a member of M.P.T.C., at the relevant point of time of the incident. Admittedly there were no disputes between the appellant and the deceased. Appellant was residing in Hyderabad prior to the date of incident. He went to Lingaputtu village. As seen from the evidence, there were disputes between Kondababu and Devinaidu. Devinaidu was in the habit of coming to the house of Kondababu in his absence, and for that reason the deceased advised both the accused and the relatives of Devinaidu to be present in the Panchayat, so that they can settle the dispute. On the date of the incident i.e., on 15.11.2004 at about 6 p.m. both the accused went to the house of Devinaidu and destroyed the tiles of the roof of the house, then the deceased scolded both the accused as to why they went to the house and damaged the tiles, in spite of his advice with regard to the raising of a dispute in the panchayat. Then A1 was under the impression that the deceased was supporting Devinaidu and so saying he stabbed the deceased with a knife on the right side back twice with M.O.1. Then the deceased fell down and both the accused ran away. It is in the evidence that at the time of the incident, P.W.1 was inside the house. To enter into the house of the deceased and P.W.1, there is no need for any person to bend while entering. That means whatever that was happening in front of the house would be visible to the inmates of the house i.e., P.W.1, the wife, and P.W.2, the daughter, of the deceased.
13. Admittedly the incident is alleged to have taken place at about 7.00 p.m. Then there was a possibility for P.Ws.1 and 2 to be present in the house at the time of the incident. In view of the fact that the attack was preceded by some wordy altercation, the attention of P.Ws.1 and 2 must have been drawn so that they could be in a position to witness the attack. If anything happens in front of their house they could be in a position to see the same. Therefore, P.Ws.1 and 2 are the natural witnesses to be present at the time of incident. Further more, the evidence of P.W.10 the Sub-Inspector of Police is that upon receipt of information about the admission of the injured into the Community Health Centre, Paderu, he rushed to the hospital and recorded the statement under Ex.P5. In Ex.P5, the deceased specifically mentioned about the presence of P.Ws.1, 3 and 4 at the time of incident. Therefore, under no stretch of imagination it can be said that P.Ws.1 and 2 are planted witnesses or that they could not be in a position to witness the incident.
14. P.Ws.3 to 5 are also the eyewitnesses to the incident. Their evidence is clear that on the date of the incident the deceased scolded both A1 and A2 as to why they were going to the house of Devinaidu, in spite of the advice of the deceased that the dispute would be settled amicably, in the panchayat. Then A1 stated that the deceased was supporting Devinadu and so saying A1 stabbed the deceased on the backside with a knife M.O.1. It is suggested to them that P.W.5 and his brothers killed the deceased and a false case was foisted against the accused. But the same is denied. P.Ws. 3 to 5 do not have any grouse or enemity against the accused so as to implicate the accused falsely in a case of this nature leaving the real assailants. Their presence at the time of incident is not seriously disputed. They have categorically stated that the incident took place in front of the house of the deceased. Therefore, there is no other reason to disbelieve the presence of P.Ws.3 to 5 at the time of incident. Further more, they are the persons who carried the deceased in a cradle up to the road point, as there was no conveyance facility and from there he was taken to the Community Health Center, Paderu in a jeep. Presence of P.Ws.3 and 4 as the persons who witnessed the incident has been specifically stated in the F.I.R., which was lodged within two or three hours after the incident. At that point of time there was no reason for the deceased to implicate the accused falsely. As a matter of fact, the deceased and accused No.1 are the close friends. Both the accused and some others supported the deceased when he contested for Mandal Parishad Territorial Constituency. Because of closeness of the appellant with the deceased, the deceased would not have implicated him falsely. Therefore, the evidence of P.Ws.1 to 5 would clearly go to show that it is the appellant who caused both the injures on the back of the deceased
15. Within few hours after the incident, P.W.10 recorded Ex.P5 statement from the deceased. When a statement is made by a person, either written or verbal, as to the cause of his death or any one of the circumstances resulting to his death, in case in which the cause of that person's death comes into question, such statement is admissible in evidence under Section 32 (1) of the Indian Evidence Act, 1872. if the statement is found to be true and voluntary one and not an outcome of tutoring or prompting by any other person, it can be acted upon even without any corroboration. The sequence of events that took place on the evening of the fateful day have been clearly mentioned in Ex.P5. It is clearly stated in Ex.P5 that in the evening at about 6.00 p.m., Kondababu and his relatives went to the house of Devinaidu, and after some time, when A1, Kondababu and other relatives were returning through their house, the deceased asked them as to why they went to the house of Devinaidu for quarrel in spite of his saying that a panchayat would be held in the morning; then A1 and A2 revolted against him and stabbed him on the backside. Therefore, the recitals in Ex.P5 are completely in corroboration with the evidence of P.Ws.1 to 5.
16. No doubt it is the case of the appellant that Ex.P5 was a fabricated document, brought into existence by the police to suit their case. But there are no indications in the evidence of prosecution witnesses to show that it was brought into existence or it was a fabricated document. After receipt of the information from the hospital, P.W.10 went to the hospital and recorded the statement of the deceased and after reading over the contents in Ex.P5, he obtained the signature of the deceased. So at the earliest point of time, Ex.P5 was recorded, and there is no other reason to doubt the recitals in Ex.P5. So from the above evidence, it is clear that the appellant is the assailant of the deceased.
17. Further, P.W.11 arrested the accused in the presence of P.W.7 and the accused gave confessional statement and the admissible portion is marked as Ex.P2. After giving the confessional statement, the accused produced M.O.1 from his house and the same was seized by the police. All the witnesses categorically stated hat M.O.1 was the weapon used by the accused in the commission of offence. Even the Doctor P.W.9, stated that there was a minimum possibility of causing external injuries 1 and 2 with a weapon like M.O.1. In view of the fact that the Doctor did not rule out the possibility of causing injuries when hacked with M.O.1, it can be said that there is no conflict between the ocular testimony and medical evidence.
18. In Ram Narain Singh v. State of Punjab[1], wherein it was held as follows:
“Where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defeet in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case.”
Nodoubt, the above decision shows that when ocular testimony is inconsistent with the medical evidence, there is inherent difficulty in the prosecution case and when the medical evidence completely ruled out the possibility of causing the injuries in the manner stated by the prosecution then only the ocular testimony has to be rejected. But when there is no inconsistency and the evidence of the prosecution witnesses is consistent with the ocular testimony, there is no need to reject the evidence. So from the aforesaid reasons, we have no hesitation in holding that the appellant is the assailant of the deceased.
19. For the proposition that non-examination of Devinaidu, Satyavathi and Konda Babu, is a fatal to the case of the prosecution, the learned counsel for the appellant relied upon a decision reported in Thulia Kali v. State of Tamil Nadu[2]. There cannot be any dispute that the prosecution is not obliged to examine the witness after witness for the same purpose. It is not the quantity that matters but it is the quality. Therefore, when the evidence of P.Ws.1 to 5 is consistent in nature, non-examination of the said persons cannot be said to be fatal to the case of the prosecution. The above decision relied upon by the learned counsel for the appellant has no application to the present facts of the case.
20. Now it has to be seen whether the act of the appellant would fall under the offence punishable under Section 302 IPC or any other offence?
21. Admittedly, there was no prior enemity between the appellant and the deceased. On the other hand, the appellant and the deceased were very close friends. The meeting of the appellant by the deceased is a chance meeting. When the appellant and some others caused damage to the tiles of the house of Devinaidu, then the deceased chastised the appellant as to why they were going to the house of Devinaidu as he already informed that he would convene a panchayat to settle the dispute. The appellant thinking that the deceased was supporting Devinaidu, hacked him with a sickle knife on the back. So, the act of the appellant cannot be said to be with an intention to cause death or with knowledge that his act is likely to cause death. But it was committed without premeditation in a sudden fight, in the fit of anger, upon sudden quarrel and that offender has not taken undue advantage and acted in a cruel or unusual manner. Therefore, the act of the appellant would not attract any one of the clauses under Section 300 IPC. But the act of the appellant is with the intention of causing such bodily injury as is likely to cause death which is culpable homicide not amounting to murder. We have no hesitation in holding that the case squarely falls under exception IV of Section 300 IPC, and the accused is liable for conviction for the offence under Section 304 Part I IPC.
22. On this aspect, the learned counsel for the appellant relied upon a decision reported in Kulwant Rai v. State of Punjab[3], wherein it was held as follows:
“There was no premeditation. It was something like hit and run. In such a case, part 3 of S.300 would not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the circumstances herein discussed, it would appear that the accused inflicted an injury which he knew to be likely to cause death and the case would accordingly fall under S.304 Part II IPC.”
23. He also relied upon a decision reported in Ramachandra Ohdar v. State of Bihar [4], wherein it was held as follows:
“The appellant had given one blow with a sharp edged weapon on the neck of the deceased. The medical evidence is silent about the nature of the injury caused by the appellant. But considering the nature of the weapon, the part of the body on which the blow was given and the size of injury it can be said that the injury caused had endangered his life. Therefore, the appellant can be convicted for the offence punishable under Section 326, Indian Penal Code.
24. Learned counsel for the appellant also relied upon a decision reported in Jagtar Singh v. State of Punjab[5], wherein it was held as follows:
“The next question is what offence the appellant is shown to have committed? In a trivial quarrel the appellant wielded a weapon like a knife. The incident occurred around 1.45 noon. The quarrel was of a trivial nature even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances. it is a permissible inference that the appellant at least could be imputed with a knowledge that he was, likely to cause an injury which was likely to cause death. Therefore, the appellant is shown to have committed an offence under Section 304, Part II of the Indian Penal Code and a sentence of imprisonment for 5 years will meet the ends of justice.”
25. Therefore, the conviction and sentence recorded against the appellant/accused No.1 for the offence punishable under Section 302 IPC is set aside and he is found guilty of the offence punishable under Section 304 Part I IPC.
26. In the result, the conviction and sentence recorded against the appellant/accused No.1 in Judgment dated 28.12.2006, in Sessions Case No.93 of 2006, by VIII Additional District & Sessions Judge, (Fast Track Court), Visakhapatnam are set aside. The appellant/accused No.1 is found guilty of the offence punishable under Section 304 Part I IPC. He is accordingly convicted and sentenced to undergo Rigorous Imprisonment for a period of seven years. The period of detention underwent by him during the investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C.
27. The Criminal Appeal is partly allowed to the extent indicated above.
A.GOPAL REDDY, J K.C.BHANU, J
30th June 2010 lmv
[1] 1975-SCC-4-497
[2] 1972 SCC 3-393
[3] 1981 SCC 4-245
[4] 1999 SCC 9-97
[5] 1983-SCC-2-342