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Andhra High Court · body

2000 DIGILAW 418 (AP)

GORLI MANGAIAH v. State

2000-06-22

D.S.R.VERMA, R.M.BAPAT

body2000
( 1 ) THE sole accused in session Case No. 510 of 1996 who was tried by the Additional Sessions Judge, Ongole is the appellant herein. The accused-appellant was tried for causing murder of D1 and D2 and also attempting to commit murder of his wife Anasuya (PW1 ). On evidence the learned Judge found that the prosecution was able to bring home guilt of the accused, the therefore, he proceeded to convict the accused-appellant and sentenced him on two counts under Section 302 IPC and on each count, he was sentenced to undergo imprisonment for life and to pay fine of rs. 500/-, in default to undergo simple imprisonment for three months. The learned Judge further convicted the accused- appellant of the offence punishable under Section 307 IPC and sentenced him to suffer imprisonment for five years and to pay fine of Rs. 500/-, in default to undergo simple imprisonment for three months. The substantive sentences imposed upon the accused-appellant were made to run concurrently. ( 2 ) IT is alleged by the prosecution that on 25-11-1995 in early hours i. e. , at about 4. 00 a. m. , the accused killed his two children and attempted to commit murder of his wife suspecting her fidelity and also suspecting the legitimacy of the children. ( 3 ) THE prosecution case be briefly narrated as. follows: pw1 Gorli Anasuya was residing in a hut in a locality known as Kabela in Chirala town along with her two children i. e. , Gorli durga. Prasad-hereinafter referred to as dl and Gorli Smeetha-here inafter referred to as D2 and also along with her husband. Originally this family belongs to Srikakulam district, but about 6 years prior to the incident, they shifted to Chirala for eking out their livelihood. It is further stated by the prosecution that about 20 more persons who also belong to Srikakulam had shifted their residence to Chirala and they are residing in the same locality. ( 4 ) THE accused in this case who happened to be the husband of PW1 was a rickshaw puller and he was supporting his family, whereas PW1 was doing cooly work. In all the accused and PW1 had four children, but two of his children were residing with the sister of PW1 at the time of the incident. ( 4 ) THE accused in this case who happened to be the husband of PW1 was a rickshaw puller and he was supporting his family, whereas PW1 was doing cooly work. In all the accused and PW1 had four children, but two of his children were residing with the sister of PW1 at the time of the incident. Therefore, at the time of the incident the family of the accused and the deceased consists of 4 persons in all. ( 5 ) SINCE one month prior to the incident, the accused was not feeling well, and therefore, he had stopped pulling rickshaw and was resting at home. But the main reason for stopping Rickshaw pulling was that he was suspecting the fidelity of his wife and probably the accused wanted to watch her activities. ( 6 ) ON the date of incident i. e. , 25-11-1995 the accused and the members of his family were sleeping, but the accused could not get sleep. He woke up at about 4. 00 a. m. and he has also woken up his wife, PW1 and assaulted her with an iron pipe causing injuries to her. On getting the hit on the head, she started shouting and crying. On hearing her shouts, the neighbours appeared at the scene of offence. PW1 was removed to the Hospital for treatment. She was informed regarding the death of her two children. ( 7 ) IT appears from the record that when PW1 was admitted to the Hospital, hospital people sent intimation to PW11 sub-Inspector of Police, Chirala I Town police Station on 25-11-1995 at about ( 8 ) 00 a. m. On receipt of intimation, Ex. P23 from the Government Hospital, PW11 proceeded to the Hospital and recorded the statement of PW1 which is treated as fir, Ex. P1. On the strength of Ex. Pl the offence came to be registered against the accused in Crime No. 210 of 1995 under section 307 IPC and on the death of both the children, Section 302 IPC was added. PW11 gave information regarding the offence to all the concerned. 8. PW12 Circle Inspector of Police, on receipt of copy of FIR at about 9. 45 p. m. , took up investigation and visited the government Hospital, Chirala, where he found PW1 and deceased No. 2 undergoing treatment. PW11 gave information regarding the offence to all the concerned. 8. PW12 Circle Inspector of Police, on receipt of copy of FIR at about 9. 45 p. m. , took up investigation and visited the government Hospital, Chirala, where he found PW1 and deceased No. 2 undergoing treatment. He once again recorded the statement of PW1 in the Government hospital and proceeded to the scene of offence, where PWs. 2 and 3 handed over the accused to him. PW 7 happened to be a municipal Councillor. He also rushed to the scene of offence. Meanwhile the second child also died. Therefore, PW12 conducted inquest over the dead body of the deceased in the presence of PW7. The inquest report in respect of Dl is produced on record as Ex. P16 and the inquest report in respect of D2 is produced on record as ex. P18. After inquest panchanama was over, both the dead bodies were sent for conducting autopsy. PW10 Civil Assistant surgeon, Area Hospital, Chirala conducted post mortem examination on the dead body of Dl and issued post-mortem certificate, ex P21. Then PW8 conducted post-mortem examination on the dead body of D2 issued post-mortem certificate, Ex. P19. PW10 had also examined PW1 and issued Ex. P22 wound certificate. The accused was arrested and it is stated that when the accused was in policy custody, he expressed his willingness to discover certain articles. The statement of the accused was recorded and he discovered certain articles. The statement of the accused in placed on record as Ex. P27. Thus on completion of investigation, charge sheet was filed. ( 9 ) IN order to prove the fact that D1 and D2 died homicidal death, prosecution relied upon the evidence of PW12 and PW7. PW12 happened to be Circle Inspector of police who had conducted inquest over the dead body of D1 and D2 in the presence of pw7. The inquest report in respect of D2 is produced on record as Ex. P18 and in respect of Dl at Ex. P16. PW8 conducted autopsy over the dead body of D2 and noticed the following external injuries on the person of D2. "1. A reddish oblique lacerated injury on the fore head right side of size 1. 25 cm x. 75 cm x. 5 cm. Cut section ache moses present. 2. P18 and in respect of Dl at Ex. P16. PW8 conducted autopsy over the dead body of D2 and noticed the following external injuries on the person of D2. "1. A reddish oblique lacerated injury on the fore head right side of size 1. 25 cm x. 75 cm x. 5 cm. Cut section ache moses present. 2. Abraded contusion on the right back of chest of size 1 x. 75 cm x. 25 cm. Cut section ache moses present. 3. Diffused swelling over the back over right side of the heart on axpeto parietal region of size 10. 75 cm x 5. 25 cm. Cut section deep haematoma present. 4. Contusion on the right thigh of size 3. 25 cm x 2. 5 cm reddish in colour. 5. Abraded contusion over the right posterior aspect of the right elbow joint of size 2. 75 x 1. 25 cm. "the Doctor opined that the injuries caused to D2 were within 12 hours prior to the postmortem examination and all injuries noticed by her are ante-mortem and were sufficient in the ordinary course of nature to cause the death. She issued Ex. P19 post mortem certificate. ( 10 ) THE post-mortem examination on Dl was also conducted by PW10 and she noticed the following external injuries on the person of D1. "1. Lacerated injury 3 cm x 1 cm x bone depth over the left frontal area. 2. Lacerated injury 3 cm x 1 cm x skin depth over the occipital area. 3. Laceration involving both lips of 1. 5 cm. length at the left angle of left mouth. 4. Lacerated injury 1 cm x. 5 cm up to bone over the medial of angle of left eye. 5. Incised wound 1 cm x. 5 cm x auricle depth over the middle of left auricle. 6. Lacerated injury 1. 5 cm x 5 cm x skin depth over the middle of front of neck. 7. Lacerated injury 5 cm x 2 cm x skin depth over the right inguinal area. 8. Abrasion 2 cm x 1 cm over the back of right fore arm. Ex. P21 is the post mortem certificate. ( 11 ) CONSIDERING the entire evidence on the point of homicidal death, we hold that dl and D2 did die homicidal death. 7. Lacerated injury 5 cm x 2 cm x skin depth over the right inguinal area. 8. Abrasion 2 cm x 1 cm over the back of right fore arm. Ex. P21 is the post mortem certificate. ( 11 ) CONSIDERING the entire evidence on the point of homicidal death, we hold that dl and D2 did die homicidal death. ( 12 ) NOW the point arises for consideration as to whether the prosecution was able to connect the accused with the crime by leading other set of evidence. The prosecution relied upon the evidence of PWs. 1 to 12 and produced certain documents. They were marked as Exs. P1 to p30. Out of 12 witnesses, PWs. 1 to 6 claimed to be eye-witnesses to the incident. Unfortunately, PWs. 2 to 6 did not support prosecution in any manner. In their evidence all the eye-witnesses stated that on hearing the shouts and commotion of PW1, they rushed to the hut of the accused. Some of the witnesses have stated that they have seen PW1 with injuries and D1 and D2 with bleeding injuries and they did not speak about the presence of the accused at the scene of offence, whereas the two eyewitnesses i. e. , PWs. 5 and 6 speak about the presence of the accused at the scene of offence when PW 1 was lying on the ground with bleeding injuries, but no overt act is attributed by these witnesses to the accused. ( 13 ) WHILE commenting upon the evidence of PWs. 2 to 6, the learned defence counsel Mr. S. Kuljeet Singh submitted at the Bar that the evidence of PWs. 2 to 6 has to be discarded in toto as they have not supported the prosecution; whereas the learned Public Prosecutor rebutting the argument of the learned Counsel for the defence submitted at the Bar that is well established proposition of law that even if the witnesses are declared hostile and permission accorded to the Prosecutor to put questions in the nature of cross examination to such witnesses, their evidence cannot be brushed aside in toto. The evidence which favours prosecution has to be accepted. ( 14 ) WE have no hesitation in accepting the legal proposition made by the learned public Prosecutor. The evidence which favours prosecution has to be accepted. ( 14 ) WE have no hesitation in accepting the legal proposition made by the learned public Prosecutor. But in the present case as we have already stated that only the presence of accused was established through the mouth of PWs. 5 and 6, whereas pws. 2 to 4 did not speak about the presence of the accused at the scene of offence. Thus, we have two versions on record i. e. , the version of PWs. 2 to 4 who did not speak about the presence of the accused at the scene of offence, whereas pws. 5 and 6 speak about the presence of the accused at the scene of offence. With these two contradictory versions on record, we have to see which version has to be accepted. It is also well settled law that if there are two contradictory versions, then any version which is favourable to the accused has to be accepted. Therefore, relying upon such legal proposition, we hold that the prosecution did not establish the presence of the accused at the scene of offence through the evidence of PWs. 2 to 6. ( 15 ) NOW we have to scrutinise the evidence of PW1 who happened to be an eye-witness to the incident. PW1 stated that on the date of incident i. e. , on 25-11-1995 in early hours she was woken up by her husband and gave a hit on her person with an iron pipe and when she shouted, neighbours rushed at the scene of offence and she was removed to the Hospital. Therefore, the evidence of PW1 also did not establish that the accused was responsible for causing the death of Dl and D2. But the evidence of PW1 clearly establishes that the accused had made a murderous attack on her with an intention to kill her, but unfortunately PW1 survived. This is all the evidence, which was brought on record by the prosecution. ( 16 ) CONSIDERING the entire evidence, as discussed above, we are of the considered view that the conviction recorded against the accused-appellant of the offence punishable under Section 307 IPC can be sustained and it is hereby sustained; whereas the conviction recorded against the accused- appellant of the offence punishable under section 302 IPC on two counts is hereby set aside. ( 17 ) THE criminal appeal is allowed to the extent indicated above.