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2003 DIGILAW 1284 (AP)

Nagulapalli Satyanarayana v. State Of A. P.

2003-10-17

BILAL NAZKI, K.C.BHANU

body2003
K. C. BHANU, J. ( 1 ) A-L and A-2 in Sessions Case No. 190 of 1997 on the file of the I Additional Sessions judge, Rajahmundry are appellants in crl. Appeal Nos. 1681 of 2000 and 167 of 2001 respectively. The learned Sessions Judge found A-l and A-2 guilty of offence under section 302 read with Section 34 IPC. They were sentenced to undergo imprisonment for life and to pay a fine of Rs. 200. 00 each, in default to undergo simple imprisonment for one week. A-3 was found not guilty of the charge under Section 302 IPC read with section 34 IPC and accordingly he was acquitted. Against the acquittal of A-3 the state has filed Crl. Appeal No. 548 of 2001. ( 2 ) AS all these three appeals are directed against the same judgment, they are being disposed of by this common judgment. ( 3 ) THE brief facts that are necessary for the disposal of these appeals may be delineated as follows. All the accused, deceased and other material witnesses are residents of lingampet, Rajahmundry. Every year the residents of Lingampet perform "pyditalli ammavari" festival at Lingampet. A day prior to the date of offence A-l and A-2 quarreled with the father of the deceased in a drunken state in connection with the place of performance of the festival. On 10-11-1996 on Diwali night at about 8. 30 when P. W. 1 was burning crackers on the road A-2 came there in a fully drunken state, caught hold of his shirt and questioned him as to why he was burning crackers at that place. Then p. W. 1 went into house. On the next day at about 5. 30 p. m. when the deceased and p. W. 2 were present at the mechanic shop of p. W. 2, P. W. 1 went there and informed them about the incident which took place on the previous night. At that time A-l to A-3 came there and abused them. A-2 and A-3 caught hold of the hands of the deceased and A-l stabbed the deceased on the left side of the stomach. The deceased collapsed on receipt of the said injury. Then the accused ran away from the scene of occurrence. P. Ws. 1 to 4 lifted the deceased into an auto and P. Ws. 3 and 4 took the deceased to Government hospital, Rajahmundry. The deceased collapsed on receipt of the said injury. Then the accused ran away from the scene of occurrence. P. Ws. 1 to 4 lifted the deceased into an auto and P. Ws. 3 and 4 took the deceased to Government hospital, Rajahmundry. The doctors declared him dead. Thereupon P. W. 1, who went to the hospital on his cycle by following the auto, went and informed about the death of the deceased to his parents and thereafter at about 8. 00 p. m. P. W. 9 recorded the statement from P. W. 1 and registered a case. After receipt of express copy of the First information Report, P. W. ICMook up investigation. He visited the scene of occurrence and posted guards at the scene of occurrence and the dead body in the hospital. While P. W. 10 was in the police station, A-l came with minor injuries. Therefore, A-l was sent to Government Hospital at headquarters. On 12-11-1996 P. W. 10 took- up further investigation and observed scene of occurrence and seized the blood stained clothes in the presence of mahazardars. He prepared a rough sketch of the scene of occurrence. He also got the scene of occurrence photographed through P. W. 5. Thereafter he proceeded to the Government hospital and conducted inquest on the dead- body in the presence of P. W. 8 and others. He examined the witnesses and recorded the statements. On the same date at about 12. 30 p. m. P. W. 6 conducted autopsy and opined that the deceased died due to shock and hemorrhage as a result of stab injury on the left side of the chest. On 13-11-1996 at 11. 00 a. m. P. W. 10 arrested A-2 and A-3. On 14-11-96 A-l was discharged from the hospital and he was arrested. In pursuance of the confessional statement made by A-l, m. O. 1 was recovered. The material objects were sent to Forensic Science Laboratory. After receipt of report and after completion of investigation P. W. 10 filed charge-sheet. ( 4 ) IN order to prove its case the prosecution examined ten witnesses and marked fourteen documents besides the case properties m. Os. 1 to 6. ( 5 ) THE plea of the accused is one of denial and they examined one witness and marked ex. B-1, X-l to X-3. ( 4 ) IN order to prove its case the prosecution examined ten witnesses and marked fourteen documents besides the case properties m. Os. 1 to 6. ( 5 ) THE plea of the accused is one of denial and they examined one witness and marked ex. B-1, X-l to X-3. The lower court after appreciating the evidence on record came to the conclusion that the prosecution proved its case beyond all its reasonable doubt for the charge leveled against A-l and A-2 but not against A-3. Accordingly A-l and A-2 were convicted and sentenced, and A-3 was acquitted, questioning the legality and correctness which the present appeals are filed as aforesaid. ( 6 ) P. W. 8 is one of the inquest mahazardars present at the time of P. W. 10 conducting inquest. The inquest mahazardars opined in ex. P-8 that the deceased died due to the knife injury. The evidence of P. W. 10 would go to show that he conducted inquest on the dead-body from 8. 30 to 10. 30 a. m. The evidence on record remained unchallenged. P. W. 6 is the doctor who examined the dead- body of the deceased Subramanyam on 12-11-1996 at 12. 30 p. m. and found the following injuries: a semi circular curved shaped stab injury with clear edges and margins present on the left side of chest, mid-auxiliary line 5" distance from left nipple lateral side and downwards. Injury present over in between intercept muscles of 1 Oth and 11 th ribs of left side; injury 2" x 1" and superficial deep fascia cleanly incised with dermatomes. A probe is introduced upto 3" depth. On internal examination, he found the following injuries: 1" x 1" x 1" lacerated injury over plural surface of left lung. Diaphragm: 1" circular cut injury on left side and 2" length-wise tear over greater curvature at the gastro dorsal junction. 1" x 1/2" x 1" laceration of spleen is present. ( 7 ) HE opined that the deceased died as a result of shock and hemorrhage due to injury on the left side with sharp edged object prior to 18 to 24 hours to post-mortem examination. Nothing has been elicited to discredit the testimony of P. W. 6 and recitals of Ex. P-5. Therefore, the homicidal death of the deceased has been established beyond all reasonable doubt. Nothing has been elicited to discredit the testimony of P. W. 6 and recitals of Ex. P-5. Therefore, the homicidal death of the deceased has been established beyond all reasonable doubt. ( 8 ) COMING to the incident proper, P. Ws. 1 to 3 are eyewitnesses to the incident. P. W. 1 and P. W. 2 are friends of the deceased. P. W. 3 is an independent witness. The learned counsel contended that the incident did not happen in the manner and at the time as spoken to by P. Ws. 1 to 3, that the injuries on a-l were not explained, that prior to the incident in question a scuffle had-taken place between A-l and deceased, that A-l had no intention to cause death of the deceased and that fvirther having given benefit of doubt to a-3, the lower court ought to have extended the same benefit of doubt to A-2 also, and therefore, he prays to set aside the conviction and sentence recorded against A-l and A-2. ( 9 ) ON the other hand, the learned public prosecutor contended that it is in the evidence of P. W. 1 to P. W. 3 that while A-2 and A-3 caught hold of the deceased, A-l stabbed the deceased, that all the accused came to the scene of occurrence together and ran way from the scene of occurrence and in these circumstances, the common intention of A-2 and A-3 can be gathered, that the evidence of p. W. 1 to P. W. 3 is consistent with regard to the actual incident, but unfortunately the lower court acquitted A-3 withou t any reason, and therefore, she prays to set aside the order of the acquittal against A-3 and confirm the findings of the lower court against A-l and A-2. ( 10 ) P. WS. 1 and 2 are the friends of the deceased and as such they are interested witnesses. It is well settled that merely because the evidence of independent witnesses is available, the evidence of so ca lied interested wi tnesses cannot be rejected outright, if they are natural witnesses and if their evidence is truthful and credible and inspires confidence. All that is necessary is to scrutinize their evidence with more than ordinary care and circumspection. According to P. W. 1 on 10-11-1996 at about 8. All that is necessary is to scrutinize their evidence with more than ordinary care and circumspection. According to P. W. 1 on 10-11-1996 at about 8. 30 p. m. while he was burning crackers A-2 in a drunken state tore his shirt and then he went to his house. On the next day i. e. , 11-11-1996 at about 5. 30 p. m. while deceased and P. W. 2 were present in the shop of P. W. 2, P. W. 1 went there and was informing them about the incident that took-place on the previous night to them. It is at that time A-l to A-3 came there and uttered something and A-2 and A-3 caught hold of the hands of the deceased while A-l took out a knife from his waist and stabbed the deceased on his left side of the stomach. The deceased fell down and the accused ran away. The evidence of p. W. 2 is almost similar as testified by P. W. 1. P. W. 3 is a chance witness who was returning to his house from the market and when he reached the mechanic shop of P. W. 2, he noticed P. W. 1, P. W. 3 and the deceased, the incident took-place. He also testified that a-2 and A-3 caught hold of the deceased while A-l picked out a knife from the waist and stabbed the deceased on the stomach. Even if P. W. 3 may not have been ordinarily present at the time and place when the incident took-place, his evidence cannot be straight away rejected on the ground of he being a chance witness. The contention that the witness may not have been ordinarily present at the relevant time and place does not necessarily mean that he was not or could not be present at that particular time and place. At the most, his evidence requires to be closely scrutinized in order to find out whether he was in fact present at the relevant time and had witnessed the incident or not. It is suggested to him that he was related to the deceased, but the same is denied. While he was returning to his house from the market, he witnessed the incident. He also accompanied the injured to the hospital in the same auto. The name of this witness has been clearly mentioned in Ex. It is suggested to him that he was related to the deceased, but the same is denied. While he was returning to his house from the market, he witnessed the incident. He also accompanied the injured to the hospital in the same auto. The name of this witness has been clearly mentioned in Ex. P-1 as having witnessed the incident and taken the deceased to the hospital. This witness has no animus against the accused to implicate them falsely leaving the real assailants. The evidence of P. Ws. 1 to 3 is consistent with regard to A-l stabbing the deceased while a-2 and A-3 caught hold of him. The incident in question took-place at about 5. 30 p. m. on 11-11-1996. Within one and a half hours after the incident the earliest version of the incident has been clearly stated by P. W. 1. A perusal of Ex. P-1 shows that on 11-11-1996at about 5. 30 p. m. while first informant, P. W. 2 and the deceased were present at the shop of p. W. 2 all the accused came there, and A-2 took out the knife from his waist and stabbed on the left side of the ribs and thereafter the accused ran awav. Then P. Ws. 2 and 3 who were present at the time of incident took the injured in an auto to the Government hospital. As a matter of fact, P. W. 1 followed the auto of the deceased on cycle and after the doctors declared him as dead he went to the house of the deceased and informed his parents about the death of the deceased. This fact has been confirmed by the evidence of p. W. 4 who is the father of the deceased. According to P. W. 4 on 11-11-1996 at about 7-00 p. m. P. W. 1 came and informed him that his son Subramanyam died due to stabbing by A-l. After informing P. W. 4, P. W. 1 went to the police station and orally reported the incident to P. W. 9. P. W. 9 registered the same. It is suggested to him that A-l came to the police station at about 5. 30 p. m. and presented the report but the same is denied. The fact that P. W. 1 gave a report as in Ex. P-1 to p. W. 9 at 8. P. W. 9 registered the same. It is suggested to him that A-l came to the police station at about 5. 30 p. m. and presented the report but the same is denied. The fact that P. W. 1 gave a report as in Ex. P-1 to p. W. 9 at 8. 00 p. m. on 11-11-1996 is not specifically disputed. So also it is not suggested to P. W. 1 that he did not lodge ex. P-1 to the police. So the prompt lodging of fir and further recitals therein are completely in corroboration with the evidence of P. W. 1 in so far as A-l stabbing the deceased. Therefore, the recitals in Ex. P-1 can be used to corroborate the evidence of P. W. 1. ( 11 ) THE contention of the learned counsel for the appellant is that the incident did not happen in the manner as stated by the prosecution witnesses. Therefore, it is relevant to see the scene of occurrence P. W. 8 is one of the mediators who was present at the scene at the time of the observation of the same and occurrence on 12-11-1996. Ex. P-7 is the observation report. A perusal of Ex. P-7 shows that the scene of offence is situated in between Lakshmi Rice and Kerosene General stores and Sreenivasa Mechanic Shop. The police seized blood-stained and cement flooring and controlled cement pieces from the floor. They are marked as M. Os. 5 and 6. It is suggested to P. W. 8 that M. Os. 5 and 6 were not seized by the Inspector of Police, but the same is denied. He is the village administrative Officer, Rajahmundry Urban and he has no reason to speak false against the accused. P. W. 10 has also specifically stated that he seized M. Os. 5 and 6 at the scene of occurrence. According to P. W. 14 human blood was detected. P. W. 5 is the photographer who took the photographs of the scene of offence and also the dead -body. His evidence remains unchallenged. From the evidence on record, it is clear that the incident in question took-place in front of the shop of P. W. 2. According to P. W. 14 human blood was detected. P. W. 5 is the photographer who took the photographs of the scene of offence and also the dead -body. His evidence remains unchallenged. From the evidence on record, it is clear that the incident in question took-place in front of the shop of P. W. 2. ( 12 ) THE presence of P. W. 2 at the relevant point of time is established beyond all reasonable doubt, because he was running a mechanic shop under the name and style of lakshmi Sreeni vasa Scooter Center between first and second streets of Lingampet. As per ex. P-12 the scene of occurrence is in front of his shop. Therefore, P. W. 2 is a natural witness to be present at the time of incident. As the deceased was found at the shop of P. W. 2, p. W. 1 who is the friend of the deceased went there and was informing about the attack made by A-2 on the previous night. It is at that time, the incident took place. If really p. W. 1 had not witnessed the incident, he would not have stated the details of occu rrence in the earliest opportunity in Ex. P-1. ( 13 ) THE other contention of the learned counsel for the accused is that A-l sustained injuries and the same have been explained by the prosecution. D. W. 1 is the doctor who examined the accused No. 1 on 11-11-1996 at 11. 00 p. m. and found the following injuries: (1) Tenderness and pain gver the abdomen. (2) Contusion 4x1 c. m. size, qn the left shoulder. (3) Contusion on the left arm 4 x 1 on the left arm. (4) Laceration 1 /2 x 172 cms. skin deep over the left zygomatic region. (5) Abrasion 1/2 x 1/2 cms, over the scapula. ( 14 ) HE opined that all the injuries were simple in nature. According to D. W. 1, A-l told him that he had sustained injuries at 4-00 p. m. on 11-11-1996. All the injuries in ex. X-2-Accident Register are simple and superficial in nature. Except injury No. 5, the other injuries are possible by self-infliction. As injuries were found on the accused, it was obligatory on the part of the prosecution to explain the injuries so as to satisfy the court as to the circumstances under which the occurrence originated. All the injuries in ex. X-2-Accident Register are simple and superficial in nature. Except injury No. 5, the other injuries are possible by self-infliction. As injuries were found on the accused, it was obligatory on the part of the prosecution to explain the injuries so as to satisfy the court as to the circumstances under which the occurrence originated. Before that, however, two conditions must be satisfied. (1) That the injuries on the person of the accused must be shown to be very serious and not superficial and (2) that the injuries must be shown to have been caused at the time of occurrence. This has been held so by the Apex Court in a decision reported injagadeesh v. State of Bihar. P. Ws. 1 to 3 in this case did not explain the injuries sustained by the accused. There is no evidence to show that the injury sustained by him was in the course of the same transaction i. e. , at about 5. 30 p. m. on 11-11-1996. It is the case of A-l that the prosecution witnesses are the first aggressors as they beat him first and thereafter he went to the police station and lodged report and he did not know how the deceased sustained injuries. Even according to D. W. 1, A-l told him that he had sustained injuries at 4. 00 p. m. on 11-11-1996, but according to the consistent version of the prosecution the presentincidenttook-placeatabout5. 30p. m. Therefore, it can not be said that A-l sustained injuries in the same transaction. Hence the prosecution need not explain with regard to the sustaining of injuries by A-l. ( 15 ) P. WS. 1 to 3 has unfolded the prosecution case on all material particulars. Though they were cross-examined at length, they stood the test of touchstone of probabilities in their evidence. They have no reason to depose falsely. There is no divergence on any material particulars relating to the occurrence. ( 16 ) NOW the next contention is whether a-2 and A-3 shared the common intention to kill the deceased. In order to invoke the provisions of Section 34 of the IPC, the prosecution has to establish common intention of all the accused persons and the manner in which the murder was committed and then alone each of such persons would be liable for the offence of murder. In order to invoke the provisions of Section 34 of the IPC, the prosecution has to establish common intention of all the accused persons and the manner in which the murder was committed and then alone each of such persons would be liable for the offence of murder. The common intention requires a prior concert or pre-planning. Such common intention should be anterior in point of time to the commission of crime, but it can also develop at the incident when said crime was committed. Though it is difficult to procure direct evidence of such intention but it can be inferred from the proved circumstances. In a decision reported in Shankaralal Kachara bhai v. State of Gujarat the Apex Court held:"the criminal act mentioned in Sec. 34 of the IPC is the result of the concerted action of more than one person. If the said result was reached in furtherance of the common intention, each person is liable for the result as if he had done it himself. " ( 17 ) THE learned Public Prosecutor reported a decision between Rajesh Govind jageslw v. State of Maharashtra, wherein it was held that:"no direct evidence of common intention is necessary. For the purposes of common intention even the participation in the commission of the offence need. not be proved in all cases. The common intention can develop even during the course of an occurrence. " ( 18 ) SHE also relied upon-another decision between Rainashislnt Yadav v. State of Bihar wherein it was held:"the distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. " ( 19 ) IT is in the evidence of P. Ws. 1 to 3 that all the accused came together and A-2 to A-3 caught-hold the deceased and A-l stabbed the deceased and all the accused ran away. There was no evidence that A-2 and A-3 shared the common intention with A-l to kill the deceased. Except coming together and going together, there was absolutely no evidence to show that A-2 and A-3 shared the common intention. According to P. Ws. 1 to 3, A-2 and A-3 caught hold of the deceased at the time of A-l stabbing the deceased. Except coming together and going together, there was absolutely no evidence to show that A-2 and A-3 shared the common intention. According to P. Ws. 1 to 3, A-2 and A-3 caught hold of the deceased at the time of A-l stabbing the deceased. ( 20 ) THE quarrel that took-place between a-l and A-2 on one hand and the deceased on the other with regard to the place of performance of "pydithalli Ammavaru festival" was three years prior to the date of the death of the deceased. Therefore, that cannot be taken as motive for the accused to commit the murder of the deceased. At the time of incident, none of the witnesses say, a-2 and A-3 were armed with any weapons. If really they shared the common intention with A-l to kill the deceased, then they would have caused some injuries to the deceased, though not with weapons or at least with hands, as there being no intervening circumstances to prevent them. Admittedly, they did not cause any injuries. Therefore, from the evidence on record, it cannot be said that A-2 and A-3 shared the common intention with A-l to do away with the life of the deceased Subramanyam. Therefore, the lower Court rightly acquitted A-3, but having given the benefit of doubt, the lower Court should have extended the same benefit of doubt to A-2 also. From the evidence on record, we have no hesitation in holding that a-2 and A-3 have not shared the common intention and hence the conviction and sentence recorded against A-2 under section 302 read with Section 34 IPC is liable to be set aside. ( 21 ) IN so far as the act of A-l is concerned he caused only one injury on the chest. The learned counsel for the appellants contended that A-l had no intention to cause death of the deceased as he had given only one blow. Therefore, the act comes under Section 304 part II I. P. C. For that he relied on a decision reported in Tholan v. State of Tamil Nadu. "in the circumstances of the case that, though requisite intention to commit murder could not be attributed to the accused, he wielded a weapon like a knife and therefore, he could be attributed with knowledge that he was likely to cause an injury which was likely to " cause death". "in the circumstances of the case that, though requisite intention to commit murder could not be attributed to the accused, he wielded a weapon like a knife and therefore, he could be attributed with knowledge that he was likely to cause an injury which was likely to " cause death". In such a situation though he could not be convicted under section 302, he would be guilty of committing an offence under Section 304 part II of Indian Penal Code. " ( 22 ) IN the instant case the deceased sustained a single injury on the left surface of the chest. As a result of stabbing the diaphragm on left side was cut. The spleenic vessels were also found cut and there was laceration of spleen. The Doctor categorically stated that the injury above is sufficient to cause death in the normal course of the nature. It is in the common knowledge of everybody that chest is the most vulnerable and delicate part of the human body and a kniffe is a formidable weapon which can easily yield deadly result. When a man stabs another on the vital part of the body such as chest with a weapon like M. 0. 1 he must have intended to cause death of the victim. In such a case the person inflicting the wound would be guilty of murder as the act by which the death is caused is done with the intention of causing death. Therefore, the offence made out against A-l is not culpable homicide not amounting to murder punishable under section 304 of the I. P. C. ( 23 ) THE meeting of the accused and deceased was not a chance meeting. A-l went to the shop of P. W. 2 where the deceased was talking with P. W. 2 and it is at that time he took out a knife from his waist and caused the injury. If he had no intention to cause death of the deceased he would not have- carried M. O. 1 with him to the place of occurrence. The force used by him was such that thereby some of the internal parts of the body were damaged. Hence he has to be convicted under Section 302 IPC. If he had no intention to cause death of the deceased he would not have- carried M. O. 1 with him to the place of occurrence. The force used by him was such that thereby some of the internal parts of the body were damaged. Hence he has to be convicted under Section 302 IPC. ( 24 ) IN the result, the conviction of A-l under Section 302 read with Section 34 IPC is modified to that of 302 IPC and the sentence imposed against him by the trial Court is confirmed. The conviction and sentence of a-2 are set aside and he shall be released forthwith if not required in any other case. The order of acquittal against A-3 is also confirmed. Crl. A. Nos. 1681 /2000and 548/2001 filed by A-l and the State respectively are dismissed while Crl. A. No. 167/2001 filed by a-2 is allowed.