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2001 DIGILAW 566 (AP)

MACHILIPATNAM v. ARJA NARASIMHA RAO

2001-06-11

B.PRAKASH RAO, R.M.BAPAT

body2001
RAMESH MADHAV BAPAT, J. ( 1 ) CRIMINAL Appeal No. 610 of 2001 is filed by the accused in Sessions Case No. 438 of 2000 against the order of conviction and sentence recorded by the I Additional sessions Judge, Machilipatnam, of the offence punishable under Section 302 of the Indian Penal Code. The learned sessions Judge sentenced the appellant- accused to death. The reference in referred trial No. 3 of 2001 is made by the learned sessions Judge for confirmation of the death sentence recorded by him against the accused. ( 2 ) THE substance of the charge against the accused was that on 12-8-2000 at about 8-30 a. m. , he caused the death of his wife named Arja Leela by hacking her with a knife on her head and other parts of her body. ( 3 ) THE prosecution story can be briefly narrated as follows : Marriage between the accused and the deceased took place about 20 years prior to the incident. They lived at Pedayadara village. Out of their wedlock, three daughters and two sons were born to them. ( 4 ) PW1 happened to be the mother of the deceased. PW8 is one of the married daughters of the accused and the deceased. Marriage of PW8 was performed by the accused about five years prior to the incident. At the time of the marriage of his two daughters, the accused promised to give 10 cents of land to each of them by way of pasupu Kumkuma . The accused did not fulfil his promise. Therefore, PW8 used to complain against the same. The wife of the accused also used to pester him to deliver the land to their two daughters as promised. In that connection there used to be quarrels between them. ( 5 ) IT is the further case of the prosecution that on the ground there was a quarrel between the accused and the deceased on 21-7-2000. The accused caused injury to the deceased. She was admitted in the Government Hospital, Machilipatnam. In that connection the accused was arrested. He was subsequently released on bail. ( 6 ) WHEN the deceased was taking treatment in the hospital, PW1, who happened to be the mother of the deceased, was attending her. The accused caused injury to the deceased. She was admitted in the Government Hospital, Machilipatnam. In that connection the accused was arrested. He was subsequently released on bail. ( 6 ) WHEN the deceased was taking treatment in the hospital, PW1, who happened to be the mother of the deceased, was attending her. On 12-8-2000 at about 8-30 a. m. , when PW1 was returning from bathroom, she noticed that the accused was hacking the deceased on her head while she was on bed. PWs. 2 and 3 were patients in the same ward. PW4 was staff nurse. She also witnessed the incident. PW5 was a ward boy in the hospital. On hearing the cries, he went to the female ward and saw the accused coming out of the ward with a knife in his hand. He along with another person caught hold of him and handed over him to PW6, who happened to be the constable attached to the outpost of the hospital. ( 7 ) ON 12-8-2000, PW11, the Assistant Sub-Inspector of Police, on receiving information, proceeded to the hospital. He recorded the statement of PW1. On the strength of her statement, he registered the case in Crime No. 133 of 2000. Ex. Pl is the said statement. Further investigation was handled by PW12, who happened to be the circle Inspector of Police. He proceeded to the scene of offence and prepared the observation report, Ex. P4. He drew the rough sketch of the scene of offence in the presence of PW 10. Thereafter he conducted inquest over the dead body of the deceased in the presence of PW10. Ex. PS is the inquest report. Later the dead body was sent for post-mortem examination. Post-mortem examination was conducted by pw9 who happened to be the Civil assistant Surgeon, Government Hospital, machilipatnam. Ex. P2 is the post-mortem certificate issued by him. According to him, the cause of death was due to multiple injuries. ( 8 ) AFTER completion of investigation, PW13 filed charge-sheet. The defence of the accused is of total denial. ( 9 ) IN order to connect the accused with the crime, the prosecution led the evidence of PWs. 1 to 13. The documents produced by it were marked as Exs. Pl to p13. ( 8 ) AFTER completion of investigation, PW13 filed charge-sheet. The defence of the accused is of total denial. ( 9 ) IN order to connect the accused with the crime, the prosecution led the evidence of PWs. 1 to 13. The documents produced by it were marked as Exs. Pl to p13. ( 10 ) IN order to establish the fact that the deceased died a homicidal death, the prosecution relied upon the evidence of pw12 who happened to be the Circle inspector cf Police. He conducted inquest over the dead body of the deceased. PW10 acted as panch witness when the inquest was conducted. Ex. P5 is the inquest report. ( 11 ) AS stated earlier, after the inquest was over, PW12, sent the dead body to pw9 who happened to be working as the civil Assistant Surgeon, Government hospital, Machilipatnam. On receipt of the requisition, he conducted autopsy over the dead body of the deceased and noticed the following external injuries :"1. Incised wound of 1/2" x 1/2" on lower l/3rd of left thigh. 2. Abrasion 1/4" x 1/4" below the right knee joint. 3. 5" x 1/2" chapped wound on the left side of the frontal region with fracture of left parietal bone exposing brain matter. 4. 3" x 1/2" chapped wound on the left parietal region exposing the brain matter. 5. Chapped wound of 2" x 2" with chip of parietal bone coming out of the skull exposing the brain matter. 6. Chapped wound of 3" x 1/2" on front parietal region right s exposing the brain matter. 7. Chapped would of 1" x 1/2" abc the right eyebrow. 8. Bleeding right ear present. 9. POP slab on the right forearm a upper arm. " ( 12 ) ON internal examination, the Doct noticed the following internal injuries. "heart: chambers are empty. Lungs: plae on cut section. Lever and spleen: pale on cut section. Kidneys: congested in cut section. Bladder: empty. Uterus: Normal. Hyoid bone: intact. Stomach: Milk contains. " ( 13 ) ACCORDING to the Doctor, the deceased died due to shock and heamorrhage due to multiple injuries to head and brain, he further opined that the deceased mighl have died within 6 to 12 hours prior to the post-mortem examination. According to his observation, he issued the post-mortem certificate Ex. P2. Hyoid bone: intact. Stomach: Milk contains. " ( 13 ) ACCORDING to the Doctor, the deceased died due to shock and heamorrhage due to multiple injuries to head and brain, he further opined that the deceased mighl have died within 6 to 12 hours prior to the post-mortem examination. According to his observation, he issued the post-mortem certificate Ex. P2. He further opined that the injuries noticed on the person of the deceased could be caused with a weapon like MOI. He produced Ex. P3-case sheet along with the post-mortem certificate. Ex. P3 relates to the treatment, which the deceased was undergoing prior to her death. ( 14 ) CONSIDERING the evidence led by the prosecution on the point of homicidal death, we have no hesitation in holding that the deceased did die a homicidal death. ( 15 ) IN order to connect the accused with the crime, the prosecution mainly relied upon the evidence of PW1 who happened to be the mother of the deceased. She was attending her daughter, who was admitted in the hospital, because of the previous incident in which the deceased was injured at the hands of the accused. ( 16 ) THE evidence of PW1 shows that on the date of incident she went to bathroom. When she was returning, she saw the accused hacking the deceased and the deceased was lying on bed. She then raised cries. As far as the identity of the accused is concerned, there cannot be any doubt that PW1 was able to identify the accused, as she happened to be his mother- in-law. ( 17 ) WE have the evidence of three more witnesses, PWs. 2 to 4. Out of them, pws. 2 and 3 were patients who were undergoing treatment in the same ward where the deceased was hacked by the accused. According to the evidence of PW2, he saw the accused hacking the deceased whereas PW3 stated that he did not see the accused hacking the deceased, but he saw the accused running away with a knife in his hand. PW4 happened to be the staff nurse. She saw the accused hacking the deceased and running away from the female ward. ( 18 ) WHILE commenting upon the evidence of PWs. 2 to 4, learned senior counsel Mr. PW4 happened to be the staff nurse. She saw the accused hacking the deceased and running away from the female ward. ( 18 ) WHILE commenting upon the evidence of PWs. 2 to 4, learned senior counsel Mr. Padmanabha Reddy appearing on behalf of the appellant-accused submitted at the Bar that as far as the identification of the accused by PWs. 2 to 4 is concerned, it cannot be believed for the reason that no test identification parade was held and it is for the first time while giving evidence in the Court, PWs. 2 to 4 identified the accused. ( 19 ) WE are not in agreement with the submission made by the learned senior counsel. It is true that there was no test identification parade. But the incident of hacking in the hospital or murder in the hospital is a rare incident. Moreover, PW4 happened to be the staff nurse. She was moving from ward to ward. The accused was caught hold of by PW5 and another. She had a lot of opportunity to observe the accused. Therefore, we hold that though no identification parade was held during investigation, the evidence of PWs. 2 to 4 cannot be discarded. ( 20 ) PW5 happened to be the ward boy. He saw the accused running away with a knife in his hand. He caught hold of him and handed over to PW6 who happened to be the Constable attached to the outpost of the hospital. Therefore, his identification of the accused is also relevant. ( 21 ) WHILE commenting upon the medical evidence, learned senior Counsel submitted that admittedly the deceased was admitted in the hospital because of the incident which took place on 21-7-2000 wherein the deceased was injured by the accused and it is not known whether the injuries described in the post-mortem examination were caused earlier or at the time of the incident in question. ( 22 ) WE are not in agreement with the submission made by the learned senior counsel. The case sheet Ex. P3 is produced on record. It shows that the deceased had only external injuries and were no internal fractures. Had there been any fractures, the same would have been mentioned in the case sheet. Therefore, it must be inferred that on the day of incident the accused caused incised and chapped injuries because of which the deceased died. P3 is produced on record. It shows that the deceased had only external injuries and were no internal fractures. Had there been any fractures, the same would have been mentioned in the case sheet. Therefore, it must be inferred that on the day of incident the accused caused incised and chapped injuries because of which the deceased died. ( 23 ) CONSIDERING the evidence as led by the prosecution, we have no hesitation in holding that the accused was responsible for causing the death of the deceased. ( 24 ) LEARNED senior Counsel submitted at the Bar that the present case is not the rarest of rare cases as pointed out by the apex Court. He pointed out a ruling of the Supreme Court in Shankar v. State of tamil Nadu, 1994 SCC (Crl.) 1252, wherein it is observed as under: "the choice as to which of the two punishments provided for murder is the proper one in a given case will depend upon the particular circumstances of that case and the Court has to exercise its discretion judicially and on well- recognised principles after balancing all the mitigating and aggravating circumstances of the crime. The Court also should see whether there is something uncommon about the crime which renders sentence of imprisonment of life inadequate and calls for death sentence. The nature of the crime arid the circumstances of the offender should be so revealing that the criminal is a menace to the society and the sentence of imprisonment of life would be inadequate. The sentence of death should be reserved for the rarest of rare cases after a due consideration of both mitigating and aggravating circumstances. What circumstances bring a particular case under the category of rarest of rare cases vary from case to case depending upon the nature of the crime, weapons used and the manner in which it is perpetrated etc. " the learned senior Counsel also pointed out a ruling of the Apex Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898 , wherein the Supreme Court has held that the following mitigating circumstances are undoubtedly relevant circumstances and must be given weightage in determination of sentence. "1. XX XX XXX 2. The age of the accused. If the accused is young or old, he shall not be sentenced to death. 3. "1. XX XX XXX 2. The age of the accused. If the accused is young or old, he shall not be sentenced to death. 3. The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. 4. The probability that the accused can be reformed and rehabilitated. 5. That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. 6. That the accused acted under the duress of domination of another person. 7. That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. "the learned Public Prosecutor pointed a ruling in Ramdeo Chauhan v. State of Assam, (2000) 7 SCC 455 , in which the Apex court has observed that the commission of a crime in a brutal manner or on a helpless child or a woman or the like are the circumstances which justify the imposition of maximum penalty. ( 25 ) CONSIDERING the ratio laid down in all the three above cases, we hold that the present case is not the one which can be called as the rarest of rare cases. Therefore, the adequate punishment would be imprisonment for life. ( 26 ) THUS, the Referred Trial No. 3 of 2001 made by the I Additional Sessions judge, Krishna at Machilipatnam, is rejected, whereas the Crl. ANo. 610,of 2001 filed by the accused is allowed in part to the extent indicated above.