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2006 DIGILAW 389 (AP)

Alakunta Srinivasulu v. State Of A. P.

2006-03-18

B.SESHASAYANA REDDY, D.S.R.VERMA

body2006
B. SESHASAYANA REDDY, J, J. ( 1 ) THIS criminal appeal is directed against the judgment dated 11-3-2004 passed in Sessions case No. 271 of 1999 on the file of the ii Additional Sessions Judge, Nellore, whereby the learned n Additional Sessions judge found accused Alakunta Srinivasulu guilty for the offences under Sections 302 and 324 I. P. C and convicted him accordingly and sentenced him to undergo imprisonment for life and pay a fine of Rs. 5,000/- in default to suffer simple imprisonment for six months for the offence under Section 302 i. P. C. and fine of Rs. 5,000/- in default to suffer S. I. for six months for the offence under Section 324 I. P. C. ( 2 ) APPELLANT is the sole accused in sessions Case No. 271 of 1999. He was put on trial for the offences under Sections 302 and 324 I. P. C. ( 3 ) THE prosecution case in brief is : accused-Alakunta Srinivasulu and pw-2-Alakunta China Pitchaiah are agnates and they owned agricultural lands adjacent to each other. Alakunta Seshamma (hereinafter referred to as the deceased for brevity) was the wife of PW-2-Alakunta china Pitchaiah. The accused was pestering the deceased to have illicit intimacy with him for over three years prior to the occurrence. PW-2, the husband of the deceased complained before PW-3-Vutukuru audi Murthy, a village elder, about the conduct of the accused. PW-3 called the accused and enquired him. The accused stated to have denied of such overtures. However, PW-3 advised the accused to stop his illicit intimacy with the deceased, if any. On 7-7-1998 at about 8-00 a. m. , the deceased accompanied by her daughter- pw-1-Alakunta Padmavathi went to the field for sowing paddy seedlings. While the deceased and PW-1 were attending work in the field, the accused, who owned a field nearby, armed with an axe went around his field and thereafter came to the field where PW-1 and the deceased were working, caught hold of the deceased by tuft of hair and hacked her with an axe on right side neck. When PW-1 intervened and requested the accused not to kill the deceased, the accused allegedly pushed her down and in that process the axe fell from his hands, then he picked up a knife from his waist and stabbed the deceased on chest, abdomen and back. When PW-1 intervened and requested the accused not to kill the deceased, the accused allegedly pushed her down and in that process the axe fell from his hands, then he picked up a knife from his waist and stabbed the deceased on chest, abdomen and back. When PW-1 resisted the accused from giving blows by holding the knife, she too received injuries on middle finger and ring finger of right hand, and right wrist. PWs. 4 to 6 who were attending work nearby field heard the cries of PW. l, reached the scene and witnessed the occurrence. When PWs. 4 to 6 tried to intervene, the accused allegedly warned them not to come nearer him. The cries of PW-1 drove the attention of u. Subrahmanyam-LW-7 and some other villagers and on seeing U. Subrahmanyam and PW-4, the accused ran away towards west. The deceased was shifted on a plastic wire cot from the field of Mahalaxmi rachabanda tree in the village. The husband of the deceased-PW-2 who was working in narayana College, Nellore, came to know of the death of the deceased and reached the village at 10-00 a. m. PW-1 accompanied by PW-4 went to Nellore Rural P. S. and lodged a report. PW-12 Inspector of Police reduced the report of PW-1 into writing and obtained her left hand thumb impression thereon. Ex. P-1 is the report of PW-1 scribed by PW-12. He instructed Head constable 801 (PW-11) to register a case on the basis of Ex. P-1. PW-11 received ex. P-1 report and registered a case in Crime no. 136 of 1998 under Section 302 I. P. C. and issued Ex. P-8-FIR. He sent PW-1 to government Head Quarters Hospital, Nellore for medical examination. PW-10-Dr. P. Sreedhar medically examined PW-1 on the same day at 2-20 p. m. , and found the following injuries on her person. (1) A lacerated wound over her right wrist region, 6x2 cm transversely placed. (2) A lacerated wound over right 3rd and 5th finger 1x1 cm. He opined that the injuries are simple in nature and issued Ex. P-7 wound certificate accordingly. PW-12 inspected the scene, collected blood stained earth, blood stained green grass and controlled earth (M. Os. 6 to 8) under the cover of Ex. P-2 scene of offence panchanama in the presence of pw-7 and another. He opined that the injuries are simple in nature and issued Ex. P-7 wound certificate accordingly. PW-12 inspected the scene, collected blood stained earth, blood stained green grass and controlled earth (M. Os. 6 to 8) under the cover of Ex. P-2 scene of offence panchanama in the presence of pw-7 and another. He also prepared a rough sketch of the scene, which has been exhibited as Ex. P-9. He got the scene of offence photographed through one Ganjula sri. Ex. P-10 (A) to (H) are the photographs along with the corresponding negatives. He conducted inquest over the dead body of the deceased in the presence of PW-7- bellamkonda Sankaraiah, and three others namely Bellamkonda Lakshmaiah, bellamkonda Ramanaiah and Baru Chitti babu near Mahalakshmamma pial, korivarikhandriga Village. Ex. P-3 is the inquest report. After the inquest, the dead body was sent through PW-9-A Vijaya mohan, P. C. No. 2153 of Nellore P. S. for post-mortem examination. PW-8-Dr. Y. Sanjeeva Rao held autopsy on the dead body of the deceased and issued Ex. P-6 post-mortem report opining that the deceased died of shock and hemorrhage due to multiple injuries between 24 to 30 hours prior to the commencement of post-mortem examination. He further opined that the injury No. 1 was possible by weapon like M. O. I, whereas the other injuries are possible by weapon like M. O. 2 and of the injuries, injury No. l proved to be fatal. On 13-7-1998 at about 9-00 a. m. , PW-12 arrested the accused at Dhaanalakshmipuram area and recovered M. Os. l and 2 in pursuance of his disclosure statement in the presence of PW-7 and one A. Eshwaraiah. Ex. P-4 is the admissible portion in the confessional statement of the accused and ex. P-5 is the seizure panchanama in respect of M. O. I axe and M. O. 2 sickle. PW-12 sent all the material objects to Regional forensic Science Laboratory, Vijayawada. Ex. P11 is the RFSL Report. After completing the investigation, he laid the charge-sheet before the IV Additional Judicial First Class magistrate, Nellore. ( 4 ) THE learned Magistrate took the charge-sheet on file as P. R. C. No. 45 of 1998 and committed the same to Sessions Division, nellore as the offence under Section 302 i. P. C. is exclusively triable by a Court of session. ( 4 ) THE learned Magistrate took the charge-sheet on file as P. R. C. No. 45 of 1998 and committed the same to Sessions Division, nellore as the offence under Section 302 i. P. C. is exclusively triable by a Court of session. ( 5 ) THE learned Sessions Judge took the case on file as Sessions Case No. 271 of 1999 and made over the same to the II additional Sessions Judge, Nellore for trial in accordance with law. ( 6 ) THE learned II Additional Sessions judge, Nellore, on hearing the prosecution and the accused, framed charges under sections 302 and 324 I. P. C. , read over and explained to the accused for which the accused pleaded not guilty and claimed to be tried. ( 7 ) TO bring home the guilt of the accused for the offences with which he stood charged, prosecution examined 12 witnesses and marked 11 documents and exhibited 8 material objects. ( 8 ) THE defence of the accused is that pw-4 being inimical to him instrumental in foisting the case against him. The further defence of the accused is that the occurrence might have taken place during night time while the deceased and PW-1 were sleeping in front of the house, and pw-1 and PW-2 having failed to trace the real culprits foisted the case against him at the instance of PW-4. On behalf of the defence, neither ocular nor documentary evidence was adduced. ( 9 ) THE learned II Additional Sessions judge, on considering the evidence brought on record and on hearing the prosecution and the accused, found the accused guilty for the offences under Sections 302 and 324 I. P. C. and convicted him accordingly and sentenced him as detailed above by judgment dated 11-3-2004. Hence, this criminal appeal by the accused. ( 10 ) HEARD Smt. K. Sesharajyam, learned Counsel representing Mr. K. Chaitanya, learned Counsel appearing for the appellant-accused and learned Public prosecutor appearing for the State. ( 11 ) LEARNED Counsel for the appellant- accused submits that the evidence of PW-1, pws. 4 to 6 consists of many inconsistencies, infirmities and improbabilities and quite contradictory to the medical evidence and thus their evidence is untrustworthy. It is also submitted by the learned Counsel that the trial Court failed to note the fact that pws. ( 11 ) LEARNED Counsel for the appellant- accused submits that the evidence of PW-1, pws. 4 to 6 consists of many inconsistencies, infirmities and improbabilities and quite contradictory to the medical evidence and thus their evidence is untrustworthy. It is also submitted by the learned Counsel that the trial Court failed to note the fact that pws. 2 to 4 belonged to one group and the accused belonged to another group and therefore, great care and circumspection is required in screening the evidence of PWs. 2 to 4. Learned Counsel would further contend that there is abnormal delay in presenting the report before the Police as well as sending the printed FIR to the area magistrate, after registering the crime, and the said delay has not been properly explained by the prosecution and thus there is every reason to believe that Ex. P-1 - report is the outcome of due deliberations with PW-4 who is inimical to the accused, suppressing the true version of the occurrence. A further submission has been made that non-seizure of blood stained clothes of PW-1 as well as the clothes of pw-4 is fatal to the prosecution. A serious contention has been advanced by the learned counsel is that the testimony of PW-1 is not supported by the medical evidence and the same is sufficient to infer that PW-1 is not a truthful witness. In support of the submissions, the learned Counsel placed reliance on the decisions of Supreme Court in State of Punjab v. Daljit Singh, (2004) 10 SCC 141 and Khima Vikamshi v. State of Gujarat, (2003) 9 SCC 420 . ( 12 ) THE learned Public Prosecutor would contend that PW-1 is an injured witness and even if there are any minor infirmities in her evidence, they are insignificant and deserve to be ignored. He would further contend that evidence of pw-1 is fully corroborated by the evidence of PWs. 4 to 6 whose presence is quite natural since they owned lands closed by the scene of occurrence. ( 13 ) WHILE evaluating the evidence of a witness, the proper approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. 4 to 6 whose presence is quite natural since they owned lands closed by the scene of occurrence. ( 13 ) WHILE evaluating the evidence of a witness, the proper approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view of the deficiencies, draw backs and infirmities pointed out as a whole and evaluate them to find out whether it is against the general tenor of evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies and trivial matters not touching the core of the case, hypertechnical approach in appreciation of the evidence should be avoided vide the decision of Supreme Court in State of U. P. v. M. K. Anthony, AIR 1985 SC 48 . ( 14 ) THE prosecution examined PW-1, pws. 4 to 6 as an eye-witnesses to the occurrence. PW-1 is no other than the daughter of the deceased. She testifies that on the date of occurrence, she along with her mother-the deceased went to the field for sowing paddy seedlings and while they were attending the work, the accused came armed with an axe, caught hold tuft of the deceased, hacked her on the right side neck and thereby deceased fell down. She further testifies that when she tried to intervene, the accused pushed her down and in the said process the axe also fell from the hands of the accused and thereupon the accused picked up a knife from his waist and stabbed the deceased on her abdomen and back. It is also her evidence that when she caught hold of the knife, the accused snatched it from her grip and thereby she sustained injury on middle and ring fingers and right wrist. ( 15 ) PW-4 owns the land close by the scene. PWs. 5 and 6 are his daughters-in- law. On the date of occurrence PWs. 4 to 6 were attending work in their field. On hearing the cries of PW-1, they rushed to the scene arid witnessed the occurrence. Ex. ( 15 ) PW-4 owns the land close by the scene. PWs. 5 and 6 are his daughters-in- law. On the date of occurrence PWs. 4 to 6 were attending work in their field. On hearing the cries of PW-1, they rushed to the scene arid witnessed the occurrence. Ex. P-1 is the report, which forms the basis for registering a case in Crime No. 138 of 1998 for the offences under Sections 302 and 324 I. P. C. The names of PWs. 4 to 6 find place in Ex. P-1 report as eye-witnesses to the occurrence. Soon after registering the case, PW-1 was sent to Hospital for treatment. PW-10 medically examined PW-1 on 7-7-1998 at 2-20 p. m. , and issued Ex. P-7 wound certificate. The fact that PW-1 sustained injuries in the occurrence has been well established. The testimony of PW-1 is corroborated by the evidence of PWs. 4 to 6 in all material aspect. ( 16 ) LEARNED Counsel appearing for the appellant-accused submits that PW-1 cannot be categorized as truthful witness, since her ocular evidence is contradictory to the medical evidence. Learned Counsel drew our attention to the evidence of PW-10 who medically examined PW-1 and issued ex. P-7 would certificate. It is stated by pw-10 that the injuries found on PW-1 could not be possible by weapon like M. O. 2 and thus it could be possible by means of butt end of an axe like M. O. I. Learned counsel by referring the evidence of PW-1 tries to convince us that the ocular testimony of PW-1 that the accused beat her with m. O. 2-Sickle, is unbelievable. The same point has been urged before the trial Court and the trial Court rejected the said contention on the ground that the discrepancies with regard to the weapon used in assaulting pw-1 cannot be given much importance in the facts and circumstances of the case. We deem it appropriate to refer Para-18 of the judgment and it is thus :"in the evidence, PW-1 stated that the accused inflicted injuries to her with m. O. 2. Dr. P. Sridhar (PW-10) having stated that he examined PW-1, clarified that M. O. 2 would not cause the injuries mentioned by him because it happened to be a sharp edged weapon. According to him, the injuries to PW-1 would have been caused by a blunt object. Dr. P. Sridhar (PW-10) having stated that he examined PW-1, clarified that M. O. 2 would not cause the injuries mentioned by him because it happened to be a sharp edged weapon. According to him, the injuries to PW-1 would have been caused by a blunt object. He further clarified that such injuries are possible by means of a butt end of an axe like the weapon M. O. I which is blunt. It is in the evidence of pws. 1, 4 to 6 that the accused dealt a blow with sharp edged portion of M. O. I - axe to deceased, in the course of struggle between himself and PW-1, the axe slipped down, he picked out M. O. 2-sickle from his waist and caused several injuries to the deceased. PW-1 in her evidence explained that sickle is called as knife . When she was grilled during the course of cross-examination, she stated that she was in a sorrowful mood with bleeding injuries, weeping and worrying at the time of incident and therefore she did not observe the minute details. When the mother of PW-1 was axed to death and she sustained severe bleeding injuries, her state of mind can be visualized and assessed. " ( 17 ) THE sequence of events narrated by PW-1 are the accused came armed with an axe and dealt a blow on the neck of the deceased, and thereupon, she intervened, the accused pushed her and in the process, the axe fell from his hand and later the accused took out a knife from his waist and started assaulting the deceased. It is the further case of PW-1 that she caught hold of the knife by her grip, the accused got the knife released and in the said process, she sustained injury on the 3rd and 4th fingers and right writ region. The sequence of events are so quick and therefore, it is natural for PW-1 to say that as to which of the two weapons used by the accused caused injuries on her fingers and wrist, when she went in rescue of her mother-deceased. The trial court by giving cogent and convincing reasons rejected the contention of the appellant-accused. We do not see any reason to differ with the finding recorded by the trial Court on this aspect. The trial court by giving cogent and convincing reasons rejected the contention of the appellant-accused. We do not see any reason to differ with the finding recorded by the trial Court on this aspect. ( 18 ) LEARNED Counsel submits that the presence of semi-digested food indicates the assault on the deceased soon after taking food and in which case the version of PW-1 that the occurrence took place in the field at about 8-00 a. m. , could not be believed. In support of the submission, learned Counsel placed reliance on a decision of the Supreme Court in State of Punjab v. Daljit Singh, (supra) cited decision. In the cited decision, the version was that the two deceased had dinner soon before the occurrence. Whereas the Doctor who conducted post-mortem examination, in his report and evidence, clearly stated that 1 oz of semi-digested food was found in the stomach of deceased Harbinder Singh while 3 oz of semi-digested food was found in the stomach of other deceased harbans Singh. According to the doctor, if a person takes a normal meal, it would have at least 10 oz of semi-digested food in the stomach if such a person is killed within 1 hour after taking the food. If that be so, the presence of 1 oz and 3 oz of semi- digested food shows that the death of the deceased was much later than what the prosecution projected as the time of death. Reverting to the facts of the case on hand, nothing is elicited from the prosecution witnesses in the cross-examination that the deceased did not take any food before proceeding to the field. Added to that it is quite common for the agriculturist to eat something before going to the field to attend work. Therefore, the presence of three ounces of undigested food in the stomach of the deceased does not in any way improbablise the version of the incident narrated by PW-1. ( 19 ) IT is nextly contended by the learned Counsel that there is abnormal delay in lodging the report as well as sending the printed copy of the F. I. R. after registering the crime to the concerned area Magistrate and since the prosecution failed to give any proper explanation, it creates any amount of suspicion with regard to truthfulness of the occurrence narrated in Ex. P-1 report. P-1 report. PW-2 is the husband of the deceased. By the time the incidence occurred, he was not in the village having gone to Nellore to attend masonry work. On coming to know of the occurrence, he rushed to the village and found the dead body of the deceased lying on the cot under Mahlakshmi rachabanda Tree. It is quite natural for pw-1 to wait till the return of her father pw-2 before presenting any report before the police. It is the evidence of PW-1 that after his father s returned, he went to the police station accompanied by PW-4. The distance between the police station and the village as elicited from PW-12 in the cross- examination is about 7 kms. PW-12 stated that PW-1 came to police station with bleeding injuries on her right hand and lodged a report orally, which came to be reduced by him into writing. It is also stated by him that soon after reducing her report into writing, he referred her to the hospital for treatment. PW-10 is the doctor who medically examined PW-1 and issued wound certificate Ex. P-7. It is manifest from Ex. P-7 that PW-7 examined pw-1 at 2-20 p. m. In these circumstances it cannot be said that there is any delay in presenting the report before the police. With regard to time of receiving printed fir by the concerned Magistrate, even if there is any delay, that itself does not render whole of the prosecution case doubtful. Section 157 provides sending a copy of FIR to the area Magistrate. This provision is designated to keep the Magistrate informed of the investigation of such cognizable offence, so as to enable to control the investigation and if necessary to give appropriate direction under Section 159 of the Code of Criminal Procedure. But where fir is shown to have actually been recorded without delay and investigation started on the basis of FIR, the delay in sending the copy of the report to the Magistrate cannot be itself justify the conclusion that the investigation was tainted and the prosecution insupportable vide the decision of the supreme Court in Subhash Chand Rai v. State of Bihar, 2001 SCC (Crl.) 1009. ( 20 ) MUCH argument has been advanced by the learned Counsel that PWs. 4 to 6 are inimical to the accused and therefore no implicit reliance can be placed on them. ( 20 ) MUCH argument has been advanced by the learned Counsel that PWs. 4 to 6 are inimical to the accused and therefore no implicit reliance can be placed on them. We have gone through the evidence of pws. 4 to 6. PWs. 5 and 6 are daughters-in- law of PW-4. They have no enmity with the accused. A suggestion has been made to PW-4 in the cross-examination that there were disputes between him and the accused prior to the death of deceased. The said suggestion has been flatly denied. As can be seen from the cross-examination of PW- 4, there was some trivial altercation between him and the accused on the ground that ram of PW-4 spoiled the crop in the lands of the accused. The said incident took place about three months prior to the death of the deceased. No prudent and reasonable person could make such dispute as ground to implicate the accused for the offence under section 302 I. P. C. ( 21 ) IT is also contended by the learned counsel that the very absence of trial of marks of blood from the field to the mahalakshmi Rachabanda Tree creates any amount of suspicion with regard to the occurrence of the incident in the field. We do not see any substance in the contention of the learned Counsel, since it is not the case of the prosecution witnesses that there was splashing of blood while they carried the dead body from the field to mahalakshmi Rachabanda Tree. Yet another submission has been made by the learned counsel that failure of seizure of blood stained clothes of PW-4 who is said to have assisted in shifting the dead body from the field to the village creates any amount of suspicion with regard to the presence of pw-4 at the scene. ( 22 ) IN support of the submission, learned Counsel placed reliance on the khima Vikamshi v. State of Gujarat, cited decision. The version of the prosecution in the cited case was that PW-4 therein actually fell on the body of the victim to prevent further assault and later on she and PW-5 lifted the victim and put him in a bullock cart and travelled with the victim right through upto the time when the victim breathed his last. The version of the prosecution in the cited case was that PW-4 therein actually fell on the body of the victim to prevent further assault and later on she and PW-5 lifted the victim and put him in a bullock cart and travelled with the victim right through upto the time when the victim breathed his last. In those circumstances, the Supreme court observed as follows :"in such circumstances, we find it difficult that if really PWs. 4 and 5 were at the place of the incident, as stated by the prosecution, then their clothes would not have been blood stained. Failure on the part of the investigating agency to recovery any such bloodstained clothes from PWs. 4 and 5 creates serious doubts in our minds as to the presence of these witnesses at the time of the incident in question. " ( 23 ) CORNING to the facts of the case on hand, it is not the version of PW-4 that his clothes smeared with blood while shifting the dead body from the field to Mahalakshmi rachabanda tree. Therefore, the question of ceasing the clothes of PW-4 does not arise. ( 24 ) THE evidence of PW-1 is cogent and convincing and it is fully corroborated by the evidence of PWs. 4 to 6. The trial court considered the evidence brought on record in right perspective and found the appellant-accused guilty for the offence under Section 302 I. P. C. We see no reason to interfere with the conviction and sentence of the appellant-accused for the offences under Sections 302 and 324 I. P. C. ( 25 ) ACCORDINGLY, the appeal fails and is hereby dismissed confirming the conviction of the appellant-accused for the offences under Sections 302 and 324 I. P. C. passed in Sessions Case No. 271 of 1999 on the file of the II Additional Sessions Judge, Nellore.