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2004 DIGILAW 1019 (AP)

Chitari Lakshman v. State Of A. P.

2004-09-16

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) CHITARI Lakshman, appellant-accused in sessions case No. 576 of 1996 on the file of I additional Metropolitan Sessions Judge, hyderabad, aggrieved by the Judgment dated 17-10-1997, had preferred the present criminal appeal. ( 2 ) THE appellant is the sole accused and he was charged with Section 302 IPC. But however, the learned I Additional metropolitan Sessions Judge, Hyderabad, on appreciation of the evidence of P. Ws. 1 to 10, Exs. P-l to P-20, Ex. D-l and M. Os 1 to 11, had arrived at a conclusion that the prosecution was not successful in making out a case under Section 302 IPC. But however, the learned Judge convicted the appellant-accused for the offence under section 304-II IPC instead of the offence under section 302 IPC and sentenced him to undergo rigorous imprisonment for a period of seven years. Hence the present appeal. ( 3 ) SRI Veera Reddy, Counsel representing the appellant-accused made the following submissions: the learned Counsel in all fairness would contend that there cannot be any serious dispute abut the happening of the incident on the fateful day. But however, he would contend that in the light of the evidence available on record, there is serious doubt as to how the incident happened and who in fact had perpetrated the crime on the fateful day. Hence, the learned Counsel would contend that in the light of the material discrepancies, the appellant-accused is entitled to the benefit of doubt. The learned counsel had taken this Court through the evidence of P. Ws. 1 to 3 and also Exs. P-1 to p-20 and M. Os 1 to 11. The learned Counsel also would point out that the evidence of p. W. 6 in relation to disclosure statement and recovery of M. O. knife had been, disbelieved by the learned Judge and having held so, convicting the accused is totally unjustified. The learned Counsel also had pointed out the discrepancies in the evidence of P. Ws. 1,2 and 3 and the First Information report. The learned Counsel had also drawn the attention of this Court to the inquest report, post-mortem examination report and the direct evidence, which had been let in by the prosecution and the absence of the corresponding injuries as deposed by p. Ws. and as reflected in the medical evidence. The learned Counsel also had explained Ex. The learned Counsel had also drawn the attention of this Court to the inquest report, post-mortem examination report and the direct evidence, which had been let in by the prosecution and the absence of the corresponding injuries as deposed by p. Ws. and as reflected in the medical evidence. The learned Counsel also had explained Ex. P-17 wound certificate of the accused. The learned Counsel pointed out that the stabbing of the right side of the buttock was not specified either in the FIR or in 161 Cr. P. C. statement of P. W. 2 and this is an important deviation and definitely, it is an improvement, and the medical evidence would reflect that the injury is on the left side of the buttock. The learned Counsel also would point out that P. W. 3 would depose in relation to the injury on the left side of the buttock, which is in deviation of what had been deposed by P. W. 2. The learned Counsel would contend that P. W. 2 is no doubt the brother of the deceased. The learned Counsel had pointed out the sketch in relation to the scene of offence and would contend that the area is Ramleela ground which is an extent of about Ac. 500 and there were no lights on the fateful day. The purpose for which these people are said to have assembled at the spot also may have to be taken into consideration from the nature of evidence let in by examining P. W. 4. The evidence of P. W. 4 is definitely doubtful and at the best, he can be said to be a chance witness. The learned counsel also had explained the evidence of p. W. 5 and would contend that the evidence of P. W. 5 also cannot be believed. However, the evidence of P. W. 6 already had been disbelieved by the learned Judge by recording certain reasons. The learned Counsel also pointed out that P. W. 5 specifically deposed that he noticed one injury on the left side of the chest. P. W. 7 is the photographer and p. W. 9 is the doctor who had identified the signature of the doctor who issued Ex. P-18 certificate. The learned Counsel also explained about the ante mortem injuries and would submit that in view of the non-examination of the doctor who issued ex. P. W. 7 is the photographer and p. W. 9 is the doctor who had identified the signature of the doctor who issued Ex. P-18 certificate. The learned Counsel also explained about the ante mortem injuries and would submit that in view of the non-examination of the doctor who issued ex. P-18 certificate, the very cause of death was not established. Hence, this is definitely fatal to the version of the prosecution. The learned Counsel also had further explained about the seizure panchanama Ex. P-6 and the inquest report Ex. P-4 and would contend that the finger prints on M. O. 1 had not been identified and this would assume importance on the specific stand in the light of the suggestions put by the defence Counsel whether the accused was the person who actually stabbed on the fateful day or it was puli Raju who had perpetrated the offence on the said date. The finger prints on M. O. 1 had not been identified and this is a serious infirmity in the version of the prosecution. The evidence of P. W. 10 Investigating Officer also had been referred to in detail and the defects in the investigation had been highlighted by the learned Counsel. The learned Counsel also placed reliance on certain decisions to substantiate his submissions. Ultimately, the learned Counsel would conclude that here is a case where there is material discrepancy relating to the place where the injury was caused, in what way the injury had been caused, even in between the evidence of P. Ws 2 and 3 and in view of the matter, in view of the nature of the scene of offence, the possibility of other persons stabbing on the fateful day instead of the accused, definitely cannot beruled out and hence, the accused is entitled to the benefit of doubt. ( 4 ) PER contra, the learned Additional public Prosecutor would contend that no doubt that there are certain slight variations and inconsistencies in between the evidence of P. Ws. 2 and 3 and these inconsistencies would not touch the very root of the matter, the happening of the incident as such may have to be believed, especially, in the light of the version of the defence. 2 and 3 and these inconsistencies would not touch the very root of the matter, the happening of the incident as such may have to be believed, especially, in the light of the version of the defence. The learned additional Public Prosecutor would contend that the happening of the incident on the fateful day is not in dispute and the death due to stabbing with the knife also is not in dispute, and the only question that may have to be decided is how the incident had happened and who was the culprit, who in fact had stabbed the deceased on the fateful day. In the light of this version of the defence, the learned Counsel would contend that in the backdrop of the facts, the evidence available on record may have to be appreciated. The learned Additional Public prosecutor had taken this Court through the evidence of P. W. 2 and would contend that the evidence of P. W. 2 is so natural that he his the brother of the deceased and there is no reason or special motive attributed why p. W. 2 should depose as against the present appellant instead of Puli Raju and P. W. 2 normally would be interested in deposing truth only since the deceased is none other than the brother of P. W. 2, hence though a relative witness, much importance may have to be given to the evidence of P. W. 2. The evidence of P. W. 2 is well corroborated by the evidence of P. W. 3. Apart from this evidence, P. W. 4 who also immediately came to the spot had deposed about what had happened and this is a case where the accused at the spot was caught hold of red handed and hence, the version of the prosecution may have to be believed. The learned additional Public Prosecutor further elaborating the submissions had pointed out that it is no doubt true that there is some variance in between the inquest panchanama, post-mortem report and also the injuries deposed by the witnesses, who are said to have witnessed the incident on the fateful day and the medical evidence. But when clear direct evidence is available, the discrepancy if any, in the expert evidence, just the known evidence, medical evidence need not be given much credence. But when clear direct evidence is available, the discrepancy if any, in the expert evidence, just the known evidence, medical evidence need not be given much credence. While concluding his submissions, the learned additional Public Prosecutor would submit that in the light of the defence taken by the appellant-accused when the happening of the incident is not in controversy, the mere fact that the doctor, who issued the postmortem certificate, had not been examined, would be of no consequence even otherwise the signature of the said doctor had been identified by yet another doctor, who was acquainted with the signature and the reason fornon-examinational so had been explained and in the light of the facts and circumstances, merely because the doctor who had issued post-mortem certificate had not been examined, the appellant-accused definitely is not entitled to any benefit of doubt whatsoever. The learned Additional Public prosecutor placed strong reliance on Barati v. State of U. P; Shamu Balu Chaugule v. State of maharastra, R. Prakash v. State of Karnataka, om Prakash alias Raja v. State of Uttaranchal, ambalal v. State of Rajasthan to substantiate his contentions. ( 5 ) THE factual matrix of the case, in brief, is as follows: on 26-7-1996, John Thomas (hereinafter referred to in short as the deceased) along with his friends D. Baiju alias Bijju and Bala kumar went to Maheshwari theatre and saw the Hindu feature film Mai Ne Pyar Kiya which was run as morning show in the theatre and after film was over, all of them went to toddy compound, Chinthal Basti and consumed toddy till about 8. 30 p. m. While they were still sitting and consuming toddy. Arogya Swamy alias Anil (P. W. 2) brother of the deceased came in search of the deceased to the toddy compound and told that his mother was calling the deceased. Then, all of them started back to their home. On the way, while passing through Ram Leela ground, khairatabad, the deceased found the accused, tappera Gopal and another person were consuming toddy and illicit distilled liquor by sitting in the Ram Leela ground. The deceased approached the accused and asked him the source from which he brought the illicit distilled liquor. The accused and the deceased got angry at each other and beat each other. The deceased approached the accused and asked him the source from which he brought the illicit distilled liquor. The accused and the deceased got angry at each other and beat each other. The accused took out a knife from his waist and stabbed the deceased on the left side of the chest and left side buttock, due to which, the deceased fell down with the bleeding injuries and became unconscious. The complainant-Baiji alias Bijju, the brother of the deceased-Arogya Swamy alias Anil, the friend of the deceased caught hold of the accused. Meanwhile, Bhagvan Singh came there and Slapped the accused. The complainant Baiju alias Bijju, Arogya Swamy alias Anil, Bala Kumar and Bhagwan Singh as well as the accused went in an auto to saifabad police station at about 9. 00 P. M. As the deceased was in unconscious state, he was immediately sent to Osmania General hospital, where the doctor Swarnalatha singh examined the deceased and declared him dead. On returning from the Osmania general Hospital, the complainant Baiju alias bijju gave the oral complaint and the same was reduced into writing and crime No. 382 of 1996 was registered under Section 302 IPC and after completing the investigation, charge sheet was filed against the accused under section 302 IPC. ( 6 ) XV Metropolitan Magistrate, hyderabad registered the case as P. R. C. No. 19/1996 and committed the same to the metropolitan Sessions Judge, Hyderabad, and the learned Sessions Judge made over the same to the I Addl. Metropolitan Sessions judge, who had recorded the evidence of p. Ws. 1 to 10 and marked Exs. P-1 to P-20, ex. D-1, and M. Os 1 to 11 and convicted and sentenced the accused for the offence under section 304-II IPC instead of Section 302 IPC. ( 7 ) P. W. 1 deposed in detail what had happened on the fateful day. He deposed that he can identify the said Laxman. He deposed that the accused present in the Court is the said Laxman. He deposed that on the fateful day, the accused got angry and there was exchange of words between the deceased and the accused and meanwhile, he went near and the accused took out the knife and stabbed on right side buttock of the deceased and also on the left side of chest and then the deceased fell down on the ground. He deposed that he beat the accused with the hand saying why he did so, then the locality people gathered there. This witness also deposed that all of them had taken the deceased and also the accused in an auto to the police Station, Saifabad and then the constable accompanied the deceased to osmania General Hospital and the accused was kept in the police station. He further deposed that he also went to Osmania general Hospital with the deceased and a lady doctor examined the deceased and declared him dead. He further deposed that after returning to the police station, his statement (Ex. P-1) was recorded by the sub Inspector. Ex. P-1 reads as hereunder:"i am working as Auto Driver cum salesman in Dwaraka Mai Agency situated at Kachiguda since 4 years. My monthly salary is Rs. 1200/ -. Today i. e. , on 26-7-1996, I along with John Thomas and Bala Kumar went to Maheswari talkies for movie of "maine Pyarkiya morning show. After completion of the cinema, we three went to Chinthal basthi toddy compound and had toddy till 8. 30 p. m. At that time the brother of the John Thomas Mr. Arogya Swamy alias Anil came to toddy compound and informed to John Thomas that his mother was calling. After that we all four persons came out from the toddy compound and proceeded towards ramleela ground. On the way to the ramleela ground Mr. Laxman and Puli raju and another person were consuming toddy and Gudumba. John thamos asked Laxman where the gudumba is available. Laxman and Puli raju informed that Gudumba sellers are available at Budagajangambasti beside Chintal Basti, they are known to me. Laxman and John Thames were quarreled and became angry and beat each other. Laxman took out the knife from his waist and stabbed on the left side of the chest of John Thames. All are immediately went there and caught hold of Laxman, the banian of the laxman is in pool of blood. I asked laxman why you have stabbed John thames with knife and I beat on his left jaw. Meanwhile, Bhagawan Singh and the locality people came there. Bhagawan Singh also beat Laxman twice on his cheek. John Thomas who received stab injury with knife fell on the ground and became unconscious at about 8. 45 p. m. John Thomas s shirt is in pool of blood. Meanwhile, Bhagawan Singh and the locality people came there. Bhagawan Singh also beat Laxman twice on his cheek. John Thomas who received stab injury with knife fell on the ground and became unconscious at about 8. 45 p. m. John Thomas s shirt is in pool of blood. All came to Saifabad police Station in an auto along with john Thomas and Laxman. John thomas is in very critical condition and he is not in a condition to give statement to the police. Immediately, police sent john Thomas to Osmania General hospital and we also went to Osmania general Hospital along with John thomas. The duty doctor examined john Thomas and declared him as dead, and the dead body was shifted to mortuary room and we all returned to saifabad Police Station and I gave the above statement to C. I. of Police, saifabad. "this Witness was cross examined. P. W. 1 deposed that he did not state before the police that after the film was over all of them went to toddy compound Chintal Basti as in ex. D-l, P. W. 1 admitted that the deceased thomas and the accused are friends and ramleela maidan was not dark but there were lights and there are houses near ramleela maidan after passing the temple. He deposed that the incident took place in the ground of Ramleela and the temple is sufficiently away from the place of stabbing. He deposed that Puli Raju is a resident of their locality and the another person with the accused and Puliraju was Gopal. This witness also deposed that it is not true to say that Puli Raju and Gopal had stabbed the deceased and then, the accused tried to stop them, the deceased fell on the accused. P. W. 1 also deposed that it is not true to say that he did not state before the police regarding the accused stabbing on the right side buttock of the deceased and it is to true to suggest that he did not state before police that he can identify the knife used by the accused and it is not true to say that he was in fully drunken state and he did not witness the accused stabbing and because of the availability of the accused at the spot, he is attributing the stabbing to the accused. This witness also deposed that he did not state before the police that in the evening they again met and went to toddy compound of Chintala Basti. No doubt, this witness admitted that by the date of incident Puli Raju is not residing in their locality. No doubt, this witness denied certain suggestions put to him. ( 8 ) P. W. 2 is the brother of the deceased. He deposed that the deceased did not return till 8. 00 p. m. and his mother asked to find out the deceased saying he may be available at hotel or toddy compound and he searched in hotel but the deceased was not available and then, he went to toddy compound of chinthalabasti and it was about 8. 30 p. m. and he saw the deceased, P. W. 1 and balakumar were consuming toddy and then, he informed the deceased that his mother was calling him and asked him to come and after finishing consuming of toddy, the deceased, P. W. 1 and Balakumar started to come to the house. This witness also deposed that on his asking, the deceased told that he went to see the film myne Pyar Kiya and when they were returning from Ramleela play ground, they saw that Laxman, Puliraju and one more person were drinking arrack and toddy and he can identify the said laxman and the accused present in the Court is the said Laxman and then, the deceased went to the accused and asked him from where he got the arrack packets since they know each other and then there was argument between the accused and the deceased and the accused got angry for such asking by the deceased. The accused and the deceased abused each other and the accused took out the knife from waist and stabbed the deceased on the right side buttock and on the left side of the chest and then Puli Raju and another person started running away and on receiving injury, the deceased fell on the ground and the accused pushed away the deceased and started running. This witness deposed that the accused threw the knife in the granite stones stored in the ground for building compound and then P. W. 1 caught hold of the accused while he was running away, and P. W. 1 beat the accused on his face with the hand and then Bhagwan Singh and other people of the locality came there and beat the accused. He further deposed that the deceased had lost consciousness and then all of them went to the police station. This witness specifically deposed that he noticed that the right hand thumb of the accused was cut. He deposed the other aspects also. This witness was cross-examined and the suggestions were denied that there were no lights inside the ground and other suggestions also had been denied. This witness deposed that he does not know whether Puli Raju was previously involved in an attempt to murder case that occurred n the same toddy compound. P. W. 2 also deposed that it is not true to suggest that he did not say before the Magistrate regarding the accused throwing away the knife in the stones and it is not true to say that he did not state before the police regarding the accused stabbing the deceased on the right side buttock and that he did not witness anything and that he is giving false evidence at the instance of police. The other suggestions had been denied. A specific suggestion was put to the effect that it is not true to say that Puli raju, Gopal the another person were stabbing the deceased and accused being friend of the deceased tried to save him and received injuries to his right thumb. The Court posed a question that prior to the incident Puli Raju was residing in the locality of Bichapodu which is little away from Chintalabasti and he does not know if Puli Raju is not residing in that Bichapodu locality after the incident. No doubt certain suggestions were made that the corresponding injury on the right buttock of the accused is not reflected in the medical evidence. But it is not pertinent to note that a suggestion was put to P. W. 2 to the effect that the accused while trying to save the deceased had sustained the said injury. ( 9 ) P. W. 3 is yet another witness who had supported the version of P. Ws. But it is not pertinent to note that a suggestion was put to P. W. 2 to the effect that the accused while trying to save the deceased had sustained the said injury. ( 9 ) P. W. 3 is yet another witness who had supported the version of P. Ws. 1 and 2. No doubt, P. W. 3 specifically deposed that the accused took out the knife and stabbed on the left side buttock of the deceased and also on the left side of the chest. This evidence of p. W. 3 is no doubt contradictory to that of p. W. 1 and 2 and it is in corroboration with the medical evidence. Submissions at length were made on this aspect. This evidence was cross-examined at length. ( 10 ) P. W. 4 is the person who immediately rushed to the spot and who had identified the accused as the person who was present at the spot and he also deposed that he also slapped the accused twice and thrice and he had accompanied the accused, deceased and other persons to the police station also. A comment was made that the evidence of p. W. 4 is an artificial and he his just a chance witness and his presence at the spot is highly doubtful. ( 11 ) P. W. 5 is the witness who deposed that he can identify the articles M. Os 2 and 3 and he had deposed about Exs. P-2 and P-3 scene of offence panchanama and rough sketch of the scene of offence respectively and also this witness deposed about Ex. P-4 inquest panchanama. This witness no doubt deposed in cross-examination that he noticed one injury on the left side of the chest. Certain submissions were made in relation thereto. ( 12 ) P. W. 6 is the person who deposed that he can identify the knife and M. O. 1 is the same knife seized from the accused. No. doubt, the evidence of this witness was viewed with suspicion by the learned Judge. The evidence of P. W. 6 is to the limited extent relating to the Ex. P-5 relevant portion of the confessional statement of the accused, m. O. 1 and Ex, P-6 seizure panchanama of the knife. ( 13 ) P. W. 7 is the photographer and he deposed about Exs. The evidence of P. W. 6 is to the limited extent relating to the Ex. P-5 relevant portion of the confessional statement of the accused, m. O. 1 and Ex, P-6 seizure panchanama of the knife. ( 13 ) P. W. 7 is the photographer and he deposed about Exs. P-7 to P-10 positive photos and negatives of scene of offence. This witness also deposed about Exs. P-11 to p-16 positive photos and negatives of the dead body. ( 14 ) P. W. 8 doctor examined the accused brought by HC No. 6712 of Saifabad P. S. and found the following injuries: (1) Lacerated wound over left middle of the mandible, tenderness over middle of the mandible. (2) Lacerated wound over left angel of the mouth (3) Tenderness over the epigastrum. This witness also deposed that she had seen x-ray report and found fracture left side mandible and Patient was sent to D. S. O. (General) and D. S. O. (Ortho), but the patient did not attend the plastic surgery and she can identify the patient. She deposed that the accused present in the Court is the person examined by her. Ex. P-17 is the wound certificate issued by her. No doubt this witness deposed that she did not find injury on the right thumb of the accused. In view of the medical evidence, submissions were made that the evidence of P. W. 2 on this aspect may have to be disbelieved. But it is pertinent to note that a specific suggestion was put in this regard that such injury in fact had been sustained by the accused when the accused tried to save the deceased at the time of stabbing from the hands of Puli Raju and another. ( 15 ) P. W. 9 Assistant Professor, Forensic medicine, Osmania Medical College, hyderabad, is the crucial witness. He deposed that Dr. V. Patnaik, who is on long leave, had conducted autopsy on the dead body of John Thomas. He deposed that he knows Dr. V. Patnaik very well and he is well acquainted with his signature and ex. P-18 is the post mortem report issued by dr. V. Patnaik and he can identify his signature on Ex. P-18 and according to post mortem report, the cause of death is due to stab injury on chest. Submissions at length were made on the aspect of the evidentiary value of Ex. P-18 is the post mortem report issued by dr. V. Patnaik and he can identify his signature on Ex. P-18 and according to post mortem report, the cause of death is due to stab injury on chest. Submissions at length were made on the aspect of the evidentiary value of Ex. P-18 relating to the cause of death, in view of the non-examination of dr. V. Patnaik, who issued Ex. P-18. ( 16 ) P. W. 10 is the Inspector of Police who deposed in detail about the details of investigation and also filing of the charge sheet. This witness was cross-examined at length. This witness no doubt deposed that he did not make any efforts for ascertaining the existence of finger prints on the knife m. O. 1 and it is not mentioned in the requisition sent for the treatment of the accused to ascertain whether the accused person was in drunken condition or not. This witness also deposed that in spite of his efforts, he could not trace Puli Raju and examine him as witness and as such he did not cite him as a witness in this case. He deposed that to his knowledge, no cases are pending against Puli Raju in Saifabad police station. This witness further deposed that there are residential houses and he had not drafted any search proceedings before proceeding to the place from where the knife m. O. 1 was got recovered by the accused as he felt it was unnecessary as it was open place and he did not taken the photographs of exactlocation of sceneof offence. He denied specific suggestions that the photographs were not taken for certain reasons. This witness further deposed that as per his investigation, there was no previous enemity between the accused and the deceased. He denied certain suggestions put to him in this regard. This is the evidence available on record. ( 17 ) THE evidence of P. W. 10 also would disclose that the statements of P. Ws. 1 to 3 were recorded even under Section 164 Cr. P. C. ( 18 ) ON the strength of this evidence, the learned Judge recorded findings in detail and no doubt, viewed the evidence of P. W. 6 with some suspicion. ( 17 ) THE evidence of P. W. 10 also would disclose that the statements of P. Ws. 1 to 3 were recorded even under Section 164 Cr. P. C. ( 18 ) ON the strength of this evidence, the learned Judge recorded findings in detail and no doubt, viewed the evidence of P. W. 6 with some suspicion. But in view of the fact that the other material available on record would disclose the offence under section 304-II IPC, accordingly convicted and sentenced the accused. The main ground of attack is that Ex. P-18 inquest report was not proved in accordance with law. The evidence of P. Ws. 1 and 2 on one hand and the evidence of P. W. 3 on the other hand would show that the happening of the incident is not in a definite way and this inconsistency is a serious inconsistency and hence, the appellant-accused is entitled to benefit of doubt. It is no doubt true that P. Ws. 1 and 2 had deposed about the stabbing on the right side of the buttock. P. W. 3 specifically deposed the stabbing on the left side of the buttock and the medical evidence is in corroboration with the evidence of p. W. 3. This is the discrepancy which had been seriously highlighted by the Counsel representing the appellant. This discrepancy in the evidence of P. Ws. 1 to 3 and also the medical evidence, may have to be appreciated in the back drop of the factual matrix. ( 19 ) IT is pertinent to note that the very version of defence is that the incident did happen. But, however, the accused being the friend of the deceased went in rescue of the deceased and in the course of the same, he had sustained certain injuries. This is the definite and specific version of the defence as can be culled out from the suggestions put to the prosecution witnesses. The presence of the accused at the spot cannot be doubted in any way in the light of the stand taken by the defence. On the contrary, the version of the defence is that it is Puli Raju who had perpetrated this offence and in fact, the accused had gone to the rescue of the deceased at the relevant point of time. On the contrary, the version of the defence is that it is Puli Raju who had perpetrated this offence and in fact, the accused had gone to the rescue of the deceased at the relevant point of time. Yet another contention is that P. W. 1 was in a drunken condition and he was not well with another witness also and the incident on the fateful day had happened in the Ramleela ground of an extent of Ac. 5. 00 and there was darkness and for want of light, these witness would not have identified who actually had stabbed the deceased and hence, the appellant-accused is entitled to benefit of doubt. These contentions cannot be accepted for the reasons, which are specified infra. ( 20 ) P. W. 2 is the brother of the deceased. No specific motive as such had been attributed to P. W. 2 to choose only the accused leaving Puli Raju and as to why this case to be foisted as against the accused only leaving puli Raju. If really Puli Raju was the person, who had perpetrated this offence as against his brother, in the light of this conduct definitely the version of the defence cannot be believed. P. W. 2 is a natural witness, who came over to the spot at the instance of the mother to call his brother, secured him and while coming back to the house along with the deceased and certain others, this incident had happened. It is no doubt true that the evidence of P. Ws. 1 and 2 and P. W. 3 on one hand and also the evidence of P. Ws. 1 and 2 and the medical evidence on the other hand are just contradictory to the limited extent of the stabbing on the right side buttock or left side of the buttock. In the light of the direct evidence available on record relating to the incident, this minor contradiction in between the evidence of P. Ws. 1 and 2 and P. W. 3 on one hand and the medical evidence and that of P. Ws. 1 and 2 may not assume significant importance. In the light of the direct evidence available on record relating to the incident, this minor contradiction in between the evidence of P. Ws. 1 and 2 and P. W. 3 on one hand and the medical evidence and that of P. Ws. 1 and 2 may not assume significant importance. ( 21 ) (I) In Solanki Chimanbhai Ukabliai v. State of Gujarat the Apex Court while dealing with medical evidence, value of and use of medical evidence by defence and inconsistency between testimony of eyewitnesses and medical evidence, would be no ground to discard testimony of eyewitnesses, it was held that"ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use, which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. Thus, the learned Judge had rightly relied upon the evidence of P. Ws. 1 to 3, who had directly witnessed the occurrence and also p. W. 4, who immediately rushed to the spot, and in fact, even he slapped the accused for what he had committed, twice or thrice. The presence of P. W. 4 also definitely cannot be doubted on the ground that he is only a chance witness. The other evidence available on record is the evidence of P. Ws. 5 and 6. No doubt, the evidence of P. W. 6 had been viewed with suspicion by the learned Judge. But this may not assume much importance in the light of the clear evidence of P. Ws. 1 to 3, the direct evidence in relation to the incident. P. W. 7 is the photographer submissions at length were made in relation to the evidence of P. W. 9 and Ex. P-18 postmortem certificate. It is no doubt true that the person, who had issued post mortem certificate ordinarily to be examined. 1 to 3, the direct evidence in relation to the incident. P. W. 7 is the photographer submissions at length were made in relation to the evidence of P. W. 9 and Ex. P-18 postmortem certificate. It is no doubt true that the person, who had issued post mortem certificate ordinarily to be examined. But, here is a case where direct evidence is available relating to the incident, in such a case, the cause of death may not assume such serious importance and the medical evidence as such, which is only opinion evidence or expert evidence, which would be corroborative in nature, may not be very significant. " (II) Be that as it may, the learned additional Public Prosecutor placed strong reliance on Prithi Chand v. State of H. P. wherein the Apex Court in a similar fact situation at paragraph No. 4 held that,"the prosecutrix was examined by, dr. C. S. Vedwa, who had issued the medical Certificate, Ex. P-E dated 16th june, 1979. The Medical Certificate. shows that the prosecutrix had not developed secondary sex characters, auxiliary and public hair were absent and there were abrasions of 3" x 1/8" and, 2" x 1/8" on the lumber region. She also found signs of inflamation around the vulva; the vagina was bleeding the hymen was absent with the edges torn and there was tenderness all around. The hymen was bleeding on touch and the vagina admitted one finger with difficulty. The girl s Salwar was blood stained. It was taken in a sealed packet along with two slides and swabs. Unfortunately, this lady Doctor who had delivered a child was not available for giving evidence as she had proceeded on long leave. The learned sessions Judge felt that it would not be possible to secure her presence without undue delay, and therefore, permitted the prosecution to prove the certificate through P. W. 2 Dr. Kapila, who was conversant with her handwriting and signature, he having worked with her for about two years. He stated that the carbon copy of the certificate Ex. P-E was prepared by Dr. Vedwa by one process and bears her signature. The learned counsel for the appellant contended that this certificate was inadmissible in evidence-since the prosecution has failed to prove that the original certificate was lost and not available. He stated that the carbon copy of the certificate Ex. P-E was prepared by Dr. Vedwa by one process and bears her signature. The learned counsel for the appellant contended that this certificate was inadmissible in evidence-since the prosecution has failed to prove that the original certificate was lost and not available. Section 32 of the, Evidence act Provides that when a statement, written or verbal, is made by a person in the discharge, of professional duty whose attendance cannot be procured without an amount of delay the, same is relevant and admissible in evidence. Besides, since the carbon copy was made by one uniform process the same was primary evidence within was the meaning, of Explanation 2 to Section 62 of the Evidence Act. Therefore the medical certificate Ex. P-E was clearly, admissible in evidence. That apart, there is strong, reliable and dependable evidence of the prosecution witnesses which clearly proves that the prosecutrix was raped by the appellant. " (III) Reliance was also placed on In re ramaswami the decision of the Division bench of the Madras High Court, wherein it was held that"a post mortem certificate is not evidence. It can be used by the doctor who has given it to refresh his memory when giving evidence and it was also be used as a record of what he observed at the time of post mortem examination or perhaps to contradict what ever he might say in the witness box but it cannot by itself be substantive evidence. " (IV) In Perumal Mudaliar v. South Indian railway Company Ltd. while dealing with the evidence of experts it was held that "the evidence of experts must be given in the ordinary way. Subject to certain exceptions those exceptions being amongst others the certificates of the Imperial Serologist touching the matter of blood stains and of the chemical Examiner, which are made admissible in evidence by themselves it is quite obvious that the opinion of an expert must be given orally and that a mere report or certificate by him cannot possibly be evidence. Unless he goes into the witness box and gives oral evidence, there can be no cross- examination of the expert at all. " (V) Reliance was also placed on Kota Peda nagesh v. State of A. P. rep. Unless he goes into the witness box and gives oral evidence, there can be no cross- examination of the expert at all. " (V) Reliance was also placed on Kota Peda nagesh v. State of A. P. rep. , through Public prosecutor, High Court of A. P. the decision of the Division bench of this Court wherein it is held that:"the author of post-mortem certificate (doctor) was not examined and it has not come on record that the author of the post-mortem certificate was onmore and merely because the certificate was obtained from the hospital, its genuineness is not automatically proved and the author must come and depose before the Court and the prosecution made no effort to seek the opinion of another doctor, who knows and can identify the hand-writing of the author and elicit his opinion on the nature of the injuries and their implication on the deceased. " (VI) In State of Haryana v. Ramsingh, the apex Court observed that "while it is true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the post-mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis-a-vis the injuries appearing on the body of the deceased person and likely use of the weapon there for and it would then be the prosecutor s duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses. " (VII) In Bindu Mahto and Hazan Mahto v. State of Bihar, the Division Bench of the Patna high Court while dealing with the admissibility of the post mortem report observed that"it is well settled that positive evidence in a case is that of the eye witness and evidence of medical expert is merely used for corroborating the same. Therefore, where it is proved beyond doubt by the evidence of eye-witnesses that murder was committed by the accused persons, the same cannot be disbelieved merely on the ground that the doctor who held post-mortem examination could not be examined. More so, when there is nothing in the evidence of the eye-witnesses to even suggest that there could be any motive for them to falsely implicate the accused persons. Conviction of the accused is, therefore proper. More so, when there is nothing in the evidence of the eye-witnesses to even suggest that there could be any motive for them to falsely implicate the accused persons. Conviction of the accused is, therefore proper. "no doubt this decision is a short-note decision and this practice of placing reliance on short- note decisions on the ground that they have some precedent value may have to be deprecated. Reliance was also placed on another decision relating to the difference between inquest report and post-mortem report. (VIII) In Munshi Prasad v. State of Bihar the Apex Court held that "preparation of an inquest report is a part of the investigation within the meaning of the criminal procedure code and as noticed above neither the inquest report nor the post-mortem report can be termed to be a basic evidence or substantive evidence and discrepancy occurring therein can neither be termed to be fatal nor even a suspicious circumstance, which would warrant a benefit to the accused and the resultant dismissal of the prosecution case. On the factual score Mr. Venkataramani relied heavily on the evidence of P. W. 7 being the Jagdishpur police Camp-in- charge in his evidence, P. W. 7 stated that the inquest report was prepared on the basis of the information contained in Sanah No. 306 and since the Sanah has not been produced, it has been contended that Sanah being the basic information sheet, non-production thereof would entail the consequences of adverse presumption as regards the involvement of the accused persons. Obviously, thus it has been contended that no body had any clue as to how the incident had occurred. Eloquent as always, Mr. Venkataramani has, in our view, over-emphasized the issue. Nonproduction of a substantive piece of evidence can under certain circumstances bring forth an adverse inference, but not in the present context. Technicality ought not to outweigh the course of justice on the face of trustworthy credible evidence on record and more so when the failure to produce does go to the root of the prosecution case. Situations, obviously would entail such consequences but in the present context, one cannot possibly stretch it that far. Technicality ought not to outweigh the course of justice on the face of trustworthy credible evidence on record and more so when the failure to produce does go to the root of the prosecution case. Situations, obviously would entail such consequences but in the present context, one cannot possibly stretch it that far. " ( 22 ) IN the light of the rival contentions which had been advanced by both the counsel at length and on appreciation of the evidence available on record, this Court is of the opinion that especially, in the light of the clear evidence of P. W. 9, explaining as to why this doctor was identifying signature in ex. P-18 of the prior doctor who had gone on leave, on the ground that the author of ex. P-18 had not been examined, definitely benefit of doubt cannot be extended in favour of the appellant-accused. Hence, this contention advanced by the learned Counsel for the appellant in elaboration needs to be rejected. ( 23 ) NO doubt, certain discrepancies were pointed out in between the inquest and the post-mortem report and also the other evidence available on record. This Court is of the opinion that these are all minor discrepancies especially, in the light of the specific defence taken by the appellant- accused to the effect that he tried to save the deceased, when he was being attacked at the relevant point of time. Viewed from any angle, this Court is of the opinion that the evidence recorded by the learned Judge does not suffer from any legal infirmity whatsoever. Accordingly, the findings are hereby confirmed. ( 24 ) IN the result, the conviction imposed by the I Additional Metropolitan Sessions judge, Hyderabad, on 17-10-1997 in Sessions case No. 576 of 1996 against the appellant- accused for the offence under Section 304-11 ipc is hereby confirmed. But, taking into consideration the fact that the appellant- accused is not a habitual offender, his aged father is depending on him and he may have to look after his family, the sentence of seven years rigorous imprisonment is hereby modified and reduced to a period of four I years under Section 304-II IPC. ( 25 ) EXCEPT making the above modification, in all other respects, the findings of the learned Judge are hereby confirmed. ( 26 ) THE criminal appeal is dismissed subject to the above modification. ( 25 ) EXCEPT making the above modification, in all other respects, the findings of the learned Judge are hereby confirmed. ( 26 ) THE criminal appeal is dismissed subject to the above modification. Bail bonds shall stand cancelled.