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2004 DIGILAW 1142 (AP)

Angu Peddabbai v. State Of A. P.

2004-10-05

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) APPELLANT/accused preferred the present criminal Appeal as against the Judgment of the learned Sessions Judge, Visakhapatnam in S. C. No. 101/97 dated 7-8-1998. The learned Judge on appreciation of the evidence of P. W. 1 to P. W. 12 and Exs. P-1 to P-15 and m. Os. 1 to 9 came to the conclusion that the accused is guilty of an offence punishable under Section 304 Part I IPC and sentenced him to undergo Rigorous Imprisonment for a period of six years and also to pay a fine of rs. 500/-, in default to undergo S. I. for another one month. ( 2 ) SRI Praveen Kumar, the learned Counsel representing the appellant would contend that there is no direct evidence available on record and P. W. 1 to P. W. 6 do not speak about having witnessed the incident. The evidence of P. W. 8 also is doubtful since the name of P. W. 8 had not been mentioned in the FIR and subsequently P. W. 8 was thought of just for the purpose of having a witness as though he had witnessed the actual incident and therefore this witness is just a chance witness. The learned Counsel also had pointed out that there are several discrepancies in the version of the prosecution and hence the learned Judge totally erred in placing reliance on the discrepant evidence of P. W. 1 to P. W. 6 and P. W. 8 and convicting the accused and sentencing him for a period of six years and also to pay a fine of Rs. 500/-, in default to undergo S. I. for another one month. Reliance also had been placed on Patel Chela Viram v. State of gujarat, Bahal Singh v. State of Haryana, guli Chand v. State of Rajasthan, Kailash potlia v. State of A. P. , Anil Phukan v. State of Assam, Gurdial Singh v. State of Punjab, state of Rajasthan v. Taran Singh, State of haryana v. Prabhu and Gurcharan Singh v. State of Punjab. ( 3 ) THE learned Additional Public prosecutor on the other hand would contend that on the mere fact that the name of P. W. 8 was not mentioned in the FIR, the evidence of P. W. 8 cannot be disbelieved. The evidence of P. W. 8 is natural and convincing and well supported by other evidence. ( 3 ) THE learned Additional Public prosecutor on the other hand would contend that on the mere fact that the name of P. W. 8 was not mentioned in the FIR, the evidence of P. W. 8 cannot be disbelieved. The evidence of P. W. 8 is natural and convincing and well supported by other evidence. The learned additional Public Prosecutor also had taken this Court through the evidence available on record and would submit that in the facts and circumstances the learned Judge had recorded reasons in detail which need not be disturbed by the appellate Court. Reliance had been placed on Pammi v. Government of Madhya Pradesh. ( 4 ) HEARD the Counsel on record. ( 5 ) THE case of the prosecution is that on 18-4-1995 in Chittampadu in Agency Area there were only six houses belonging to the persons having the same surname. Reliance had been placed on Pammi v. Government of Madhya Pradesh. ( 4 ) HEARD the Counsel on record. ( 5 ) THE case of the prosecution is that on 18-4-1995 in Chittampadu in Agency Area there were only six houses belonging to the persons having the same surname. While angu Pinnayya, Angu Pullayya, Angu laxmayya, Angu Venkayya, Angu sanyasayya, Angu Vengalarao Angu laxmana Rao, Angu Rama Rao, Mathe nookaraju, the accused late Angu Ramayya and the deceased were engaged in re-roofing of the hut of Angu Yerrayya and at about 2 p. m. late Ramayya, the deceased, was on the roof of the hut and the accused was on the floor supplying the twine to the people on the roof with a stick known as Nelli Badda and in that process, the stick pricked the deceased when it touched him and then the deceased Ramayya abused the accused and in turn the accused went to his house and returned with a kolivinti badda (bow) and shot an arrow at the deceased from his behind and the said arrow pierced into his body from his behind and protruded out of his abdominal region and when the deceased raised cries of alarm the accused ran away from the place with the bow and arrow and thereafter the deceased was brought down from the roof and was laid at the house of angu Pinnayya and the father of the accused sanyasayya broke the hairy portion of the arrow and pulled it out from the body and the deceased breathed his last and afterwards the accused himself surrendered before the inspector of Police G. Madugula Police station at about 7 a. m. on 19-4-1995 and at his instance, a bow, an arrow and Nelli Badda were seized by the Inspector of Police and that there were ill-feelings between the accused and the deceased since three years prior to that date as the cattle of the deceased used to cause damage to the crops of the accused frequently. It was further alleged that the accused with an intention to kill the deceased released the arrow at the deceased and thereby committed an offence of murder punishable under Section 302 IPC. It was further alleged that the accused with an intention to kill the deceased released the arrow at the deceased and thereby committed an offence of murder punishable under Section 302 IPC. ( 6 ) THE learned Executive Magistrate had taken the case on file and on appearance of the accused, furnished copies and after complying with all other legal formalities committed the matter to the Court of Session. The learned Judge recorded reasons in detail and also recorded clear findings that the cause of death of the deceased was effected by the appellant/accused alone, but however, found him guilty under Section 304 Part I ipc. ( 7 ) P. W. 8 deposed that he is a resident of palamasangi and originally he was residing at Boddagandi and he lives by cultivation. He further deposed that on 17-4-1995 he had been to Chittempadu alone with his friend angu Vengalarao (P. W. 4) and on the next day about 11 people were engaged in thatching the roof of the hut of Yerrayya and he was present throughout and he too assisted them by supplying hay from the ground. The accused and the deceased also were there. The accused was supplying the rope from inside the hut and the deceased was on the roof along with some others. At about 2 p. m. while the accused was supplying the rope through Nalli Badda it caused injury to the foot of Ramayya, the deceased, who was above the roof. Then he abused the accused in vulgar language. The accused came out of the hut seriously and went towards his house and returned with bow and two arrows and got up one stone situate behind the house of Yerrayya and from there he shot an arrow on the back of Ramayya, the deceased. While P. W. 8 was about to caution Yerrayya, the accused released the arrow and caused injury to the deceased on his back. The deceased Ramayya raised cries and then the other persons on the roof brought him down. P. W. 8 also deposed that sanyasayya removed the arrow from the body of the deceased and thereafter the deceased Ramayya died. P. W. 8 further deposed that after hitting the deceased, the accused ran away. P. Ws. 1 and 2 went to the police station and gave report to the police. Police came on 19-4-1995. P. W. 8 also deposed that sanyasayya removed the arrow from the body of the deceased and thereafter the deceased Ramayya died. P. W. 8 further deposed that after hitting the deceased, the accused ran away. P. Ws. 1 and 2 went to the police station and gave report to the police. Police came on 19-4-1995. The accused also came and P. W. 8 was examined by the police. This witness, P. W. 8, was cross-examined at length, but nothing serious had been elicited. This witness also had identified the Material Objects. ( 8 ) MUCH comment was made as far as the evidence of P. W. 8 is concerned on the ground that he is only a chance witness and his presence is highly doubtful on the fateful day since his name was not mentioned even in the FIR. In the decision referred (10 supra) where the injured eye witness failed to mention names of other witnesses when he gave first information statement it was held that evidence of such other eye witnesses cannot be discarded on that ground particularly when their testimony was subjected to rigorous cross-examination and no material was elicited to doubt their presence. On a careful scrutiny of the evidence of P. W. 8, there cannot be any doubt whatsoever that P. W. 8 was a witness to the incident. Apart from the evidence of p. W. 8, the evidence of P. W. 1 to P. W. 6 also is available on record which had been discussed in detail by the learned Judge. It is no doubt true that much comment was made on this evidence on the ground that none of these witnesses actually had seen the incident, but what had happened on the fateful day had been clearly deposed by all these witnesses. Hence the findings recorded by the learned Judge on the strength of the evidence of P. W. 8 coupled with the evidence of P. W. 1 to P. W. 6 cannot be found fault in any way. Hence the findings recorded by the learned Judge on the strength of the evidence of P. W. 8 coupled with the evidence of P. W. 1 to P. W. 6 cannot be found fault in any way. ( 9 ) P. W. 7 is the wife of the deceased and she deposed that at the time of the incident she was in herfield and no doubt she deposed that on that day her husband and the accused, p. W. 1 to P. W. 6 were engaged in rethatching the roof of the hut of P. W. 6 and she also deposed that on hearing the cries she rushed to the village and at that time she saw the accused running away armed with a bow and an arrow and also Nalli Badda and by the time she went to the house of P. W. 6 her husband was lying dead with bleeding injury on his stomach and back. This evidence of p. W. 7 also upto some extent would corroborate the evidence of P. W. 8 apart from the evidence of P. W. 1 to P. W. 6. P. W. 9 deposed about Ex. P-4. P. W. 10, doctor, who conducted autopsy over the dead body found the following, "an incised penetrated wound of entrance 1" width and " gaping of entire thickness of the abdominal wall on the lumbar region of right back oblique in direction, penetrated into the entire abdominal cavity. Caused by sharp pointed flat object. It was an ante mortem injury. Internal findings, Abdominal with an entrance penetrated wound on the right lumbar region to the abdominal cavity with exit wound on the front of the left side abdominal wall. Peritonial cavity was full of blood and blood-clots. Small intestines got penetrated wound of entire tube at four places in the upper abdominal cavity. Right ascending colon got penetrated wound on both sides. Lower surface of liver severe " depth of 4" length, parallel in direction. Right kidney divided from right to left. The venal artery right side divided. Stomach contained partly digested rice. " p. W. 10 further deposed that the above said injuries could have been caused by a single arrow blow pierced from back towards front side. Lower surface of liver severe " depth of 4" length, parallel in direction. Right kidney divided from right to left. The venal artery right side divided. Stomach contained partly digested rice. " p. W. 10 further deposed that the above said injuries could have been caused by a single arrow blow pierced from back towards front side. The deceased would appear to have died of shock and hemorrhage due to rupture of right kidney and right renal artery, liver and perforation of intestines by a penetrating wound. He further deposed that the said injuries were sufficient in the ordinary course of nature to cause death. Ex. P-5 is the postmortem certificate and he stated that M. O. 1 arrow could have caused the above injuries pointed out by him. He also further deposed that the injury was in the upward direction from back to front and it indicates that the victim was on higher plane than the assailant at the time of receipt of the injury, by about 45. P. W. 10 further opined that the assailant must have been at a distance of 25 to 30 feet from the victim at the time of releasing the. arrow. ( 10 ) THE evidence of the Doctor, P. W. 10, would corroborate the evidence of P. W. 8 and also P. W. 1 to P. W. 6. P. W. 11 is the head Constable who had deposed about receiving of Ex. P-1 report and registering cr. No. 19/95 and issuing FIR and examining p. W. 1 and P. W. 2 and recording their statements, P. W. 12 had deposed about the details of investigation and completion of investigation and filing of the charge-sheet. This witness was cross-examined at length. On a careful scrutiny of the evidence available on record, in the cross-examination of these witnesses, nothing serious had been elicited and the main ground of attack that P. W. 8, the only eye-witness, can be said to be only a chance witness, also cannot be accepted on the mere ground that his name was not mentioned in the FIR. It may be that P. W. 1 to P. W. 6 might have not actually witnessed what happened, but P. W. 7 specifically deposed about the appellant/accused running away and she rushing to the spot and seeing her husband dead. It may be that P. W. 1 to P. W. 6 might have not actually witnessed what happened, but P. W. 7 specifically deposed about the appellant/accused running away and she rushing to the spot and seeing her husband dead. These events form part and parcel of the same transaction as res gestae. It is needless to say that in a criminal trial though precedents may have to be followed, the facts of the case may have to be taken into consideration while applying the precedents and in this view of the matter in several cases the precedent value would be very limited since the criminal cases may have to be decided depending upon the facts of a given case on appreciation of the evidence available on record. In the present case, the decisions cited by the learned Counsel for the appellant may not alter the situation in any way. Viewed from any angle, on appreciation of the evidence of P. W. 1 to p. W. 12 and Exs. P-1 to P-15 and M. Os. 1 to 9, the prosecution was able to establish the guilt of the accused beyond all reasonable doubt and hence the findings recorded by the learned Judge need no disturbance at the hands of this Court and the said findings are hereby confirmed. However, taking the facts and circumstances and also inasmuch as old parents and wife and daughter are dependents on the appellant/accused and also taking into consideration that while taking exception to the conduct of the deceased in abusing him, the offence was committed in retaliation, the findings relating to conviction under Section 304 Part I IPC are hereby confirmed, but however, the Rigorous imprisonment for a period of six years and also payment of fine of Rs. 500/- in default to undergo S. I. for one month are hereby modified and R. I. for a period of 4 years are hereby awarded which would be just in the facts and circumstances of the case. Except modifying the sentence to R. I. for 4years under Section 304 Part II PC in all other particulars the findings of the learned Judge are hereby confirmed. ( 11 ) THE Criminal Appeal shall stand dismissed subject to the above modification of sentence.