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2005 DIGILAW 382 (AP)

Bonagiri Ramana v. State Of A. P.

2005-04-21

BILAL NAZKI, L.NARASIMHA REDDY

body2005
L. NARASIMHA REDDY, J. ( 1 ) THIS criminal appeal is filed by the sole accused in S. C. No. 106 of 2001, on the file of the v Additional Sessions Judge (Fast Track court), East Godavari at Rajahmundry. Through its judgment dated 19. 9. 2002, the trial Court convicted the appellant for the offence under Section 302 of IPC, and sentenced him to undergo rigorous imprisonment for life and to pay a fine of rs. . 500/ -. In default, he was required to suffer simple imprisonment for six months. The Trial Court had also found the appellant guilty of offence under Section 309 of IPC, and sentenced him to suffer rigorous imprisonment for six months. ( 2 ) THE prosecution alleged that there existed certain disputes between the appellant and the deceased, Bonagiri lakshmi, who is the wife of his paternal uncle. It was alleged that, motivated by the enmity that existed against the deceased, the appellant beat her to death with a crowbar at about 5. 30 a. m. , on 29. 7. 2000. It was further alleged that soon after committing the offence of murder of the deceased, the appellant tried to commit suicide and stabbed himself with a knife in the abdomen, and thereby committed the offence under Section 309 of IPC. ( 3 ) THE prosecution examined PWs. 1 to 13 and exhibited documents Exs. P-1 to p-20. M. Os. 1 to 10 were also marked. ( 4 ) LEARNED Senior Counsel, Sri C. Padmanabha Reddy, appearing for the appellant submits that there is any amount of doubt as to the truthfulness of the evidence of PW. 2, the only direct witness in the case, and that there are several contradictions in his evidence on the one hand, and his statement recorded under section 161 Cr. P. C. , on the other. Learned senior Counsel submits that it has come in the evidence that the offence is said to have occurred in front of the houses of the deceased and the appellant, just ten yards away, and it was impossible for PW-2, to have seen or witnessed the occurrence of the offence from a distance of 50 to 60 yards from his hotel. He further contends that the hotel of PW-2 is below the level of the road, and it was impossible for any one to see anything occurring at the residence of the appellant and deceased from the said hotel. He also points out certain discrepancies. The learned Senior Counsel urges that the appellant suffered paralytic stroke and unable to walk properly, he fell upon a verandah and sustained injuries, and that the same was treated by the prosecution as an attempt to suicide. ( 5 ) THE learned Public Prosecutor, on the other hand, submits that the evidence of PW. 2 is corroborated by that of PW. 1, the son of the deceased, and other witnesses, such as, PW. 3, PW. 4 and PW. 8 who are the tenants of the appellant He submits that the contradictions and inconsistencies pointed by the learned Counsel for the appellant are trivial and of no consequence. ( 6 ) THE prosecution alleged that the appellant committed the murder of the deceased by hitting her with a crowbar, marked as MO. 1, during the early hours on 29. 7. 2000, and soon thereafter, attempted to commit suicide. As observed earlier, the appellant and the deceased are related. It was alleged that there were boundary disputes between the appellant and the deceased, and the same were resulted in a huge financial loss to the appellant. Another facet of the motive attributed to the appellant is that the deceased and her son, pw-1, interfered with the domestic affairs of the appellant, and had taken away the adoptive daughter from their custody and handed over her to her natural parents. ( 7 ) PW-1 is the son of the deceased and he is not a direct witness. According to him, on the fateful day, he was woken up by PW-2 and was informed that his mother was beaten by the appellant, with a crowbar, and that she was lying in a pool of blood in the bushes, at a distance of ten yards from his house. He rushed to the spot and found the deceased groaning. With the assistance of PWs. 3 and 6, he is said to have taken his mother in that condition, to the hospital, in an auto rickshaw, and that on the way, she died. The compounder of the hospital, to which the deceased was shifted, was examined as PW. 7. He rushed to the spot and found the deceased groaning. With the assistance of PWs. 3 and 6, he is said to have taken his mother in that condition, to the hospital, in an auto rickshaw, and that on the way, she died. The compounder of the hospital, to which the deceased was shifted, was examined as PW. 7. In the cross-examination, it was also elicited through pw-1 that the coffee hotel of PW. 2 is at a distance of 50 to 60 yards from his house, on the other side of the road, and that the coffee hotel is lower than the level of the road. He also admitted that one has to take a right rum after crossing the road to reach the hotel and bend his head to enter it. ( 8 ) PW. 2 is the crucial witness for the entire case. According to him, when he was attending to his hotel work at 5-30 a. m. , on 29. 7. 2000, he heard a cry from the nearby bushes, opposite to the house of the appellant, and immediately rushed to the place. He said that he found the appellant running away into his house, with a crowbar, and bolting his grill doors on seeing him. After noticing the deceased lying on the ground, he is said to have rushed to the house of PW. 1, woke him up and conveyed the information. He stated that PW-1 came to the spot, and with the assistance of PW-6, shifted the deceased to the hospital. He further stated that he heard the cries of the wife of appellant, and when he went there, he saw the appellant with a bleeding injury in his abdomen, caused with a knife, and" that MO. 1 was by his side. The statement of this witness was recorded by the police under Section 161 Cr. P. C. ( 9 ) IT was suggested to PW. 2 in the cross-examination that the houses of the deceased and the appellant are not visible from his coffee hotel, and that he cannot hear the cries from the houses of the deceased and the appellant. It was put to him that the deceased died on the previous day, and that at the instance of PWs. 1, 3 and 6, he is deposing falsehood. It was put to him that the deceased died on the previous day, and that at the instance of PWs. 1, 3 and 6, he is deposing falsehood. It was suggested that he is accused in an excise case and habitually goes around the Courts, and is a paid witness. Since the conviction of the appellant for the offence under section 302 of IPC is mostly based upon the evidence of PW. 2 and the other evidence is only corroborative in nature, it needs to be seen as to how far his version is truthful and reliable. ( 10 ) THE scene of offence panchanama is marked as Ex. P-17. A perusal of the same discloses that the houses of the deceased and the appellant abut each other. Opposite their houses, there is a rice mill. The lane touches the main road from kotipalli to Kakinada. In between the house of the appellant and the main road, there is a Mandal Parishad Primary School. The coffee hotel of PW. 2 is on the other side of the main road. The distance between the coffee hotel of PW. 2 and the houses of the deceased and the appellant is said to be about 50 to 60 yards. The offence is said to have taken place almost in front of the gate of the appellant, in the midst of the bushes, which have grown by the side of the lane. It has been elicited from PW. 1 that the coffee hotel of PW. 2 is lower than the level of the road Ex. P-17 depicts the existence of a big tree and some small trees in between the place of offence and the coffee hotel of PW. 2. PW. l admitted that one has to bend his head to enter the hotel of PW. 2. Under these circumstances, it is just impossible for any one inside the hotel to see what is happening at a distance of 50 to 60 yards on the other side of the road, that too, at 5. 30 in the morning. ( 11 ) THERE is a material inconsistency in the deposition of PW. 2 in the Court on the one hand, and his statement before the police, on the other hand. In the statement recorded by the police, PW. 2 stated that about 5-30 a. m. , on 29. 7. 30 in the morning. ( 11 ) THERE is a material inconsistency in the deposition of PW. 2 in the Court on the one hand, and his statement before the police, on the other hand. In the statement recorded by the police, PW. 2 stated that about 5-30 a. m. , on 29. 7. 2000, himself and his wife were preparing edibles, and in the mean while, he heard the deceased Lakshmi crying "amma chachipoyanu" and then he has seen towards her house. He stated that he has seen the appellant hitting the deceased in front of his house in the midst of the bushes. It is also stated that by the time he came running to that place, the appellant went inside his house with the crow bar in his hand. He is said to have raised voice saying that "laxmi (deceased) died", and thereafter, went to the house and woke up pw. 1. As against this, what he has stated before the Court is that he has only seen the appellant running away into his house with a crowbar on noticing him and bolting the grill doors. He gave up the theory of his having seen the appellant hitting the deceased with a crowbar. He does not speak to the factum of the presence of his wife. His wife was examined as a listed witness by the police, but was not examined before the Court. ( 12 ) PW. 3 is the tenant of the appellant. According to him, the wife of the appellant knocked their door at about 5-30 or 6-00 a. m. , calling his wife, and by the time he came out, he found the deceased lying on the ground in the bushes, opposite to the house of the appellant. In his statement before the police, this witness stated that he was informed by PW. 2 that the appellant had hit the deceased on the head, with a crowbar, and as a result, she died. It was suggested to him that he failed to pay the rents to the appellant, and a quarrel ensued between himself and the wife of the appellant in this regard. ( 13 ) THE evidence of PW. 8 is mostly in relation to the offence under Section 309 of IPC. It was suggested to him that he failed to pay the rents to the appellant, and a quarrel ensued between himself and the wife of the appellant in this regard. ( 13 ) THE evidence of PW. 8 is mostly in relation to the offence under Section 309 of IPC. According to her, she came out on hearing the voice of the wife of the appellant, and by the time she came out, she has seen the appellant with an injury in the abdomen, inflicted by himself with mo. 2. She stated that after she came out of the house of the appellant, herself and other persons saw the deceased with bleeding injuries near the bushes. She too stated that PW. 2 informed herself and others that the appellant beat the deceased with a crowbar. It was also suggested to her that there were arrears of rent payable to the appellant. The relevance of referring to these aspects is to emphasize the fact that pw. 2 did not state in his evidence that he has informed either PW. 3 or PW. 8 that he has seen the appellant inflicting injuries upon the deceased. The evidence of other witnesses does not improve the matter. ( 14 ) ONE important factor, which needs to be taken into account, is that the prosecution has collected samples of earth from the scene of offence, and sent the same for analysis to the Forensic Science laboratory, along with the clothes that were recovered from the body of the deceased. Ex. P. 19 is the Letter of Advice, while forwarding the material objects for analysis. Item No. 1 of the articles sent for analysis is the blood stained earth (MO. 9), Item No. 2 is the control earth (MO. 10), Item No. 3 is the blood stained crowbar (MO. 1) and Item nos. 4 and 5 are the saree and blouse of the deceased, respectively, (MOs. 3 and 4 ). The nature of examination required to be made on the said articles was as under: (1) Whether the blood found on all the above items except item No. 2 is human blood or not? If so the group of blood may be determined. (2) Whether the blood found on item nos. 1, 3, 4 and 5 is one and the same or not? If so the group of blood may be determined. (2) Whether the blood found on item nos. 1, 3, 4 and 5 is one and the same or not? (3) The blood found on item No. 3 used for the commission of offence and the blood detected on clothes of the deceased (item Nos. 4 and 5) are tallied or not. If so, please state the group. ( 15 ) ACTING on Ex. P. 19, the Regional forensic Science Laboratory had undertaken an analysis, and through its report dated 15. 11. 2000, marked as Ex. P-20, informed the following result: "blood detected on item Nos. l and 3 to 5. Item No. 2 is received as control for item no. 1. The origin of the blood detected on item Nos. 3 and 4 could only be determined and they are of "human origin" but their blood group could not be established". ( 16 ) FROM this, it is evident that the specific question as to whether the blood found on item No. 1, blood stained earth, the crowbar and the clothes on the body of the deceased was one and the same, almost stood answered in the negative. Therefore, the very occurrence of the offence at the alleged scene of offence becomes doubtful, and the suggestion put on behalf of the defence that the deceased died on the previous day gains credence. Added to this, it had emerged that the appellant had suffered a paralytic stroke, and one of his hands has become almost disfunctional. Under these circumstances, the benefit of doubt deserves to be extended to the appellant, and that the prosecution cannot be said to have linked the death of the deceased with the appellant, beyond any reasonable doubt. ( 17 ) NOW comes the offence under section 309 of IPC. It has come on record that the appellant had sustained knife injury in the abdomen. Several witnesses have spoken to the fact that they have seen the appellant with such injuries. Ex. P-14 is the wound certificate issued by Vaidya vidhana Parishad, in relation to the injuries on the body of the appellant. The following injuries were noticed: (1) Stab injury 2" x 1/2" x 1/2 "depth of muscle deep on the right hypochandium. (2) A stab injury 1 1/2" x 1/2" x 1/2 " over the right hypochandium above wound no. P-14 is the wound certificate issued by Vaidya vidhana Parishad, in relation to the injuries on the body of the appellant. The following injuries were noticed: (1) Stab injury 2" x 1/2" x 1/2 "depth of muscle deep on the right hypochandium. (2) A stab injury 1 1/2" x 1/2" x 1/2 " over the right hypochandium above wound no. l (3) A stab injury 1" x 1/2" x 1/2 " over right hypochandium below the wound No. 1. (4) A stab injury 1" x 1/2 "x 1/2 " over right hypochandium medial to wound No. 1. (5) A stab injury on the left hypochandium 1" x 1/2 " x 1/2 " ( 18 ) THE report discloses that all the wounds are fresh, and clots and bleeding were present. The appellant did not allege that any third person had caused the injuries upon him. He tried to explain that he sustained injuries when he fell from a platform. Fall from any platform does not result in injuries of the nature referred to above. Therefore, this Court finds that there existed cogent evidence to hold the appellant guilty of the offence under section 309 of IPC. ( 19 ) FOR the foregoing reasons, the criminal appeal is partly allowed, and the conviction and sentence imposed against the appellant for the offence under Section 302 of IPC is set aside. The conviction and sentence imposed against the appellant for the offence under Section 309 of IPC is confirmed. In case the appellant had served the sentence for the offence under section 309 of IPC, imposed by the trial court in SC No. 106 of 2001, he shall be set at liberty forthwith, unless he is required in relation to any other case.