HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL
Criminal Appeal No. 579 of 2010
Dated: 23.09.2014 Between:
1. Papineni Sudheer Kumar
2. Papineni Nagamani.
Vs.
The State of Andhra Pradesh, Represented by Public Prosecutor, High Court, Hyderabad.
… Appellants/A.1 & A.2 … Respondent HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL
Criminal Appeal No. 579 of 2010
JUDGMENT: (Per Hon’ble Sri Justice G. Chandraiah)
This criminal appeal is preferred by the Appellants/Accused aggrieved by the judgment and conviction ordered in S.C.No. 451 of 2009, dt.09.04.2010 by the learned I-Additional District and Sessions Judge, Khammam. By virtue of the impugned judgment, A1 was found guilty and convicted for the offences under Sections 302 and 324 IPC, and A2 was found guilty and convicted for the charge under Section 302, read with Section 34 IPC. However, the accused were not found guilty and acquitted for the offence under Section 307, r/w. Section 34 IPC. The trial Court sentenced both the accused to undergo imprisonment for life for the offence under Section 302 IPC and Section 302, read with Section 34 IPC respectively and to pay a fine of Rs.1000/- each, and in default of payment of fine, sentenced to undergo simple imprisonment for a period of three months each. Apart from that, A1 was also sentenced to undergo imprisonment for three months and to pay a fine of Rs.200/-, in default to suffer simple imprisonment of fifteen days for the offence under Section 324 IPC.
2. The case of the Prosecution is that on 19.01.2009, the deceased – Avula Narasimha Rao, along with Gundapaneni Praveen (PW-2) went out for searching their tractor driver, and at about 11.00 p.m. PW-2 returned to the house with bleeding injury on his right-hand raising cries, and told the inmates, including Avula Dhana Lakshmi (PW-1), wife of the deceased and others that while the deceased was smoking cigarette near bus-stop, A.2 caught hold of the deceased and A.1 axed the deceased, and on his intervention, A.1 beat him also with an axe on his right-hand, and due to fear PW-2 ran away and reached their house. Immediately, PW-1 woke up her junior brother-in-law Srinivasa Rao and her in-laws, and all of them went to Bus-stand and found the dead body of the deceased with injuries in a pool of blood.
The wife of the deceased-Dhanalaxmi (PW.1) lodged a complainant (Ex.P.1) with the police in the early hours i.e., at about 0300 hours on 20.1.2009 stating that previously her husband Narasimha Rao had illegal intimacy with A.2, the wife of A.1 and keeping the same in mind, A.1 and A.2 attacked the deceased and killed him, and also tried to kill PW-2, who came to rescue her husband and requested for necessary action.
On receipt of the same, the Sub-Inspector of Police, Chinthakani P.S - PW.19 registered a case in Crime No. 5 of 2009 against both the accused for the offences punishable under Sections 302 & 307 read with Section 34 IPC and issued FIR - Ex.P.16. On the same day, the Sub-Inspector of Police examined the witnesses, recorded their statements, examined the scene of offence, seized the material objects and sent PW-2, injured to the Government Hospital, Khammam for treatment. The Police conducted inquest over the dead body of the deceased, recorded the statements of the witnesses, arrested the accused, and after completion of the investigation filed charge sheet.
3. The learned III Additional Judicial Magistrate of First Class, Khammam took cognizance of the offences under Sections 302, 307 and 324 read with Section 34 IPC, vide PRC.No. 20 of 2009, and after following the due procedure, committed the case to the Court of Sessions, since the offence under Section 302 IPC is exclusively triable the Court of Sessions. The learned Sessions Judge, Khammam took the case on file as S.C.No. 451 of 2009 and made over the same to the I Additional District & Sessions Judge, Khammam for disposal according to law.
4. On appearance of the accused, after hearing both sides and considering the material on record, the trial Court framed the charges against the accused for the offences under sections 302, 307, 324 read with Section 34 IPC, read over and explained to them for which the accused denied the same, pleaded not guilty and claimed to be tried.
5. To bring home the guilt of the accused, the prosecution examined PWs.1 to 20, marked Exs.P.1 to P.17 and M.Os.1 to 10. After closure of the evidence of prosecution, the accused was called upon to explain the incriminating circumstances that were appearing in the evidence of prosecution witnesses, as contemplated under Section 313(1)(b) Cr.P.C., and the Accused denied the same.
6. On considering the material available on record, the trial Court found both the accused not guilty and acquitted them for the offence under Section 307, read with Section 34 IPC. However, the trial Court found A.1 guilty for the charges under Sections 302 and 324 IPC, and A.2 guilty for the charge under Section 302 read with Section 34 IPC, and accordingly convicted and sentenced them to undergo imprisonment for life and pay a fine of Rs.1000/- each, and in default of payment of fine to undergo simple imprisonment for a period of three months each. Apart from that, A-1 was also found guilty for the offence under Section 324 IPC and sentenced to undergo imprisonment for three months and to pay a fine of Rs.200/- and in default to suffer Simple Imprisonment for fifteen days. Aggrieved by the same, the present appeal is preferred by the accused.
7. The learned counsel appearing for the accused submits that the trial Court ought not to have found the accused guilty for the offence under Section 302 IPC and sentence them for life imprisonment. He further submits that PW-1 is the wife of the deceased; PW-2 is the nephew of the deceased; PW-3 is the father of the deceased, and PW-4 is the brother of the deceased and therefore they are all interested witnesses, and there is no corroboration in support of the said evidence. Therefore, the trial Court could not rely upon their evidence to convict the accused. In support of the same, the learned counsel relied upon a decision of the Supreme Court in Kapildeo Mandal & Others v. State of
[1]
Bhar . He further submits that even according to the prosecution, the sole witness was only PW-2, who is also an interested-witness. Therefore, until and unless his evidence is corroborated with any other independent witness, the sole evidence of the alleged eye-witness cannot be relied upon. To the said proposition, the learned counsel relied upon a judgment of the Supreme Court in Lallu Manjhi & Another vs. State of
[2]
Jharkhand . He further submits that even the alleged presence of PW-2 at the scene of offence is doubtful. For that purpose, he placed reliance on the judgment of the Supreme Court in Mathura
[3]
Yadav @ Mathura Mahato & Others vs. State of Bihar . In view of the above, the learned counsel vehemently contended that the statements of the interested witnesses cannot be the basis for imposing punishment of life imprisonment on the accused. The learned counsel further submits that PWs.5 and 6, who claimed to be the independent eye-witnesses; PW.7 - Sarpanch of the village, PWs.8, 9 and 10, village elders and PWs.16 and 17, having turned hostile, did not support the case of the prosecution. The evidence of other witnesses i.e., PWs.11 to 14 no way connect the accused with the offence. The remaining witnesses are official witnesses. Hence, the learned counsel submits that the trial Court ought to have acquitted the accused instead of convicting them.
8. On the other hand, the learned Public Prosecutor submits that as many as 20 witnesses were examined on behalf of the prosecution, and though some unimportant witnesses have turned hostile, the material witnesses, namely PWs.1 to 4, and PWs.17 to 20 have supported the case of the prosecution and have deposed about the occurrence, and their evidence is corroborated with each other. Therefore, the learned Public Prosecutor submits that there is ample evidence available to the prosecution, which is sufficient to prove the guilt of the accused, and thus the prosecution has substantially proved its case and the guilt of the accused beyond reasonable doubt. Hence, the trial Court on considering the entire evidence on record rightly found the accused guilty and convicted them accordingly. Therefore, the learned Public Prosecutor submits that it is not a fit case for interference by this Court and submits that the appeal may be dismissed.
9. In view of the above rival submissions, the point that arises for consideration is as to whether the prosecution has proved its case beyond reasonable doubt to impose the punishment on the accused, as imposed by the trial Court.
10. We have perused the impugned judgment and considered the entire material available on record. As can be seen from the evidence on record, to prove the guilt of the accused, the prosecution has examined PW.1 – Avula Dhana Lakshmi, the de facto complainant and wife of the deceased to speak about PW.2 informing her about the incident and she lodging the complaint, Ex.P.1 before the police. PW-2 is the injured eye-witness, who is the nephew of PW.1. PW-3 is the father of the deceased, and PW.4 is the brother of the deceased, and they were examined to corroborate the evidence of PWs.1 and 2 about the incident.
According to the learned counsel for the appellants/accused these material witnesses, namely PWs.1 to 4, being the close relatives of the deceased, are interested witnesses.
PW.5 – K.Nageswar Rao, who is running a hotel opposite to the Bus-stand at Nagulavancha, where the incident is occurred, is examined to speak about his noticing PW.2 raising cries and running away on 19.01.2009 at about 11.30 p.m. PW.6 – L.Govinda Rao, who is running a chicken shop near the place of incident, is examined to speak about hearing the cries of PW.2 and running towards the village, and noticing A.1 armed with Axe and A.2 running away from the bus-stand center. PW.7 – K.Veerabhadram, is examined to speak about his reaching the scene of offence on knowing about the death of the deceased. PW.8 – A. Yellaiah, PW.9 – V.Satyanarayana and PW.10 – A.Venkateswar Rao were examined by the prosecution to speak about their holding panchayats with regard to the disputes between A.1 and the deceased. But all these independent witnesses have turned hostile and did not support the case of the prosecution.
PW.11 – G. Babu Rao is the photographer, who took photographs of the scene of offence and the dead body of the deceased. He admitted about the same and through him Exs.P.8 to P.12 photographs were marked. His evidence goes to show that the deceased was lying in a pool of blood with injuries, which resulted in his death.
PWs.12 and 13, who are said to have noticed the dead body of the deceased with injuries in a pool of blood near the bus-stand, have turned hostile and did not support the case of the prosecution.
PW.14 – M. Shyam Sunder, VRO, Nagulavancha admits about his presence at the time of police inspecting the scene of offence, preparing Crime Detail Form and seizing the controlled earth, blood stained earth, cigarette packet and one pair of chappal, marked as M.Os.1 to 4.
The other witnesses, PW.15 – K.Pullaiah, Panchayat Secretary of Nagulavancha turned hostile and denied about his presence at the time of police recovering MO.5 – Axe, at the instance of A.1. Similarly, PW.16 – S.Babu Rao, also turned hostile and denied about his presence at the time of police seizing the axe at the instance of A.1. As such the evidence PWs.15 and 16 will not help the case of the prosecution to connect the accused with the alleged offence.
PW.17 – Dr. K. Prasanna Jyothi, the Medical Officer in her evidence stated that she conducted postmortem over the dead body of the deceased and issued Ex.P.14 post mortem examination report. She states that she noticed a deep laceration with irregular edges over the junction of neck and anterior chest, involving vital structures in the neck like carotids trachea, laceration with irregular edges over right lateral side of neck, and over the scalp on the left parietal region with irregular fracture of underlying bone with exposure of brain, left parietal lobe, small laceration at anterior chest and haemotoma over left parietal bone. Basing on the above, she states that the deceased died due to shock of the injuries to his vital organs, like neck and brain and might have died about 24 hours prior to her conducting post mortem examination on 20.01.2009.
The other doctor PW.18 – Dr.K.Prabavathi, who examined the injured-PW.2, stated that she found one lacerated injury over the right forearm of PW.2, which might have been caused with a blunt object, and she applied sutures to the said injury, which is not deep cut injury. She issued Ex.P.15 wound certificate.
11. From the evidence of PW.19, the then Sub-Inspector of Police, Chinthakani P.S. it is seen that on 20.1.2009 at about 0300 hours, PW.1 came to the Police Station and lodged Ex.P.1 written complaint, and basing on the same he registered a case in Crime No.5 of 2009 for the offence under Sections 302 and 307 IPC, read with Section 34 IPC. On the same day, he examined and recorded the statement of PW.1, rushed to the scene of offence, and sent PW.2 to the Government Hospital, Khammam for treatment. Nothing contrary is elicited from him during the cross-examination.
12. From a perusal of Ex.P.16, First Information Report, it is clear that the same reached the jurisdictional Court on 21.01.2009 at about 10.25 a.m. With regard to delay, no specific questions were put to PW.19. Therefore, on the basis of the evidence of PW.19, it can be safely held that on the early hours of 20.01.2009 at about 3.00 a.m. PW.1, the wife of the deceased, went to the police station and lodged Ex.P.1 complaint and basing on the same, FIR was registered and sent to the Court.
13. From the above, it is clear that on the basis of evidence of PW.17, Dr. K.Prasanna Jyothi, the cause of death is homicidal and the deceased died about 24 hours prior to 20.01.2009 at 3.30 p.m. The evidence of PW.17 and the contents of Ex.P.14, post-mortem examination report are not disputed. In view of the above, it is to be seen whether the prosecution is able to prove the guilt of the accused in causing the death of the deceased by hitting him with axe on his head and neck.
14. A perusal of the evidence of PW1, wife of the deceased and the evidence of the injured eye-witness i.e., PW.2, nephew of the deceased, it is clear that their evidence is consistent. PW.1 stated that on 19.01.2009, the deceased and PW.2 together went out of their house in search of their driver, and at about 11.00 p.m., on the same day PW.2 returned home with bleeding injury on his right hand and by raising cries he informed all the inmates that while A.2 caught hold the legs of the deceased, A.1 beat the deceased with an axe and when PW.2 tried to interfere, A.1 also beat him with the axe on his right hand, and due to fear PW.2 ran away and reached the house. PW.2 supported the said version of PW.1 in detail. Thereafter, they all went to the scene of offence, found the deceased Narasimha Rao lying dead with injuries in a pool of blood. Apart from that, a perusal of the evidence of PW-3, father of the deceased, and PW.4, nephew of the deceased, it is seen that their evidence is consistent with regard to the deceased and PW.2 going out of the house in search of the driver, PW.2 returning home with injuries on his hand, informing them that while they were at bus- stand, A.1 and A.2 attacked them and killed the deceased with an axe. Nothing contrary is elicited from the cross-examiination of PWs.1 to 4.
15. The defense put forward by the learned counsel for the accused in the cross-examination of PWs.1 to 4 was that the deceased was suspecting PW.1 of having illicit intimacy with PW.4 and that the deceased Narasimha Rao was insisting PW.4 to marry one Prasanthi, sister of PW.2. Further, on one occasion, the deceased Narasimha Rao on seeing PWs.1 and 4 together, attacked them and beat PW.4 with an axe and caused injury on his hand. Further, on 19.01.2009 at about 6.00 p.m. the deceased Narasimha Rao tried to kill PWs.1 and 4 with axe, and at that time they ran away, and thereafter PWs.1 and 4 in collusion with PW.2, killed the deceased in order to continue their illicit intimacy. All these suggestions of defense were denied by PWs.1 to 4, and there is no other evidence with regard to the said defense put up by the accused.
16. So far as the injury to the right hand of PW.2 is concerned, the prosecution has examined PW.18, Dr. K.Prabhavathi, who treated PW.2 and ssued Ex.P.15 wound certificate. From a perusal of the evidence of PW.18 and the contents of Ex.P.15, it is seen that on 20.01.2009, PW.18 examined PW.2 and found one laceration over right forearm, which was a simple injury, caused with blunt object and she applied sutures. Though the evidence of PW.18 is not consistent with regard to the nature of the weapon used and the description of the injury, her evidence goes to show that on 20.01.2009 she examined PW.2 and found a lacerated injury over his left forearm, for which she applied sutures, which is fully corroborated with the evidence of PW.2, the injured eye-witness. Therefore, the presence of PW.2 along with the deceased at the time of the incident is to be accepted. Apart from that, the evidence of the official witnesses i.e., PWs.17 and 18, the doctors, who conducted post-mortem over the dead body of the deceased and treated the injured eye-witness i.e., PW.2, is clearly supported by the medical evidence under Exs.P.14 and 15, the post-mortem examination report and the wound certificate of PW.2. Further, the evidence of the prosecution witnesses is also supported by the evidence of the police officials, and the FIR, which was issued without any delay. Therefore, on the basis of the evidence of PW.2, the injured eye-witness, which is fully corroborated by the evidence of PWs.1, 3 and 4, it is clear that while A.2 caught hold of the deceased, A.1 beat the deceased with the axe, caused bleeding injuries on the neck and head, which resulted in his death. The same was also corroborated by the evidence of the official witnesses. Therefore, it can be safely held that the prosecution has proved its case against the accused.
17. The main contention of the learned counsel appearing for the appellants/accused is that most of the prosecution witnesses have turned hostile, and the supported witnesses i.e., PWs.1 to 4 are the interested witnesses being the close relatives of the deceased, and therefore their evidence cannot be relied upon for convicting the accused. In support of the same, the learned counsel relied upon the decisions referred to above. A perusal of the above citations reveals that the facts and circumstances of the said decisions are different from the facts of the case on hand. In the instant case, the prosecution has proved its case beyond reasonable doubt about the presence of PW.2 at the time of the incident, who went along with the deceased in search of the driver, and witnessed the attack on the deceased and tried to intervene the same, and in the process he too received a bleeding injury in the hands of A.1. PW.2, out of fear, immediately rushed to their house and informed about the incident to the inmates, basing on which, PW.1, the wife of the deceased lodged Ex.P.1 complaint to the police, which set the investigating agency in motion; and PW.2 was sent to the Hospital, where PW.18 treated PW.2 for the injury received by him and issued Ex.P.15 wound certificate. Therefore, the evidence of PWs.1, 2, 17, 18 and 20 together with the documentary evidence in Exs.P.1, P.8, P.12 to P.17 put together are consistent with each other and their evidence is crucial and corroborative.
18. The learned counsel for the appellants further submits that as per the post mortem examination report, Ex.P.14, in the stomach of the deceased, there was no food and therefore the incident might have occurred in the early hours of the day, but not at about 11.00 p.m. of 19.01.2009, and as such the benefit of doubt about the occurrence will be given to the accused. The same cannot be accepted for the reason that as per the prosecution basing on the earliest version of the PWs.1 and 2, the incident occurred at about 11.00 p.m. on 19.01.2009 by which time the deceased might not have taken the food and in the absence of which the question of possibility of having food in the stomach will not arise. However, that will not have any effect on the case, as the prosecution has proved that the incident occurred only on the specified time mentioned in all the primary official documents, basing on which the investigation was commenced. In view of the above and having regard to the facts and circumstances of the case, it is clear that the prosecution has proved its case beyond all reasonable doubt against the accused.
19. The learned counsel for the appellants further submits that as far as A.2 is concerned there is no specific evidence against her, and therefore the impugned judgment may be set aside in so far as A.2 is concerned. In the instant case, the evidence is common and PW.2, who is the crucial injured eye-witness, has clearly spoken in one tone that A.1 and A.2 have jointly participated in the attack on them and that they have caused the death of the deceased by axing him indiscriminately. In such a case, it is not possible to say that A.2 is not liable for the offence. On the other hand, the learned Public Prosecutor submits that though some of the prosecution witnesses have turned hostile, the crucial witnesses are PWs.1 to 4, and their evidence is fully supported and corroborated with the evidence of the official witnesses and the medical evidence. Therefore, the learned Public Prosecutor submits that the trial Court has rightly convicted both the accused and it is not a fit case where this Court can interfere with the matter.
20. As can be seen from the entire evidence on record, and in view of our discussion in the earlier paragraphs, we are of the view that the prosecution has proved its case beyond all reasonable doubt, and the trial Court has rightly found the guilt of the accused and imposed punishment. However, the point to be considered is whether the Court below was justified in imposing the punishment of imprisonment of life on the accused.
21. With regard to the quantum of punishment imposed, the aspect to be considered is as to what is the nature of the offence that is committed by the accused. As already noticed, the appellants/A1 and A2, who are husband and wife, have been found to have committed the offence of causing the death of the deceased. It is also on record that for sufficiently long time, the deceased had illicit intimacy with A.2 and for the said purpose, several panchayats were held and it was directed that the deceased should not have any relatonship with A.2 and should not even go to the house of A.2. The incident in question is taken place at about 11.00 p.m., in the night. According to the witnesses, at that late hour, the deceased along with PW.2 went to the bus stop in the village, which was abutting the house of A.2. The deceased was said to be waiting at the bus stop for his driver. The learned counsel for the accused/appellants submits that this act of the deceased in loitering around the house of A.2 in spite of being reprimanded several times by the village elders and the family members might have led to the incident in question, wherein it is alleged that A.1, the husband of A.2, has hacked the deceased with an axe on neck, which resulted in his instantaneous death.
22. Therefore, taking into consideration the above totality of the facts and circumstances, the conduct of the deceased and other circumstances surrounding the incident, we feel that the offence that is committed by the accused attracts the provisions of Section 304 Part-I of IPC, but not Section 302 IPC. Subject to this modification, the appeal is liable to be dismissed.
23. In that view of the matter, we are of the view that though the accused are guilty of the acts committed by him, the judgment impugned needs to be modified, as the accused are liable to be convicted for the offence under Section 304 Part-I IPC, instead of Section 302 IPC.
24. In the result, the appeal is dismissed. However, the conviction and sentence of imprisonment of the accused under Section 302 IPC, imposed by the trial Court in S.C.No.451 of 2009, dt.09.04.2010 are set aside. Instead, the accused are convicted for the offence under Section 304 Part-I of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for a period of ten years, with set off of the period already undergone by them. However, the sentence of fine imposed by the trial Court is sustained. The sentence of imprisonment and the fine imposed on A.1 with regard to the offence under Section 324 PC is maintained, and both the sentences shall run concurrently. The material objects, if any, shall be destroyed after the appeal time.
G. Chandraiah, J.
M.S.K. Jaiswal,J.
Dt.23.09.2014 Kv HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL
Criminal Appeal No. 579 of 2010 (Judgment of the Division Bench delivered by Hon’ble Sri Justice G. Chandraiah)
Dated: 23.09.2014 Kv
[1] AIR 2008 SC 533
[2] 2003 Crl.L.J. 914
[3] AIR 2002 SC 2707