CRLA/911/2009 of Gedda Sreenivasa Rao , sreenu Vs The State of Andhra Pradesh rep. by its Public Prosecutor on 31 December 2013

CRIMINAL APPEAL No.911 OF 2009

JUDGMENT:- (per Hon’ble Sri Justice K.C.Bhanu)

This Criminal Appeal, under Section 374(2) of the Code ofCriminal Procedure, 1973 (for short, "Cr.P.C."), is directed against thejudgment, dated 30.06.2009, in Sessions Case No.137 of 2007 on thefile of the II Additional Sessions Judge, Fast Track Court,Parvathipuram whereunder and whereby, appellant herein/soleaccused was found guilty of the offence punishable under Section 302of the Indian Penal Code, 1860 (for short, “I.P.C.”) and accordingly,convicted and sentenced to undergo rigorous imprisonment for life and-to pay a fine of Rs.500/ and in default of payment of fine amount, tosuffer simple imprisonment for a period of six months.

2. The brief facts that are necessary for disposal of the presentappeal may be delineated as follows:

One Gadde Bhavani (hereinafter referred to, as “the deceased”)is the wife of the accused. The deceased developed illicit intimacywith some other persons and for that reason, disputes arose betweenthe accused and the deceased. Prior to the offence, on one day, theaccused beat the deceased with an iron rod on her head and causedbleeding injury. For that incident, she gave a report to ParvathipuramPolice, who registered the same as Crime No.23 of 2007 for theoffence punishable under Section 324 I.P.C. Subsequently, thecase was settled in Lok Adalat at the instance of elders.

One week prior to the date of offence, the deceased along withher children – P.W.3 and L.W.8 – G.Nagaraju, left the house without informing the accused and took the house of P.W.1 on payment of rentand was residing there. On 31.03.2007, at about 10.45 a.m., while thedeceased and P.W.3 were present in the house, the accused camewith a knife with an intention to cause death, abused her and hackedher with the knife indiscriminately and on seeing the same, P.W.3came outside and raised an alarm and informed P.W.1. P.Ws.2, 4 and5, and others rushed to the scene of occurrence and witnessed theincident. In that galata, the accused also received simple injury on hisleft hand ring finger. Then, P.W.1 rushed to the shop of P.W.6 andinformed the same to him, who in turn informed to police and P.W.16-Sub Inspector of Police, after making G. D. Entry, instructed P.W.8 –Assistant Sub Inspector of Police, Komarada Police Station, who wasIncharge of Rakshak Vehicle to go to the scene of occurrence andaccordingly, P.W.8 along with P.W.10 and another P.C.75 (L.W.25)rushed to the scene of occurrence and shifted the injured to AreaHospital, Parvathipuram for treatment. Then, P.W.8 deputed P.W.10and another Police Constable - L.W.25 to catch the accused, who inturn brought the accused along with M.O.2 - blood stained knife toParvathipuram Police Station.

P.W.16, who received death intimation from the hospital,registered the case as Crime No.30 of 2007 for the offence punishableunder Section 302 I.P.C. and informed the same to P.W.7 – CircleInspector of Police.

P.W.17 visited the scene of occurrence and prepared roughsketch under Ex.P-15 and prepared Ex.P-3 – observation report. Heconducted inquest over the dead body of the deceased under Ex.P-4after examining P.Ws.1, 2, 4, 5, 6 and others.

On the same day, P.W.17 arrested accused, seized M.O.2 andblood stained clothes. After completion of investigation, he filed chargesheet.

3. The trial Court framed the following charge against the accused:“Firstly:- That you on 31.3.2007 at about 10.45 A.M., atManikanta Colony, Parvathipuram, you entered into the rentedhouse of the deceased Gedda Bhavani who is your wife andhacked with the knife on her left cheek and on her severalparts of the body and thereby you did commit murder and thatyou thereby committed an offence punishable under section302 I.P.C. and within my cognizance. ”

4. When the above charge was read over and explained to theaccused in Telugu, he pleaded not guilty and claimed to be tried.

5. To substantiate the charges, the prosecution examined P.Ws.1to 17 and got marked Exs.P-1 to P-15 besides case properties –M.Os.1 to 13.

6. After closure of the prosecution evidence, the accused wasexamined under Section 313 Cr.P.C. with reference to theincriminating circumstances appearing against him in the evidence ofprosecution witnesses. He denied the same. On behalf of theaccused, none was examined but Ex.D-1 was got marked.

7. The trial Court, basing on the evidence available on record,found the accused guilty of the charge under Section 302 I.P.C. andaccordingly, convicted and sentenced him, as stated supra.Challenging the conviction and sentence, the present appeal is filedby the accused.

8. The points for determination are:

“Whether the prosecution proved its case beyond allreasonable doubt against the appellant/sole accusedof the offence punishable under Section 302 I.P.C.and whether the judgment of the trial Court is correct,legal and proper or not?”

9. POINTS:- Learned counsel for the appellant/sole accusedcontended that P.Ws.1 and 2 are planted witnesses to the occurrence; that the investigation conducted by P.W.17 is perfunctory; that P.Ws.1,2, 4 and 5 are set up witnesses to implicate the accused falsely; thatthe station diary in which G.D. entry has been made, which showsabout the earliest version of the incident, has not been produced; thatthe evidence of P.W.3 remained unchallenged in the crossexamination to the effect that somebody other than the accusedcommitted the offence; that as the deceased was having illicitconnections with several persons, the possibility of committing murderby one of the paramours of the deceased cannot be ruled out; thatthere is a discrepancy with regard to recovery of M.O.2; that theevidence would also disclose that suspicion can be raised against oneBucchi Pantulu; that the trial Court cannot rely upon the answers givenby the accused when he was examined under Section 313 Cr.P.C. asevidence and that therefore, it is not safe to convict the accused basingon the evidence adduced by the prosecution and therefore, he prays toset aside the conviction and sentence recorded against the accusedby the trial Court.

10. On the other hand, learned Additional Public Prosecutorcontended that on hearing the cries of P.W.3, P.Ws.1 and 2 rushed tothe scene of occurrence and saw the accused hacking the deceasedwith a knife and causing as many as 24 ante mortem external injuries;that P.Ws.1 and 2 are totally independent witnesses and there is noother reason to doubt their testimony; that P.Ws.4 and 5, who, afterhearing the cries of P.W.3, rushed to the scene of occurrence and sawthe accused coming out with a blood stained knife; that the eyewitnesses’ evidence of P.Ws.1 and 2 is completely in corroborationwith the medical evidence; that M.O.2 contained ‘B’ group of blood,which is the same blood group of the deceased, as seen from Ex.P-14- Regional Forensic Science Laboratory report, as the clothes of thedeceased also contained the same blood group and that in view of theoverwhelming evidence, the trial Court rightly convicted the accused and there are no grounds to interfere with the same and hence, heprays to dismiss the appeal.

11. P.W.17 is the Investigating Officer, who conducted inquest overthe dead body of the deceased in the presence of P.W.9 and othersunder Ex.P-4. The inquest mediators noticed certain injuries on thebody and the same have been incorporated in Column No.VII of theinquest report. Similarly, the inquest mediators opined in ColumnNo.XV that the deceased died as a result of multiple injuries. Afterinquest, the dead body of the deceased was subjected to post mortemexamination.

12. P.W.15 is the Doctor, who conducted autopsy over the deadbody of the deceased on 01.04.2007 at 7 a.m. and found the followingante mortem external injuries:

External examination:-

“1. A cut injury right forehead 3 x 3 x 05 cm. brain substance exposed. exposed.

2. A cut injury over left zygoma (cheek bone) 3 x 05. x 05. cms.

3. A cut injury over left lower jaw 2.5 x 05 x 05 cms.

4. A cut injury over left parietal scalp 4.5 x 05 x 05. cms.

5. Cut injury of left frontal scalp 4 x 05. x 05 cms.

6. Cut injury right tempero-parital scalp 5 cm x 1 cm x 05. cms.

7. A through and through laceration from skin to mucosa right lower jaw 6 x 1.5 x 1 cms. lower jaw 6 x 1.5 x 1 cms.

8. A laceration over lower jaw right ½ cm below the above injury 3.5 x 1 x 1 cms from skin to mucosa. 3.5 x 1 x 1 cms from skin to mucosa.

9. A punctured wound over right angle of mandible 2.5 cm x 3.5 cm. 3.5 cm.

10. Cut injury left side of neck near occipital region 2.5 x 05. x 05 cm 4 cms away from left ear. cm 4 cms away from left ear.

11. Cut injury below right ear 2.5 x 05. x 1 cms.

12. Cut injury on right side of neck 5 x 1 x 1 cms.

13. A laceration injury just below lower jaw 6 x 1 x 1 cms.

14. A laceration front of right forearm 5 x 0.5 x 05 cms.

15. A laceration just below 14[th] injury 5 x 2 x 3 front of right forearm. forearm.

16. A laceration cut right hypothenear palm 5 x 0.5 x 1 cms.

17. A laceration of right of right forearm near wrist joint 5 x 1 x 0.5

cms.

18. Three laceration injuries over back of right wrist each 2 x 05.05 cms. cms.

19. Cut injury right index dorsum 2.5 x 05 x 05 cms.

20. Cut injury dorsum of hand 2 cm x 05. x 05 cms.

21. A laceration 2 cm below left wrist 6.5 x tendons deep x 4 cms.

22. A cut injury left hypothenar palm 3 x 1 x 1 cms.

23. A cut injury left thenar palm 3.5 x 05. x 1 cms.

24. A cut injury left palm 2 x 05. x 05 cms.”

Internal examination:-

“Scalp : Injuries as mentioned above.

Skull : Fracture of mid frontal bone, exposing brain substance.

Brain and meninges : Pale and intact.

Neck : Fracture of both cornua of hyoid present.

Right external carotial artery and facial artery torn and punctured, neck structures congested.

Chest : Wall in tact. Lungs in tact, pale on cut section.

Heart : Intact, empty pale on cut section.

Abdomen : Wall in tact.

Stomach and intestines, Bloated with gas, pale empty on cut section.

Liver, spleen and kidneys : Intact, pale on cut section.

Uterus : Intact, empty.

Bladder : empty

Spine and spinal card : Intact, normal.

Long bones : Intact, normal.”

According to him, the approximate time of the death of the deceased

might be 21 hours prior to his examination. He opined that the cause ofdeath of the deceased was due to Hypovelemic shock (hemorrhage)due to multiple injuries. He issued Ex.P-11 – Post Mortem report. Hestated that all the external injuries were simple in nature and eachinjury, by itself, was not sufficient to cause the death of the deceased.When a suggestion was given that all the internal injuries are notsufficient to cause the death of the deceased, the same was denied. He opined that the internal injury on the skull and the external injury onthe neck are sufficient to cause the death in the ordinary course ofnature. The opinion, as spoken to by P.W.15, and the recitals inEx.P-11 remained unchallenged. So, the prosecution is able toestablish the homicidal nature of the death of the deceased beyond allreasonable doubt.

13. Now, it has to be seen as to whether the accused is the assailantof the deceased or not?

14. The deceased is no other than the legally wedded wife of theaccused. After their marriage, they lived for some time happily. Thereafter, some disputes arose between them. One week prior to thedate of the incident, the deceased started living in a rented houseowned by P.W.1 along with her children. By the date of incident,P.W.1 and her children were residing in the rented house. Theincident in question had taken place on 31.03.2007 at about 10.45a.m. at Manikanta Colony, Parvathipuram, Vizianagaram District. Thescene of occurrence is not in dispute, which is a thatched house withasbestos sheets owned by P.W.1. P.Ws.1, 2, 4 and 5 have stated thatthey found the dead body of the deceased lying in a pool of blood inthe rented house of the deceased. Even the accused is not seriouslydenying or disputing about the taking place of the incident in the rentedhouse of the deceased.

15. The entire case rests upon the evidence of eye witnesses –

P.Ws.1 and 2 and the circumstantial witnesses – P.Ws.4 and 5. Theyare the natural witnesses to be present at the time of the incidentbecause the house of P.W.1 was situated five houses away from therented house of the deceased. Similarly, the house of P.W.2 issituated opposite to the house of the rented house of the deceased. The house of P.W.5 was located by the side of the scene ofoccurrence. These aspects have been clearly shown in Ex.P-15,which is the rough sketch, and Ex.P-3, which is the scene ofobservation report. Therefore, their presence at the relevant point oftime of the incident is quite natural and probable. The presence ofthese witnesses at the time of incident has not been deniedspecifically in the cross examination.

16. The evidence of P.W.1 would go to show that on the date of theincident, while she was going to one Puvvala Sankararao’s house, theson of the deceased came out of the house and cried in a loud voicethat his father hacked his mother with a knife and on that, she wentinside the house and witnessed the accused hacking the deceased;that she raised cries as “champestunnadu, champestunnadu” (he iskilling, he is killing); that P.Ws.2 and 5 came to the house andwitnessed the incident; that when they questioned the accused as towhy he was stabbing the deceased, he replied that he tied the tali andshe was his wife and that she informed the same to her husband –P.W.4. P.W.4 deposed that he heard the cries of P.W.3 as “maaammanu maa nanna champestunnadu” (my father is killing my mother)and rushed to the scene of occurrence and witnessed the accusedcoming outside from his house with a knife and at that time, he foundthe deceased lying in a pool of blood.

17. P.W.2, whose house was situated opposite to the house of thedeceased, stated that on the date of the incident, at 10.30 or 11 a.m.,while she was sitting on the pial of her house, she witnessed weepingof the son of the accused and also heard his cries that his father was hacking and killing his mother with a knife and then, she rushed to thescene of occurrence where she found P.W.1; that the accused hackedand killed the deceased in their presence; that they requested theaccused not to hack and kill the deceased, but without hearing to theirrequests and cries, the accused hacked the deceased saying that thedeceased was his wife and he tied tali. Practically, the evidence ofP.Ws.1 and 2 remained unchallenged. Nothing has been elicited intheir cross examination to doubt their testimony. They are totallyindependent witnesses. They have no grouse or enmity against theaccused so as to implicate him in a case of this nature falsely. Similarly, they have no affinity with the deceased so as to speaksomething in favour of the prosecution. Strong grounds must exist todisbelieve the testimony of an independent witness. They are thepersons who have no partisan attitude.

18. Similarly, P.W.5 heard the cries from P.W.3 as “maa ammanumaa nanna narikestunnadu” (my father is hacking my mother) and onthat, she rushed to the scene of occurrence and witnessed the incidentpersonally; that when she questioned the accused as to whether hewas a human being or an animal, the accused replied in an aggressivemood that he tied tali to her and that he noticed hacked injuries on thebody of the deceased. He has no motivated axe to grind.

19. On the date of the incident, at 10.30 or 11.00 a.m., P.W.1 went tothe pan shop of P.W.6 and telephoned to the police. On receipt of thesaid information with regard to the incident, P.W.16 deputed P.W.8 –Assistant Sub Inspector of Police and P.W.10 - Police Constable torush to the scene of occurrence. To that effect, he made a G.D. entry inthe station general diary. P.Ws.8 and 10 rushed to the scene ofoccurrence and at that time, the deceased was struggling for life. Theyshifted her to the hospital and informed the same to P.W.16, who inturn, went to the hospital and tried to record the statement of thedeceased, but she was not in a position to speak anything. Therefore, he rushed to the scene of occurrence and recorded the statement ofP.W.1 under Ex.P-1. The recitals in Ex.P-1 would go to show that onthe date of the incident, i.e., on 31.03.2007, at about 10.45 a.m., onhearing the cries of the son of the accused to the effect that his fatherwas killing his mother with a knife, she rushed to the scene ofoccurrence and saw the accused hacking the deceased with a knifeindiscriminately, and then, she informed about the same to the policethrough telephone and the police staff came and took the deceased tothe Government Hospital. The recitals in Ex.P-1 are not shown to befabricated or brought into existence to suit the case of the prosecution. Once the recitals in Ex.P-1 are found to be true and correct, they canbe acted upon to support the evidence of P.W.1. So, the earliestversion, as mentioned in Ex.P-1, is completely in corroborationwith the evidence of P.W.1.

20. Learned counsel for the appellant contended that the stationdiary in which the G.D. entry was made has not been produced by thepolice for the reasons best known to them. Within two hours after theincident, Ex.P-1 was brought into existence. Mere non-production of the station diary containing G.D. entry is not a ground tothrow away the entire prosecution case, especially when it rested onunimpeachable evidence. Nothing prevented the accused to causeproduction of the station diary containing G.D. entry when he wascalled upon to enter into his defence.

21. P.W.7 is one of the mediators, who settled the dispute betweenthe deceased and the accused on one occasion. He stated thatpreviously, the deceased lodged a complaint against her husband fortreating her cruelly and thereupon, the police registered a case againstthe accused and that however, that matter has been settled in LokAdalat.

22. Another important circumstance is the seizure of M.O.2. All the

witnesses have categorically stated that M.O.2 is the weapon, whichwas in the hands of the accused at the time of committing the offence. Though there was a discrepancy with regard to the place of seizure ofthe weapon, the fact remains that M.O.2 is the weapon used in thecommission of the offence. It contained “B” blood group. Similarly, theclothes of the deceased viz., the blouse, petticoat, the saree, and herchappals contained the same blood group. So, from the recitals inEx.P-14, it can be said that M.O.2 is the weapon of offence. All thewitnesses have categorically stated that by the time they rushed to thescene of occurrence, they saw the accused in possession of M.O.2. Whether it was seized at the instance of accused or whether it wasseized from the place of occurrence or not, it makes no difference. So,from the above evidence, it is clear that the accused is the assailant ofthe deceased. He intentionally caused several injuries on thedeceased and the cumulative effect of these injuries resulted in thedeath of the deceased. So, from the nature of the injuries and theweapon used, it can be said that the act of the accused was done withan intention to kill the deceased in suspecting her fidelity. Afterelaborate consideration of the evidence on record, the trial Courtrightly found the accused guilty of the offence punishable underSection 302 I.P.C. and accordingly, convicted him and that orderneeds no interference by this Court. Hence, the appeal is devoid ofmerit and is liable to be dismissed.

23. In the result, the Criminal Appeal is dismissed confirming thejudgment, dated 30.06.2009, in Sessions Case No.137 of 2007 on thefile of the II Additional Sessions Judge, Fast Track Court,Parvathipuram.

24. Miscellaneous Petitions pending, if any, in this Criminal Appealshall stand closed.

______________________

JUSTICE K.C.BHANU

_______________JUSTICE ANIS

31[st] December, 2013AMD

THE HON'BLE SRI JUSTICE K.C.BHANUANDTHE HON’BLE MRS JUSTICE ANIS

CRIMINAL APPEAL No.911 OF 2009

AMD

Dated: 31.12.2013