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2004 DIGILAW 846 (AP)

Rajuladevula Srinu and Srinivas v. State Of A. P.

2004-08-14

BILAL NAZKI, K.C.BHANU

body2004
K. C. BHANU, J. ( 1 ) THIS criminal appeal is directed against the judgment dated 1 -6-2001 in Sessions Case No. 253 of 1999 on the file of the Additional Sessions Judge, Adilabad whereby the sole accused therein was convicted and sentenced to undergo imprisonment for life for the offence under section 302 IPC and to pay a fine of Rs. 200/- in default to undergo simple imprisonment for one month. ( 2 ) IT seems the office processed the crl. Appeal No. 1264 of 2001 got filed by the accused through another advocate by mistake against the same judgment. Therefore we heard the arguments of Mr. Vijayasena Reddy in crl. A. No. 1240/2001, as no orders are necessary to be passed in Crl. A. No. 1264 of 2001 ( 3 ) THE factual score depicts that the marriage of the accused with the deceased rajula Vijaya took place about seven years back. The deceased begot a daughter and a son. The accused was working as a tailor at jannaram Village. On 16-7-1998 at about 7. 30p. m. or 8 p. m. , while P. W. 1 was present at the house of one Kodi Reddy, he heard some sounds as "amma amma" from the direction of the house of the accused. Then he darted to the house of the accused and found the deceased lying in front of the accused s house. Then the accused brought his one year old baby and put his baby at his (P. W. 1 s) foot and told him that he hacked his wife and was going to the police Station. P. W. 1 went to the Police station and lodged Ex. P-1 report at 9 p. m. By that time the accused was already present in the Police Station. P. W. 13 registered a case and informed about the registration of the case to P. W. 14 the Inspector of Police. P. W. 14 took up investigation and seized an axe from the possession of the accused who was present in the Police Station and also M. O. 3 shirt. On the next day the inspector went to the scene of occurrence and conducted inquest on the dead body of the deceased in the presence of P. W. 9 and others. The inquest witnesses opined that the deceased died as a result of the injury sustained by her. On the next day the inspector went to the scene of occurrence and conducted inquest on the dead body of the deceased in the presence of P. W. 9 and others. The inquest witnesses opined that the deceased died as a result of the injury sustained by her. P. W. 14 also seized clothes of the deceased, blood stained earth and controlled earth. After the inquest the cadaver was sent to the hospital. The doctor after conducting autopsy over the dead body opined that the cause of death was due to haemorrhagic shock and issued ex. P-5 report. Material objects were sent to the forensic science laboratory. After completion of the investigation P. W. 12 laid charge-sheet. ( 4 ) IN support of the case of the prosecution P. Ws. 1 to 14 were examined and Exs. P-1 to P-7 and M. Os. l to 8 were marked. On behalf of the accused certain portions in the statement of witnesses recorded by the police during the course of investigation were marked as Exs. D-1 to d-6. The lower Court after considering the evidence on record came to the conclusion that the prosecution had proved its case beyond all reasonable doubt for the charge levelled against the accused and was accordingly convicted and sentenced. It is as against the said conviction and sentence the present appeal is filed questioning its correctness and legality. ( 5 ) THE learned Counsel appearing for the appellant contends that there was no motive for the accused to commit murder of the deceased, that the extra-judicial confession said to have been given to P. W. 1 is a very weak piece of evidence, that p. W. 4, the son of the deceased and the accused even according to his own admission was not present at the time of the incident, that the recovery of weapon does not lead to an irresistible conclusion that the crime was committed by the accused, that the improvements and contradictions elicited in the cross-examination of witnesses would throw any amount of doubt as to the taking place of incident and therefore he prays to set aside the conviction and sentence. ( 6 ) ON the other hand, the learned public Prosecutor contends that P. W. 1 is a disinterested witness to whom immediately after the incident the accused made extrajudicial confession stating that he killed his wife, that there is no reason for him to speak false against the accused, that the evidence of P. W. 4 would clearly go to show that he was present at the time of the incident and a stray admission in the cross-examination cannot be taken as a sole ground to discredit his testimony, that except for the accused and the deceased there was no possibility for the third person to enter into the house, that the conduct of the accused immediately after the incident surrendering himself before the police is yet another circumstance to show that the accused committed the murder of his wife, that the recovery of weapon is also proved and that the homicidal nature of the death of the deceased is established and hence the lower Court rightly convicted the appellant and there are no grounds to interfere with the conviction and sentence passed by the court below. ( 7 ) P. W. 14 conducted inquest on the dead body of the deceased under Ex. P-3 in the presence of P. W. 9 and others. P. W. 9 stated that the deceased died due to axe injuries. Even the Counsel for the accused did not dispute about the opinion expressed by P. W. 9. After inquest the dead body was sent to post-mortem examination. P. W. 11 conducted autopsy on the dead body of the deceased on 17-7-1998 and found the following injuries:" (1) A deep incised wound 2. 5" x 2" x 3" above clavicular area on right side of neck. (2) A deep incised wound 2" x 11/2" x 2" over right side of neck. (3) A deep incised wound 3" x 2" x 11/2" over back side of neck". She opined that the deceased died as a result of haemorrhagic shock about 16 to 24 hours prior to her conducting the examination and the injuries could be possible with a weapon like M. O. 1. Her evidence is also not disputed by the accused. Therefore, from the evidence adduced by the prosecution it is established beyond all reasonable doubt that the death of the deceased was homicidal in nature. Her evidence is also not disputed by the accused. Therefore, from the evidence adduced by the prosecution it is established beyond all reasonable doubt that the death of the deceased was homicidal in nature. ( 8 ) THERE was no immediate motive adduced by the prosecution to support its case. Motive is not an integral part of the crime and it is only an aid in the assessment of criminality. When there is an acceptable evidence regarding the incident itself, the proof of motive is irrelevant. The evidence adduced by the prosecution does not become suspicious or doubtful simply because the prosecution has failed to prove motive for the crime. The absence of motive simply indicates that the prosecution evidence bearing on the guilt of the accused should be closely and cautiously examined. ( 9 ) P. W. 4 is the eye-witness to the incident. Though he was aged about 6 years at the time of his examination as observed by the learned Sessions Judge, but after satisfying himself that the witness was giving answers in a clear manner the learned sessions Judge recorded his evidence. Children are generally considered to be prone to tutoring and when their elders repeat something to them they begin to imagining them and really feel them to be the truth. Their innocent brains are like blank papers and can retain anything written over them by repeated communication. But that does not mean that they cannot remember anything. The only circumstance elicited from this witness is the admission made by him in the cross-examination, to the effect that at the time of the incident he was at the house of his maternal grandmother at badampalli. Basing on this admission the learned Counsel contends that he is not an eye-witness to the incident and therefore it is highly dangerous to place an implicit reliance on the evidence of this witness. If really the said admission is true and correct then certainly the same would have been spoken to by P. W. 3 who is no other than the maternal grandfather of this witness at whose residence P. W. 4 was staying after the incident. He did not state that P. W. 4 was residing with him by the date of the incident. It is also not suggested to him that P. W. 4 was staying with him by the date of incident. He did not state that P. W. 4 was residing with him by the date of the incident. It is also not suggested to him that P. W. 4 was staying with him by the date of incident. Furthermore, the evidence of P. W. 2 would go to show that after coming to know about the incident he rushed to the spot immediately and there he found the son of the accused. His statement that he saw the son of the accused immediately after the incident remains unchallenged. P. W. 4 was one of the witnesses examined at the time of the inquest by the police. Therefore, the presence of P. W. 4 at the time of the incident is established beyond all reasonable doubt. P. W. 4 might be under the impression that the question put by the accused in the Trial Court was as to his presence at the time of his examination and so he might have stated that he was staying at his maternal grandmother at Badampalle. That is more probable particularly because in his very cross examination he stated that himself, his parents and his younger sister used to live cordially in their house. So, basing on the aforesaid admission, it cannot be said that p. W. 4 was not present at the time of the incident. It is not the case of the accused that P. W. 4 was tutored by his maternal grandfather, P. W. 2 or other relatives. When the element of tutoring is ruled out then his evidence can safely be accepted. P. W. 4 clearly stated that the accused asked his mother to get a pillow and when she did not bring it the accused hacked his mother with an axe, as a result his mother died. He also placed his shirt and nicker on the neck of the deceased, the place where she sustained axe injury to stop bleeding. But unfortunately these two items were not seized by the police. Some errors committed by the police in the course of investigation cannot be taken advantage of by the accused if the main fabric of evidence produced by the prosecution is otherwise found to be true and correct. Therefore, we hold that P. W. 4 is an eye-witness to the incident and he was present at the time of the incident. Some errors committed by the police in the course of investigation cannot be taken advantage of by the accused if the main fabric of evidence produced by the prosecution is otherwise found to be true and correct. Therefore, we hold that P. W. 4 is an eye-witness to the incident and he was present at the time of the incident. From this evidence it can be said that the accused slew his wife by hacking with an axe. ( 10 ) COMING to the other evidence i. e. , extra judicial confession the value to be attached to an extra-judicial confession would depend upon the reliability of the person to whom it is made, interval between the occurrence and the confession, reproduction of the exact words of the person making confession to the crime and the follow up action which the person to whom the confession is made. On this aspect, it is pertinent to refer to a decision in Thimma v. State of Mysore, AIR 1971 SC 1871 . The relevant portion in that judgment is reproduced below. "an unambiguous confession, if admissible in evidence, and free from suspicion suggesting its falsity, is a valuable piece of evidence which possesses a high probative force because it emanates directly from the person committing the offence. But in the process of proof of an alleged confession the court has to be satisfied that it is voluntary, it does not appear to be the result of inducement. "p. W. 1 and P. W. 6 speak about the extra judicial confession. P. W. 1 was working as a medical Officer in Primary Health Centre of dasturibad. He stated that on the date of incident he heard some cries from the house of the accused. Then he rushed to the house of the accused. At that time the accused brought his one year old baby and put the baby at his foot and told him that he hacked his wife and was going to the Police station. A suggestion is given to him that he had not seen anything and only to save p. W. 5 M. Narasaiah and P. W. 6 T. Narayana who look after his cultivation he was deposing falsehood. Even if it is correct the above-mentioned persons have no grouse or enmity against the accused so as to implicate him falsely. A suggestion is given to him that he had not seen anything and only to save p. W. 5 M. Narasaiah and P. W. 6 T. Narayana who look after his cultivation he was deposing falsehood. Even if it is correct the above-mentioned persons have no grouse or enmity against the accused so as to implicate him falsely. So practically the evidence of P. W. 1 on material particulars remains unchallenged and there is no reason for him to speak false against the accused if really the accused did not confess anything to him. Therefore, in out opinion P. W. 1 is a witness of truth and he deposed to the aspects which are within his knowledge and what was stated by the accused to him. Further his evidence lends corroboration from P. W. 6. The incident took place at about 8 p. m. and within one hour thereafter he lodged Ex. P-1 report. As seen from Ex. P-1 report that on hearing the cries of the wife of Rajula Srinivas- accused he rushed there and found Vijaya lying in a pool of blood in front of the house and at that time the accused showed him his daughter who was crying by holding her in his hands, and his son P. W. 4. Ex. P-1 further shows that the accused told him that he hacked his wife and he was going to the Police Station. The earliest version recorded by the police is completely in corroboration with the evidence of p. W. 1 with regard to the accused giving extra-judicial confession. No doubt there is delay of 19 hours in Ex. P. 1 reaching the Court but it is the duty of the Station house Officer to send the express F. I. R s to all the concerned including the original FIR to the Court. Some technical errors committed by the police in discharging their duties not properly cannot be said to be a sole ground to acquit the accused. Therefore, in our opinion the extra-judicial confession is true and voluntary statement made by the accused. ( 11 ) THE incident took place within four corners of the house. Except the accused and the deceased and their children nobody else was present. Therefore, in our opinion the extra-judicial confession is true and voluntary statement made by the accused. ( 11 ) THE incident took place within four corners of the house. Except the accused and the deceased and their children nobody else was present. If it is a case of somebody entering into the house of the accused and committing the murder of the deceased, certainly the accused would have raised cries drawing the attention of the neighbours. ( 12 ) THEREFORE, the conduct of the accused immediately after the incident is relevant. It is pertinent to refer to a decision reported in Prabhakar v. State of maharashtra, AIR 1982 SC 1217 , wherein in Paragraph 16 the Apex Court has made the following observation:"the other circumstances listed had also been finally established. Once circumstance (a) is established, then taken in conjunction with the other circumstance, particularly the undisputed fact that at or about the time of malti s death, no third person excepting the accused and the deceased, was present in the house, it will inescapably lead to the conclusion that in all human probability, it was the accused appellant and none else, who had murdered the deceased by strangulating her death. "the accused has not offered any explanation for the death of the deceased in his house. Therefore, the conduct of the accused immediately going to the Police Station along with the weapon of offence is yet another circumstance proved by the prosecution. The police seized the weapon of offence when the accused went to the Police Station and though it is not a recovery in pursuance of a disclosure statement made by the accused, so as to bring it under the purview of Section 27 of the Indian Evidence Act, but the same can be taken as an admission of the accused to show the conduct immediately after the incident. According to the doctor, a weapon like M. O. I could have caused the injuries on the deceased. If any person other than the accused had committed the murder of the deceased, the accused would have raised hue and cry and resisted the attempt of that person and he would have lodged a report with the police. That would have been the natural conduct of the accused if any other person committed the murder. The accused did not do so. Instead he made the extra-judicial confession. That would have been the natural conduct of the accused if any other person committed the murder. The accused did not do so. Instead he made the extra-judicial confession. ( 13 ) THE learned Counsel for the accused brought to our notice certain improvements or contradictions made by some of the witnesses during the course of evidence. According to P. W. 1, while he was proceeding to the house of the accused p. W. 6 came opposite to him and informed him that the accused hacked his wife whereas P. W. 6 did not say that he informed p. W. 1 about the accused hacking the deceased. On the other hand, he stated that he met P. W. 1 in the courtyard of his house. Though P. W. 6 stated that the accused gave extra-judicial confession before P. W. 1 that he killed his wife and asked P. W. 1 to look after his children, he went into the village to inform the elders whereas P. W. 1 went to the Police Station. P. W. 6 is a neighbour to the accused and therefore there is every possibility for him to go to the scene of occurrence. Therefore P. W. 1 and P. W. 6 are the natural witnesses to be present at the time of the incident as their houses are located nearby and there was every possibility for them to reach the house of the accused on hearing some cries and at that time there was every possibility for the accused to give confession and nothing has been suggested to P. Ws. 1 and 6 as to the false implication of the accused. ( 14 ) P. W. 1 omitted to mention in Ex. P1 that P. W. 6 came rushing to him and exclaimed that the accused hacked his wife and so also he omitted to state before the police that on the instructions of the police he checked the deceased and found her dead. These omissions, and contradictions D-1 to d-6 in our opinion are very innocuous and they do not affect the substratum of the prosecution story. They are bound to be present in the statement of the witnesses who are deposing about the occurrence after a lapse of two years. Therefore undue importance cannot be given to Exs. D-1 to d-6. These omissions, and contradictions D-1 to d-6 in our opinion are very innocuous and they do not affect the substratum of the prosecution story. They are bound to be present in the statement of the witnesses who are deposing about the occurrence after a lapse of two years. Therefore undue importance cannot be given to Exs. D-1 to d-6. It is common experience that such improvements and contradictions are invariably found in the testimony of even the wholly truthful witnesses when they are made to depose of an occurrence after a lapse of two years. The capacity of human brains to retain minute details of the occurrence varies from man to man. In ourt opinion these contradictions do not cast reflection upon the evidentiary value of these two witnesses. ( 15 ) P. W. 5 did not support the case of the prosecution. ( 16 ) P. WS. 7 and 8 were examined to speak about the strained relationship between the accused and the deceased prior to the incident. They seem to be the elders and in the Panchayat the deceased told that the accused was not properly maintaining her and not treating her properly whereas the accused complained of small things in the family against the deceased. Then in the Panchayat both p. Ws. 7 and 8 directed the accused and the deceased to live cordially. But according to p. W. 2 no such Panchayat was held in connection with the disputes between the accused and the deceased. Even otherwise, the evidence of P. Ws. 7 and 8 would go to show that there were some ill-feelings between the accused and the deceased even prior to the incident. So their evidence did not in any way help the case of the prosecution. ( 17 ) THE lower Court observed that even if the evidence of P. W. 4 is discarded as tutored the evidence of P. Ws. 1 and 6 was solidly backing the prosecution charge against the accused. But it is not the case of the accused that P. W. 4 was tutored to give false evidence against his own father by p. W. 2 or any other relatives. Therefore, from the evidence on record, we have no hesitation in coming to the conclusion that it is the accused and he alone that committed the murder of his wife. Therefore, from the evidence on record, we have no hesitation in coming to the conclusion that it is the accused and he alone that committed the murder of his wife. The learned Sessions Judge appreciated the evidence in a right perspective and rightly convicted the accused and there are absolutely no grounds to interfere with the conviction and sentence. ( 18 ) IN the result, the appeal is dismissed confirming the conviction and sentence passed by the Court below.