Research › Search › Judgment

Andhra High Court · body

2001 DIGILAW 216 (AP)

Khader Basha v. State Of A. P.

2001-03-02

R.M.BAPAT, T.CH.SURYA RAO

body2001
JUDGMENT R.M. Bapat, J. - Originally A-1 to A-3 were charge-sheeted, prosecuted and tried by the II Additional District and Sessions Judge, Cuddapah in Sessions Case No. 359 of 1996 for an offence punishable under Section 302 IPC read with Sections 34, 109 and 201 IPC. On evidence the learned Judge found that the prosecution could not establish the charges against A-2 and A-3 and, therefore they were acquitted. The learned Judge found A-1, the appellant herein, guilty of the offence punishable under Section 302 IPC and convicted him for the said offence and sentenced him to undergo imprisonment for life and also to pay a fine of Rs. 500/- in default to suffer simple imprisonment for a period of two months. Aggrieved by the aforesaid order of conviction and sentence the accused appellant has filed the present appeal. 2. The prosecution, story can be narrated as follows: 3. The deceased was the wife of the A-1 and A-2 and A-3 are the mother and step-mother of A-1 respectively. The deceased was married to A-1, 15 months prior to occurrence. At the time of marriage, her parents gave 5 tolas of gold jewels and Rs. 10,000/- cash as dowry. Both the deceased and A-1 to A3 were farmers. It is further the case of the prosecution that the accused and the deceased lived together for some time and subsequently, A-1 pledged the gold jewels with his maternal uncle and spent that amount for his personal expenses. The accused started harassing the deceased to get additional amount from one Papa Saheb, who is the father of the deceased. The deceased went to her fathers house and asked for Rs. 20,000 to release the gold ornaments which were pledged by her husband. But, the father of the deceased i.e., P.W. 7 expressed his inability to give that amount. Thus, the, accused continued to harass the deceased to bring gold jewellery and money. It is further stated that on 18-12-1995 at about 4.00 p.m. in the evening, all the accused with a common intention to kill the deceased, picked up quarrel with her in their house in the village. A-1 is alleged to have hacked the deceased on the left side of the neck with a bill hook. With the result, the deceased came out of the house and raised cries and fell down in the verandah near water tap. A-1 is alleged to have hacked the deceased on the left side of the neck with a bill hook. With the result, the deceased came out of the house and raised cries and fell down in the verandah near water tap. Then A-1 came out from the house holding blood stained bill hook through the verandah and A-2 and A-3 also came out from the house P.Ws. 4 and 5 (these witnesses did not support the case of the prosecution while giving evidence) saw the occurrence and proceeded to the deceased where the deceased told them that she was hacked by A-1 with a bill hook. The deceased died with bleeding injuries. 4. It is further stated by the prosecution that P.W. 1 Mr. P. Venkatesam Raju, V.A.O. gave information regarding the offence in question to the Mandal Revenue Officer, who filed a complaint Ex. P-1 and an offence was registered as Cr. No. 128/95 on the file of the Pendlimarry Police Station. The Investigating Officer visited the scene of offence and recorded the statements of various persons and sent the dead body for conducting the autopsy. The doctor opined that the deceased died due to haemorrhage, shock and tramautic shock caused by sharp injury by sharp instrument. He further opined that the deceased died within 46 to 50 hours prior to the commencement of his post mortem examination. On completion of investigation the charge-sheet was laid. 5. The defence of the accused is of total denial. Moreover, the accused has examined D.Ws. 1 and 2 as defence witnesses so as to prove his alibi. 6. To prove that the deceased died homicidal death, the prosecution wants to rely upon the evidence of P.W. 12, the Investigating Officer. The inquest report is produced on record as EX.P-6. After the inquest was over, the dead body was sent to P.W. 15 for conducting the post-mortem examination over the dead body of the deceased. P.W. 15 happened to be working as Civil Assistant Surgeon Government Hospital Cuddapah. On receipt of requisition he conducted autopsy over the dead body of the deceased and noticed the following external injuries: Elliptical sharp injury on the left side of neck starting from occipital area to the front of the left side of the neck 12 x 6 cm. sharp of cut posterior neck muscles and external jugular veins cut, left sterno mastoid muscle cut sharply. sharp of cut posterior neck muscles and external jugular veins cut, left sterno mastoid muscle cut sharply. Vertibra C4 cut sharply, spine cut sharply, spinal cord cut half. 7. On internal examination, the following injuries were noticed: Head: Right frontal right parietal area contused haemotoma present. No fracture of skull bones present, right frontal lobe petichia present, brain mass partially liquefied. Neck: Hyoid & thyroid bone normal. Mucosa is pale anterior jugalar veins and external jugular veins on left side cut sharply carotid vessels are intact. Muscless are cut sharply, C4 vertibra cut sharply, spinal cord is also cut sharply. Chest: No rib fractures, no haemothorax on both sides. 8. The doctor opined that the deceased died due to haemorrhage, shock and traumatic shock caused by the sharp injury caused by a sharp object and a blunt injury on the right side of the head and that the injuries notices on the person of the deceased were sufficient in the ordinary course of nature to cause the death of a person. He further opined that the injuries noticed on the person of the deceased could be caused with a weapon like Mathukathi. Ex. P-9 is the postmortem report. 9. Considering the entire evidence we have no hesitation in holding that the prosecution did prove that the deceased died a homicidal death. In order to establish the fact that the accused is responsible for causing the death of the deceased the prosecution lead the evidence of P.Ws. 1 to 17. P.W. 1 happened to be the Village Administrative Officer on whose complaint the Police force was sent in motion. P.W. 2 is the Mandal Revenue Officer, to whom P.W. 1 had informed about the death of the deceased. P.W. 3 is Varalakshmi, the child witness, who is alleged to have seen the accused hacking the deceased. P.Ws. 4 and 5 did not support the case of the prosecution. P.W. 6 is the neighbour of the deceased and he had spoken about the strained relations between the accused and the deceased. P.W. 7 is the father of the deceased who has stated as to how the marriage between the parties took place and the amount of dowry which was given by him to the accused at the time of marriage. He further spoke about the harassment of the deceased by the accused. P.W. 7 is the father of the deceased who has stated as to how the marriage between the parties took place and the amount of dowry which was given by him to the accused at the time of marriage. He further spoke about the harassment of the deceased by the accused. P.W.8 is the maternal unc1e of the deceased who had not much role to play in this case. P.W. 9 is the cousin brother of the deceased and he speaks about the harassment meted out to the deceased by the accused. P.Ws. 10 and 11 did not support the prosecution case. P.W. 12 acted as a panch witness when the inquest was conducted. P.Ws. 13 and 14 also did not support the prosecution case. P.W. 15 is the doctor who conducted autopsy over the dead body of the deceased. 10. Considering the entire evidence led in by the prosecution we can definitely say that we have the evidence of only a child witness P.W. 3 who spoke about the hacking of the deceased and who spoke about the involvement of A-1 in this case. This child witness was aged about 8 years at the time of the incident and about 11 years of age at the time of giving evidence. The child witness stated that on the day of the incident, when the deceased came from outside, her house was locked, therefore, she was sitting outside the house. After some time, A-1 came from the village and opened the door and then the accused and the deceased went inside the house. Then A-1 dealt a blow with a matchukathi on the left side of the neck of the deceased. The deceased Hussain Bee came out of the house and fell near the tap. This is all the evidence given by P.W. 3. P.W. 3 was studying in third standard at the time of giving evidence and she was studying in first standard when the occurrence took place. She was cross examined at length. Though the cross examination is not happy. But, the omission which was done by her was brought on record through the evidence of P.W. 17. As a matter of fact, when the statement of P.W. 3 was recorded under Section 161 Cr. P.C. she did not tell the Investigating Officer that she had seen the accused hacking the deceased on the left side of the neck. But, the omission which was done by her was brought on record through the evidence of P.W. 17. As a matter of fact, when the statement of P.W. 3 was recorded under Section 161 Cr. P.C. she did not tell the Investigating Officer that she had seen the accused hacking the deceased on the left side of the neck. This is a vital omission on the part of the child witness. Therefore, it is very difficult for us to believe that she was an eye witness to the incident. Therefore, though P.W. 3 supported the prosecution case, we are not inclined to believe her evidence. If the evidence of P.W. 3 is eschewed from the prosecution story, nothing remains in the case. As stated earlier, the accused lead the evidence of D.Ws. 1 and 2 to establish alibi. According to their evidence, the accused, at the relevant time, was working in his own field. He was not there in the village. The evidence of D.Ws. 1 and 2 is not reliable at all. There is no suggestion to the other witnesses when they were cross-examined by the defence. It appears that D.Ws. 1 and 2 were secured at the end of the trial as a last straw in the ocean. Then the defence is totally to be discarded. When there is no positive evidence that A-1 was responsible for causing the death of the deceased, we have no hesitation in holding that the learned Judge was not justified in convicting the appellant herein for an offence under Section 302 IPC. Therefore, the benefit of doubt is given to the accused by allowing the present appeal. Accordingly the order of conviction and sentence passed by the learned II Addl. Sessions Judge, Cuddapah in S.C. No. 359 of 1996 is set aside and the accused appellant herein is acquitted of the charges levelled against him and he is directed to be set at liberty forthwith if he is not required in any other case. Appeal allowed.