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2003 DIGILAW 198 (AP)

K. RAVINDER v. State Of A. P.

2003-02-05

R.M.BAPAT, S.R.K.PRASAD

body2003
RAMESH MADHAV BAPAT, J. ( 1 ) THIS Criminal appeal is directed against the judgment dated 12. 3. 2001 rendered in s. C. 330 of 1999 by the learned Metropolitan sessions Judge, Hyderabad, whereunder the appellants herein (A1, A3 and A4) were convicted for the offence under Section 302 read with 34 of the Indian Penal Code and sentenced to undergo imprisonment for LIFE and to pay a fine of Rs. 500/- each and in default to suffer simple imprisonment for one month. ( 2 ) ORIGINALLY A1 to A6 were tried for the offence punishable under Section 302 read with 34 of the Indian Penal Code. On evidence the learned Sessions Judge found a-2 and A-6 not guilty of the said offence and accordingly acquitted them of the said offence. The case against A5 abated, as he died in the month of December, 2000 during the trial period. ( 3 ) THE substance of the charge against the accused is that on 26-2-1999 at about 9 a. m. , at Sabzi Mandi, Hyderabad, all the accused in furtherance of their common intention caused the death of one s. Ravinder by attacking him with sickles and talwars. ( 4 ) THE case of the prosecution in brief is that PW1 and PW2 are the uncles, pw6 is the grand mother and PW7 is the father of the deceased. PW1 and PW11 are cousin brothers and Al, A3 and A4 are brothers, while A2, A5 and A6 are friends of A1. The deceased used to do finance business and also vegetables business. The deceased married one Vijayalaxmi and was blessed with a son. Prior to his marriage he had a love affair with the sister of A1. But their marriage proposal was refused by PW7 even on the request of the parents of A1. Even after the refusal of the parents, their love affair continued. Thereafter, PW7 requested the parents of A1 to perform the marriage, but they refused. Subsequently the marriage of the deceased was performed with one vijayalaxmi and the marriage of the sister of A1 was also performed with some other person. It is stated that even after their marriage the deceased and A1 s sister used to meet each other, and therefore, A1 entertained a grouse against the deceased as he used to meet his sister even after the marriage. It is stated that even after their marriage the deceased and A1 s sister used to meet each other, and therefore, A1 entertained a grouse against the deceased as he used to meet his sister even after the marriage. On the date of the incident i. e. , on 26. 2. 1999 at about 9 a. m. , PW1 along with the deceased started from the house of pw1 on a Hero Honda. The deceased after dropping PW1 at Sharfi Chaman, Sabzimandi area proceeded towards Karwan side. After going to a distance within few minutes PW1 heard the cries of the deceased and he immediately rushed to the scene where he witnessed A1, A3 and A4 stabbing the deceased with talwars and sickles. When he went near, A1, A3, and A4 showed their knives against him. PW. 1 then further witnessed that A2, A5 and A6 stabbing the deceased with knives. He then immediately went to Kulsumpura Police Station and gave a report marked as Ex. P-1. According to pw. 5 she saw Al, A2, A3 and A4 armed with talwars hacking the deceased and she identified A1 to A4 According to PW6 when she was at old Sabzi Mandi, one boy informed her, that the deceased was beaten at upper basthi on which she rushed to the scene and found A1, A3, A4 and A6 hacking the deceased with talwars and sickles and she identified them in the Court. On the basis of the Ex. Pl report, PW14 the then Inspector of Police, Kulsumpura registered a case on 26. 2. 1999 at about 9-30 a. m. in Crime No. 23 of 1999 under Section 302 read with 34 IPC and issued FIR which is marked as Ex. P20. He then proceeded to the scene of offence where he found the dead body of the deceased lying with multiple injuries in a pool of blood. He got the scene photographed through PW. 10 and Ex. P9 and ex. P10 are the positive and negative photographs. He then conducted the scene of offence panchanama and drew the rough sketch of the scene in the presence of PW. 8, which are marked as Ex. P5 and Ex. P6 respectively. Thereafter he sent the dead body to Osmania General Hospital and at about 11 a. m. , PW. 14 in the presence of pw. He then conducted the scene of offence panchanama and drew the rough sketch of the scene in the presence of PW. 8, which are marked as Ex. P5 and Ex. P6 respectively. Thereafter he sent the dead body to Osmania General Hospital and at about 11 a. m. , PW. 14 in the presence of pw. 9 conducted inquest over the dead body of the deceased at the Mortuary of Osmania general Hospital and Ex. P17 is the inquest report. He then recorded the statement of PW1 to PW7 and Ex. P2 to Ex. P4 are the 162 Cr. PC statements of PWs. 2 to 4 respectively. On 26. 2. 1999, on the request of Police, kulsumpura, PW13 the then Professor of forensic Medicine, Andhra Pradesh Police academy conducted autopsy over the dead body of the deceased and opined that the cause of death of the deceased was due to multiple stab injuries. Ex. Pl8 is the postmortem report. On 27. 2. 1999 Al, A3, and A4 surrendered before the IX Metropolitan magistrate, Hyderabad. On a requisition made before the IX Metropolitan Magistrate on 1. 3. 1999, Al, A3, and A4 were given police custody. In the course of interrogation the accused 1, 3 and 4 made statements which were marked as Ex. P11, Ex. P12 and ex. P13 respectively which led to the recoveries of M. Os. 1 to 3 at the house of a1, A3 and A4. A scooter bearing No. AP-13-B 212 under a cover of Ex. P14 seizure panchanama was seized in the presence of PW. 11. On 11. 3. 1999 the Sub-Inspector of Police, arrested A-2 and produced him before pw. 14 who recorded his statement in the presence of PW. 12, marked as Ex. P16. In pursuance of his statement a sword was recovered from his house. On 5-3-1999 A5 and A6 were arrested and their statements were marked as Ex. P21 and Ex. P22 respectively. On 6-3-1999 they were sent to judicial custody. All the material objects were sent to Regional Forensic Science laboratory, Hyderabad. Ex. P23 is the report of the Forensic Science Laboratory. After completion of the investigation PW13 filed the charge-sheet. ( 5 ) THE defence of the accused is one of total denial. ( 6 ) BEFORE proceeding with the discussion on the findings recorded by the trial Court, we may point out a mistake. Initially Accused Nos. Ex. P23 is the report of the Forensic Science Laboratory. After completion of the investigation PW13 filed the charge-sheet. ( 5 ) THE defence of the accused is one of total denial. ( 6 ) BEFORE proceeding with the discussion on the findings recorded by the trial Court, we may point out a mistake. Initially Accused Nos. 1 to 6 were tried for the offence punishable under Section 302 ipc. There were six accused, but the learned Sessions Judge framed a charge under section 302 read with 34 IPC which is totally wrong. When there are more than five accused, the learned Sessions Judge ought to have framed a charge firstly under sections 147 IPC and 302 IPC read with 149 IPC. We, therefore, direct that the learned Sessions Judge should make a note of it for future guidance. ( 7 ) IN order to prove that the deceased died homicidal death the prosecution relied upon the evidence of PW14, the Investigating officer who conducted inquest over the dead body of the deceased. PW9 is the inquest panch and Ex. P17 is the inquest report. ( 8 ) AFTER the inquest was over, the dead body was sent to PW13 for conducting autopsy over it. PW13 happens to be working as Professor of Forensic Medicine A. P. Police academy on receipt of requisition from the Police Kulsumpura, conducted postmortem examination over the dead body of the deceased and noticed the following anti-mortem injuries: (1) Slash wound 20 x 6 cms x muscle deep horizontally placed on the upper 1/3 rd of the back and left side of the neck. (2) Slash wound 8 x 3 cms muscle deep leaving 2 cms below the injury No. 1 on the left side of the neck. (3) Stab injury 8 x 3 cms x cavity deep obliquely placed 4 cms below the angle of the scapula on the left side of the chest. The injury passed forward and entered the back of the lower lobe of the left lung with an injury of 4 cms in length (4) Stab 3 x 1 cms muscle deep 4 cms inner to the injury No. 3 and 6 cms away from the midline. (5) Stab 1. 5 x 1 cm x muscle deep on the back of the abdomen over the vertebrae L2 and L3. (5) Stab 1. 5 x 1 cm x muscle deep on the back of the abdomen over the vertebrae L2 and L3. (6) Stab 3 x 1 cm x muscle deep on the outer aspect of the middle of the left arm. (7) C shape slash wound 8 x 3 cm X muscle deep on the lateral aspect of the right thigh. (8) Cut wound 4 x 1 cm x muscle deep on the outer aspect of lower 1 /3 rd of the right forearm. (9) Cut injury of the right thumb of the inner aspect 3 x 1 cm x muscle deep. (10) Cut injury 4 x 2 cm x muscle deep on the outer aspect of the left forearm. (11) Abrasion 4 x 2 cm on the right shoulder. (12) Incised wound 10 x 1 cm x skin deep obliquely placed on the outer aspect of the right arm (13) Incised wound 10 x 1 cm x muscle deep obliquely placed on the right side of the face. (14) Slash wound 10 x 2 cm x bone deep on the left frontoperital region of the scalp. A piece of bone 3 x 1 cm is driven inside the brain on the perital region with defuse subdural haemorrhage on the left side. The blood vessels on the left side of the neck are cut. The left lung is collapsed with about 500 ml blood in the pleural cavity. The stab injuries are having sharp margins with pointed ends. The slash and incised wounds are having clean-cut margins on internal examination, he has noticed that the internal organs are pale and the cause of death was due to multiple stab slash injuries according to the estimation of the Doctor, the cause of death was approximately six hours prior to the examination. He further opined that the cause of death of the deceased was due to multiple stab injuries and slash injuries and that all the injuries were anti-mortem and they could be caused by a weapons like M. Os. l to 4 and he issued ex. P1 8 the post-mortem certificate. Considering the evidence let in by the prosecution on the point of homicidal death, we do hold that the deceased had died a homicidal death. In order to bring home the guilt of the accused the prosecution led the evidence of pws. l to 4 and he issued ex. P1 8 the post-mortem certificate. Considering the evidence let in by the prosecution on the point of homicidal death, we do hold that the deceased had died a homicidal death. In order to bring home the guilt of the accused the prosecution led the evidence of pws. 1 to 14 and certain documents produced and proved are marked as Ex. Pl to Ex. P23. The defence got marked Ex. Dl which is a contradiction. Out of the witnesses examined on behalf of the prosecution, PW1 happens to be the uncle of the deceased. He is an eye-witness to the occurrence. PW2 is also the uncle of the deceased. He is also an eye-witness to the occurrence, but he has turned hostile and has not supported the case of the prosecution. PWs 3 and 4 who are also the eye-witnesses to the occurrence have turned hostile and have not supported the case of the prosecution, whereas PW5 who is also an eye-witness has supported the case of the prosecution. PW. 6 is the 3rd eyewitness who happens to be the grand-mother of the deceased. She supported the case of the prosecution. PW7 is the father of the deceased who has been examined to prove that earlier there was a marriage proposal between the deceased and the sister of A1 which did not materialize and even after the marriage with different spouses, their love affair continued. PW8 is the panch witness who had attested the scene of offence panchanama Ex. P5 and the rough sketch ex. P6. PW9 is a panch witness who has attested the inquest panchanama Ex. P7. PW10 is the photographer who had taken the photographs of the dead body and PW11 is the panch witness in whose presence certain material objects have been recovered from the accused. PW13 is the Doctor who has conducted post-mortem examination and PW14 is the Investigating officer. Looking to the evidence, it is evident that PW1, PW5 and PW6 are eye-witnesses to the incident and therefore we proceed to scrutinize their evidence so as to ascertain as to whether the prosecution has been able to connect the accused with the charges levelled against them. Looking to the evidence, it is evident that PW1, PW5 and PW6 are eye-witnesses to the incident and therefore we proceed to scrutinize their evidence so as to ascertain as to whether the prosecution has been able to connect the accused with the charges levelled against them. The evidence of PW1, who happens to be the uncle of the deceased discloses that on the date of the incident, he had gone to the house of the deceased for some work and after finishing the work they were proceeding towards vegetable market and at that time the deceased S. Ravinder was riding the motor cycle and PW1 was on the pillion seat when they reached near Sabzi mandi, PW1 got down and the deceased proceeded on his motor cycle, that within few minutes PW1 heard the cries and commotion of the deceased. In order to see as to what had happened, he rushed towards Shafri Chaman and noticed that A1, a3 and A4 were hacking the deceased with the instruments in their hands. PW1 further speaks that in order to rescue the deceased, when he went little ahead, then the accused threatened him at the point of weapons which they were carrying. Therefore, PW1 could not rescue the deceased. The deceased died on the spot and the accused alleged to have ran away from the scene of offence. According to the version of PW1 immediately after the occurrence of the offence, he went to kulsumpura Police Station, lodged a complaint Ex. P1. On the strength of Ex. P1, the case was registered against the accused and the police machinery was set in motion. While giving Ex. Pl immediately after the occurrence, PW1 has named A1, A3 and a4 as the assailants, whereas it is for the first time while giving evidence in the Court, he has also made involvement of A2, A5 and A6 as persons who are responsible for causing the death of the deceased by stabbing. The learned Sessions Judge did not believe that portion of the evidence and therefore he acquitted A2 and A6 of the charges framed against them and the case against A5 abated as he died. The learned sessions Judge relying upon the evidence of pw1 and Ex. Pl convicted the accused-appellants herein. We have perused the evidence of PW5 who is said to be an eye-witness to the incident. The learned sessions Judge relying upon the evidence of pw1 and Ex. Pl convicted the accused-appellants herein. We have perused the evidence of PW5 who is said to be an eye-witness to the incident. According to him he has seen the accused 1, 3, 5 and 2 hacking the deceased with talwars. He was asked to identify the accused sitting in the accused dock. He was able to identify only A1 properly whereas he mis-identified accused no. 2 (K. Venkatesh) as accused No. 3, and accused No. 5 K. Santosh as A4 and accused no. 2 (Chandrashekhar) as A3. This is the factual position on record. The learned Counsel appearing for the appellants has submitted before this Court that as far as PW5 is concerned, he has not identified the accused Nos. 3 and 4 who are appellants 2 and 3 herein. The evidence of PW5 does not corroborate the evidence of PW1 to that extent and therefore, they are entitled to benefit of doubt. It is also brought to our notice that the names of A3 and A4 were also not mentioned in the First Information Report. Considering the above fact we hold that there is substance in the submission made by the learned counsel for the appellants. PW6 the grandmother of the deceased was also examined as an eye-witness to the incident. But we do not find that she is a natural witness to the incident. According to her version, when she was in Sabzi mandi selling the vegetables some boy came to her and told that the deceased was hacked to death by some persons and on hearing the noise she rushed to the scene of offence and she had seen A1, A4, A3 and a6 hacking the deceased. But her version does not appear to be natural, because she went to the scene of offence after about 10 minutes. It cannot be said that the accused were hacking the deceased for ten minutes, it is a short period. Moreover, PW6 is a lady aged about 62 years. We do not expect her to go to the scene of offence by running and therefore, her version that she was able to identify A1, A4, A3 and A6 cannot be believed. On a careful analysis of the evidence of the eye-witnesses, it is evident that PW1 and pw6 were able to identify A1 alone properly. We do not expect her to go to the scene of offence by running and therefore, her version that she was able to identify A1, A4, A3 and A6 cannot be believed. On a careful analysis of the evidence of the eye-witnesses, it is evident that PW1 and pw6 were able to identify A1 alone properly. Moreover the name of A1 also appears in ex. Pl report which has given immediately after the occurrence by PW1. Therefore, we are inclined to give benefit of doubt to accused nos. 3 and 4, the appellants 2 and 3 herein. In the result, we allow the appeal filed by A3 and A4 (appellants 2 and 3 herein) by setting-aside the conviction and sentence passed on them by the learned Metropolitan sessions Judge, Hyderabad in S. C. No. 330 of 1999 dated 12. 3. 2001. Accordingly A3 and a4 (appellants 2 and 3 herein) are acquitted of the charges levelled against them, and they are directed to be set at liberty forthwith, if they are not required in any other case. Insofar as the appeal filed by A1 (appellant No. 1) is concerned, we dismiss the same confirming the conviction and sentence passed on him by the Trial Court.