CRLA/929/2007 of Nadakuditi Vara Prasad, Vs The State , on 30 December 2010

THE HON’BLE SRI JUSTICE K.C.BHANUAND

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

CRIMINAL APPEAL No. 929 OF 2007

DATED: 30-12-2010

Between:

Nadakudi Vara Prasad

-…AppellantA1

And

State of A.P. rep. byPublic Prosecutor, High Court of A.P.Hyderabad.

…Respondent-Complainant

THE HON’BLE SRI JUSTICE K.C.BHANUAND

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

CRIMINAL APPEAL No. 929 OF 2007

JUDGMENT: (per THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO)

This Criminal Appeal is filed by appellant-A1 in SessionsCase No.82 of 2006 on the file of the Special Sessions Judge-cum-X Additional District and Sessions Judge, Krishna atMachilipatnam, whereunder the appellant has been convicted forthe offence punishable under Section 302 of I.P.C. for causing thedeath of his sister, Gandhi Vijayalakshmi (deceased No.1) andsentenced to undergo imprisonment for life and also to pay a fineof Rs.100/-, and also convicted for the offence punishable underSection 326 of I.P.C. for causing grievous injuries to his father, Nadakudi Adesesha Rao (deceased No.2) and sentenced toundergo rigorous imprisonment for five years.

2. The case of the prosecution is that P.W.1 is the eldestson, A2 is the second son and deceased No.1 is the daughter ofdeceased No.2. As she was discarded by her husband, she wasstaying with her father and mother. Deceased No.2 was havingsome landed properties and purchased some other properties andhe purchased Ac.2.30 cents of land in the name of his sons andAc.1.30 cents of land in the name of his wife and Ac.1.00 of land inthe name of his eldest daughter-Anthuma Devi. There was noproperty in the name of deceased No.1. A1 started living atVijayawada along with his two sons and his wife A2 and hesuffered some loss. Deceased No.2, due to troubles sold awayAc.1.30 cents of land, which is in the name of his wife to P.W.7 fora consideration of Rs.6,50,000/- and took an advance ofRs.2,00,000/-. Coming to know about it, A1 came to A.Konduruand constructed a thatched hut near the house of deceased No.2and demanded share from the sale proceeds, for which deceasedNo.2 refused. A1 also quarrelling with deceased No.2 frequently. Deceased No.2 gave a report against him and the police warnedA1. There was also a panchayat with regard to above disputes. On 15-12-2004, wife of deceased No.2 went to the house of hereldest daughter and A1 thought that she has gone for registrationof the land. Therefore, A1 along with his wife and children hatchedup a plan to do away with the life of deceased No.2 and on 06-12-2004 at about 6.00 A.M., when deceased No.2 came out of thehouse, A1, A2 and their sons picked up a quarrel with him and A1hacked deceased No.2 with Pota Kathi and deceased No.2 felldown. In the mean time, A2 caught hold of the tuft of hair ofdeceased No.1 and A1 went to her and with the same weaponhacked deceased No.1 on her neck and she died instantaneously. P.W.1 raised cries and brought an Ambulance and shifteddeceased No.2 to Government Hospital, Tiruvuru. Deceased No.2was unconscious. The statement of P.W.1 was recorded by thepolice and it was registered as a case in Cr.No.93 of 2004 underSections 302 and 307 r/w 34 IPC and copies of F.I.Rs were sent toall the concerned. During the course of investigation, inquest was held over the dead body of deceased No.1 and panchanama of thescene of offence was conduced and dead body was sent for post-mortem examination. On 17-12-2004 A1 to A3 were arrested andthe confessional statement of A1 was recorded and the weapon ofoffence was seized. The statement of witnesses was alsorecorded. The investigation discloses that the name of SrinivasaRao, who is the son of A1 and A2 mentioned in the F.I.R. is notcorrect, that he was not involved in the crime, that he was atCalcutta and his name was deleted. Deceased No.2 wasdischarged from Sowmya Apollo Hospital on

Conclusion

12-02-2005 and thereafter, he died on 13-04-2005. The inquestwas held over the dead body of deceased No.2 and the dead bodywas sent for post-mortem examination. It was opined that thedeath was due to cardio respiratory arrest, which is due to headinjury. Therefore, charge sheet was filed against A1 to A3 for theoffence punishable under Section 302 r/w 34 IPC.

3. The case was taken on file as PRC No. 25 of 2005 by theJudicial Magistrate of I Class, Tiruvuru. The learned Magistratecommitted the case to the Court of Sessions, Krishna. TheSessions Court made over the case to the X Additional Districtand Sessions Judge, Krishna at Machilipatnam for disposal inaccordance with law.

4. After appearance of A1 and A2, charges under Sections302 IPC against A1 and A2, 302 IPC against A1, 302 IPC againstA2, 302 r/w 34 IPC against A2 and 326 and 307 IPC against A1and A2 were framed, read over and explained to them in Telugu,for which they pleaded not guilty and claimed to be tried.

5. On behalf of the prosecution, P.Ws. 1 to 20 wereexamined and Exs.P1 to P25 and M.Os. 1 to 8 were marked. Thecontradictory statement of P.W.4 was marked as Ex.D1.

6. After the evidence of the prosecution is over, theaccused were examined under Section 313 Cr.P.C. with referenceto the incriminating material appearing against them in theevidence of prosecution witnesses. They denied the same. No oral evidence was adduced.

7. After considering the evidence on record, the learnedSessions Judge found A2 not guilty of the offences with which shewas charged and accordingly, acquitted her. He found A1 guilty ofthe offence punishable under Section 302 IPC for causing thedeath of deceased No.1 and guilty of the offence punishable underSection 326 IPC for causing multiple grievous injuries to deceasedNo.2 and accordingly, convicted and sentenced him as above.Aggrieved thereby, the present appeal has been preferred.

8. Head the arguments of Smt.A.Gayatri Reddy, learnedcounsel for the appellant-A1 and also the learned PublicProsecutor.

9. The points that arise for consideration are: 1) whether theprosecution has proved that the appellant-A1 has committedmurder of deceased No.1, 2) whether the prosecution has provedthat the appellant-A1 has committed grievous injuries to deceasedNo.2 and 3) whether the conviction and sentence imposed by thelearned Sessions Judge are legal and sustainable.

10. POINTS:

The evidence of P.W.1, who is the son of deceased No.2and who is only an eye witness to the incident is to the effect thatthere were disputes between deceased No.2 and A1 with regard tothe share of the property given to the mother when it was purportto be sold and earlier to the incident, A1 demanded his father togive the property and the money, for which he refused. Therefore,they have developed a grouse on the deceased. On 16-12-2004 atabout 6.00 A.M., A1 to A3 (since A3 deleted from the chargesheet) came and quarrelled with his father and then immediately,A1 picked up a Pota Kathi and hacked his father on his neck, chinand on his right hand and due to that blows, deceased No.2 fallendown on the ground. With regard to the other attack, it is useful toextract particular statement, which reads that “in the meantime,A2 caught hold of the tuft of my sister (D1) and hacked her with

the same Potakathi on her neck and my sister (D1) diedinstantaneously on the spot in the pool of blood.” Thereafter, hisfather was taken to Government Hospital, Tiruvuru and hisstatement Ex.P1 was recorded by the police. In the cross-examination, the previous disputes with regard to the property andthe complaint given to the police are elicited. He also identifiedM.O.2 as the weapon of offence used by the accused. In thecross-examination it was also further elicited that his father was alife convict in the murder case of one A.Dakshina Murthy and hewas released on remission after completion of seven years. According to him, his father did not sell the properties given totheir mother. According to him, A1 is still having Ac.1.00 of landexcluding the land sold by him to an extent of Ac.1.30 cents. Hefurther stated that he does not know whether the deceased fatherhas received any sale consideration from the purchasers, but hecame to know that he received only Rs.2,00,000/- from thepurchasers. He further stated that he did not save his father fromA1 and after A1 hacked his father, he ran towards his sister andhe did not come to the rescue of his sister from the hands of A1. He denied the suggestion that A1 was falsely implicated in thiscase.

11. P.Ws. 2 and 3 did not support the case of theprosecution and they were declared hostile by the prosecution.

12. P.W.4 is no other than the mother of A1 and P.W.1. She spoke about the claim of A1 for money from the propertiesbelonging to her, which was sold and her absence on the date ofincident and going to her daughter’s house at Eluvolu and returningafter coming to know about the incident.

13. P.W.5 did not speak anything about the attack on thedeceased persons and claims to have gone to tuition class andreturned after the incident.

14. The evidence of P.W.6 is that on 01-12-2004 a G.D.entry was made about the disputes between A1 and deceasedNo.2 and Sub Inspector of Police warned them not to quarrel.

15. P.W.7 stated that he purchased Ac.1.30 cents of landfrom P.W.4 for a consideration of Rs.6,50,000/- and paidRs.2,00,000/- towards part consideration and also paidRs.1,00,000/- to P.W.1 towards balance of sale consideration. There is no cross-examination of this witness.

16. The evidence of P.W.8 is that earlier to the incident,there was a quarrel between A1 and his father and he warnedthem not to quarrel.

17. P.W.9 spoke about taking of photographs of the sceneof offence.

18. The evidence of P.W.10 is about mediation forsettlement of the disputes between A1 and deceased No.2 andalso his knowledge about the sale of the property of P.W.4 andreceiving of money. He advised deceased No.2 to approach a civilCourt.

19. The evidence of P.W.11 is about his presence at thetime of observation of the scene and also the inquest over thedead body of deceased No1. He also claims that in his presenceon 17-12-2004, A1 to A3 were interrogated by the police and A1 toA3 gave voluntary confessional statement and the police seizedM.O.2.

20. P.W.12 stated that he was present at the time of inquestover the dead body of deceased No.2.

21. The evidence of P.W.13 is that he conducted post-mortem examination over the dead body of Adisesharao(deceased No.2) and found the following injuries:

1. Bed sore is present on the left shoulder- 3 x 3 cm

2. Hed sore is present in between the two buttocks- 10 cm x 10 cm

3. Small bed sore on the right shoulders 1 cm x 1 cm

4. Bed sore is present on the left gluteal region 10 cm x 10 cm

5. Bed sore on the right heel 5 cm x 5 cm

6. Bed sore on the right gluteal region 10 cm x 10 cm

7. Healed scar on the left side f the face below the mandible horizontal indirection 10 cm in length.

8. Healed scar on the left temporal occipital region of the head posteriorto the left ear 3 cm x 2cm x 1 cm vertical in direction.9.Haled scar on the left shoulder 2 cm in length10.Healed skull fracture (temporal occipital region of the left side of thehead is present.

He gave Ex.P12 post-mortem certificate. He did not giveany specific cause for the death of the individual.

22. The evidence of P.W.15 is that he conducted post-mortem examination over the dead body of P.Vijayalakshmi(deceased No.1) and found the following injuries:

1. Abrasins irregular on right side of lower part of chest and lefthypochrondium of abdominal wall measuring 7 cm length and 3 to 4 cmwidth.

2. Incised wound on right side of anterior surface of neck 6 x 6cm x 4 cmdepth involved pars are skin, subcutaneous tissue and right ceroticanterior and vein cut transversely which is total with neck musclesternomactied latel parly cut and medial head completely cut on rightside of neck one inch above the medical end of right clavicle bone.

He issued Ex.P18 post-mortem certificate opining that theinjuries are ante-mortem and they are sufficient to cause thedeath.

23. The evidence of P.Ws. 14, 18 and 19 is about theinvestigation done by them in this case.

24. The evidence of P.W.16 is that A3-Srinivasa Rao wasnot present on the date of alleged incident as he was at Calcutta.

25. The evidence of P.W.17 is about taking of photographsof deceased No.2.

26. The learned counsel for the appellant contends thatthere is solitary statement of P.W.1 and that he is related to theaccused and the deceased, that he is interested witness and thereare improvements in his version and the lower Court having givenbenefit of doubt on the same statement of P.W.1 about theculpability of A2 and the Investigating Officer having deleted the name of A3-Srinivasa Rao from the crime, the Court should nothave relied upon the uncorroborated testimony of P.W.1. Furthermore, the evidence of P.W.1 is inconsistent in all aspectsand particularly with regard to the attack on deceased No.1Vijayalakshmi. Once a benefit of doubt was extended for theattack on deceased No.2 by disbelieving the evidence of theprosecution, the accused should not have been convicted for thecause of the death of deceased No.1.

27. On the other hand, learned Public Prosecutor contendsthat though P.W.1 is related, but he is not interested in implicatingthe accused and suppressing the truth to eliminate the real culpritand the lower Court has rightly accepted his evidence andtherefore, there is no need to interfere with the finding of the lowerCourt.

28. As rightly contended by the learned counsel for theappellant the disputes between the accused and deceased No.2relate to financial liability. Furthermore, P.W.1 is one of the sonsand he is also interested in some of the properties and his fatherwas living with him on the date of incident. As can be seen fromthe evidence of P.W.7, P.W.1 has got sum of Rs.1,00,000/- fromthe purchaser P.W.7. Therefore, P.W.1 being in management ofthe affairs of the father and interested in the management furthercannot be denied. Therefore, when his father sells the propertygiven to his wife and when he prefers one of the children or someof the children excluding the accused persons, naturally there is agrievance against his father and demand by the accused for arightful share or a portion of the money to be given to him thoughhe may be having his own properties and that he might have soldsome of the properties which have got partitioned. Therefore, fromthe circumstances and the cross-examination, it is quite clear thatthere are ill-feelings between deceased No.2 and A1 and they onlyrelate to the derivation of the money by sale of properties. Addedto that, earlier also there was a quarrel and a complaint was givento the police and a mediation was held. Therefore, on the date ofincident, A1 coming to the house of deceased and witnessed that his mother P.W.4 has gone for registration of the land cannot beruled out. Furthermore, P.W.1 is a natural witness to be presentat the house when the incident has taken place. Merely becausethere are some differences in the family members, the question iswhether a part of the statement given by P.W.1 cannot beaccepted and whether the other part of the statement can belooked into.

29. As rightly contended by the learned counsel for theappellant, deceased No.2 survived for nearly five months after theincident because the incident has happened on 15-12-2004 and he died on 13-04-2005. He was said to have beendischarged from the hospital within two months. During thisperiod, no effort was made by the Investigating Officer to recordthe statement of deceased No.2 and he is the best person whocould have spoken more about the offence rather than P.W.1. Therefore, the laches on the part of the prosecution in notrecording the statement of the deceased No.2 who survived for along time is a circumstance to some extent favourable to theaccused so far as the totality of the incident is concerned.

30. So far as attack on deceased No.1 is concerned, it isthe specific case of the prosecution that A2 and his son SrinivasaRao caught hold of deceased No.1 and A1 is said to have hackedher. This version is given in Ex.P1. But contrary to that, specificallegation in Ex.P1 statement of P.W.1 extracted above clearlygoes to show that it was A2 and her son who caught hold ofdeceased No.1 and hacked her. The evidence of P.W.1 in theCourt does not attribute that A1 is the assailant of deceased No.1 and caused her death. In fact from the beginning an effort wasmade to attribute overt-acts to A2 and in fact a specific chargewas framed against A2 being responsible for the murder ofdeceased No1. When the evidence of P.W.1 before the Courtdoes not show with precision attributing an overt-act against A1for attack on deceased No1, the Court cannot presume or takeinto consideration other developments, which he was visualizingduring the cross-examination. In fact the Public Prosecutor also did not elicit anything in re-examination as to identifying the actualperson who has attacked deceased No.1. Such an ambiguousstatement was given by him in the chief-examination. As rightlycontended by the learned counsel for the appellant when there isan admission by P.W.1 to show that A2 and A3 are also involvedin the crime and when such serious contradictory statement wasgiven destroying the prosecution case, the evidence of P.W.1about the attack on deceased No.1 by A1 cannot be completelyrelied upon without there being any corroboration. Evidentlyexcept the evidence of P.W.1, there is no corroboration to supporthis evidence on the attack on deceased No.1 or deceased No.2. Therefore, for the above reasons, we find that the appellant-A1 isentitled for reasonable benefit doubt for causing the death ofdeceased No.1 and his complicity in causing the death cannot besaid to have been established. The reasons for disbelieving theevidence of P.W.1 about the involvement of A2 and A3 shall alsobe extended as benefit of doubt to the appellant-A1 so far asdeceased No.1 is concerned. Hence, the appellant-A1 is found notguilty for the offence punishable under Section 302 IPC forcausing the death of Vijaya Lakshmi (deceased No.1). Therefore,we find that the conviction and sentence imposed against theappellant-A1 for the offence punishable under Section 302 I.P.C.are not sustainable and accordingly it is liable to be set aside.

31. So far as attack on deceased No.2 is concerned, thelower Court has found that the deceased No.2 received multiplegrievous injuries and there is no proof to cause the death and thelower Court rightly convicted the appellant-A1 for the offencepunishable under Section 326 IPC. Though part of evidence ofP.W.1 may not be reliable, at the same time so far as the attackon deceased No.1 is concerned, his statement lacks anycredibility. Therefore, we do not find any reason to interfere withthe conviction recorded against the appellant-A1 for the offencepunishable under Section 326 IPC and sentence thereof forcausing injuries to deceasedNo 2.

32. In the result, the conviction and sentence recorded bythe X Additional District & Sessions Judge, Krishna atMachilipatnam, vide judgment dated 21.06.2007 in Sessions CaseNo.82 of 2006, against the appellant/A.1 of the offence punishableunder Section 302 I.P.C. are set aside, while confirming theconviction and sentence recorded against the appellant/A.1 of theoffence punishable under Section 326 I.P.C. Period of remandunderwent by the appellant/A.1 during the course of investigation,trial and after conviction shall be given set off under Section 428Cr.P.C.

33. The Criminal Appeal is, accordingly, partly allowed tothe extent indicated above.

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K.C.BHANU, J

DATED:30-12-2010Hsd

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N.R.L.NAGESWARA RAO, J