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2007 DIGILAW 360 (AP)

BUSSA VENKATESWARLU v. STATE OF A. P.

2007-04-03

A.GOPAL REDDY, K.C.BHANU

body2007
K. C. BHANU, J. ( 1 ) THE sole accused in S. C. No. 480 of 2003 on the file of II Additional Sessions Judge, nalgonda, at Suryapet filed this appeal under section 374 (2) of Criminal Procedure code 1973 challenging the conviction imposed on him under Section 302 IPC and sentence of imprisonment for life and to pay a fine of rs. 500/- in default, to suffer rigorous imprisonment forone month, through judgment dated 27-10-2004. ( 2 ) THE case of the prosecution in brief is as follows: The accused, deceased and all the material prosecution witnesses are residents of jarripothulagudem. P. W's. 1 and 2 are the brothers of the deceased. P. W. 3 is the wife of the deceased. P. W's. 4 to 7 are chance witnesses to the occurrence. On 18th March, 2003 at 7. 30 p. m. , while the deceased was going to attend toddy work with Musthad which is use for toddy work. One sickle is inserted in the Musthad while he was going the accused at thetime came in opposite direction and took the sickle from the Musthad of the deceased and stabbed the deceased in stomach. P. W's 4 and 7 witnessed the same and made huge cries. Upon hearing of same p. W. 1 went to the spot forthwith and witness that the deceased was in unconscious and fall in pool of blood. Public gathered at the time of incident along with P. W. 4, P. W. 7 and P. W. 8. P. W. 1 enquired with P. W's 4 and 7 about the matter and, P. W. 1 came to know that the accused stabbed the deceased with sickle. Immediately they shifted the deceased to kodad hospital, as thedeceased was in serious condition. They shifted the deceased from kodad hospital to Khammam hospital, there after examination, declared as deceased already died. Next day of the incident morning at about 9. 00 a. m. P. W. 1 gave a complaint to p. S. Chilkoor. Ex. P-1 is the complaint. On 19-03-2003 at about /-00 a. m. P. W. 13, S. I of police, Chilukur P. S. received complaintf rom p. W. 1 and registered it as Cr. No. 21/03 for the offence punishable U/s. 302 I. P. C. Ex-P-7 is the F. I. R. P. W. 14, C. I. of Police, Kodad after receiving the information in Cr. On 19-03-2003 at about /-00 a. m. P. W. 13, S. I of police, Chilukur P. S. received complaintf rom p. W. 1 and registered it as Cr. No. 21/03 for the offence punishable U/s. 302 I. P. C. Ex-P-7 is the F. I. R. P. W. 14, C. I. of Police, Kodad after receiving the information in Cr. No. 21/2003, he visited the Jerripothulagudem and examined the witness P. W's. 1 to 8. P. W. 14 conducted inquest over the dead body of the deceased before the presence of P. W's. 9 and 10. He sent the dead body for Post-Mortem examination, and visited the scene of offence and prepared the rough sketch of the scene of offence in the presence of P. W's. 9 and 10. Ex. P-3 is the scene of offence Panchanama. He collected the biood stained earth and controlled earth on the spot, and sent to FSL, hyderabad. On 21-3-2003 on reliable information, P. W. 14 visited the jarripothuiagudem and apprehended the accused at the house of his brother-in-law. The accused confessed in the presence of p. W. 11 and another. In pursuance of the confession P. W. 14 seized M. O. 1 Knife. Thereafter accused are sent for remand. P. W. 12, Medical Officer, Government community Health Centre, Kodad received requisition from P. W. 14 C. I of Policeforconduct autopsy. P. W. 12 conducted autopsy over the dead body of the deceased and opined that the cause of death is due to cardio respiratory arrest due to Haemoperatoriurn due to blunt injury abdomen. Ex. P-6 is the Post-Mortem examination report. After receiving the P. M. E. report and FSL report P. W. 14 filed the charge sheet. ( 3 ) THE charge leveled against the accused is that on 18-3-2003 at about 7. Ex. P-6 is the Post-Mortem examination report. After receiving the P. M. E. report and FSL report P. W. 14 filed the charge sheet. ( 3 ) THE charge leveled against the accused is that on 18-3-2003 at about 7. 30 p. m. when the deceased Gandu Saidulu was going towards toddy trees for tapping, the accused and one Ramshetti Narayana (P. W. 4) came in the opposite direction to the deceased and when all of them reached the kirana shop of one Venkateswarlu (P. W. 8), the accused snatched the knife from the waist of deceased and tried to attack on Kandukuri Nagaiah (P. W. 5) and on seeing the same, Kandukuri nagaiah escaped from the scene and when the deceased asked him to return the knife, he picked up a quarrel and stabbed him with the knife on the abdomen as a result of which he fell down and died. When the charge is read over and explained, the accused pleaded not guilty and claimed for trial. ( 4 ) TO substantiate its case, the prosecution examined 14 witnesses and marked 7 documents besides case property M. O. 1 knife. On behalf of defence, on oral or documentary evidence was adduced. The trial Court accepting the solitary evidence of P. W. 4 supported by circumstantial evidence of P. Ws. 6 and 7 found the accused guilty of the offence under Section 302 IPC and accordingly convicted and sentenced him as indicated above. Challenging the same, the present appeal is filed. ( 5 ) NOW the point for consideration is: whether the judgment of the trial court is correct and proper and whether the prosecution proved its case beyond all reasonable doubt for the offence under Section 302 IPC? ( 6 ) LEARNED counsel appearing for the appellant contended that P. Ws. 1 and 3 are not eyewitnesses and that the presence of p. W. 4 at the scene of occurrence is doubtful. There are so many discrepancies with regard to the presence of P. W. 4, that it is highly improbable to believe that the deceased was going at about 7. 30 p. m. for trapping the toddy trees, that there are absolutely no motive for the accused to attack the deceased, that the bloodstained earth and controlled earth along with knife though were sent to the Forensic science Laboratory, the report was not marked. 30 p. m. for trapping the toddy trees, that there are absolutely no motive for the accused to attack the deceased, that the bloodstained earth and controlled earth along with knife though were sent to the Forensic science Laboratory, the report was not marked. It is contended that there was delay of more than 12 hours in lodging the report, which has not been properly explained and that the medical evidence would go to show that the deceased would appeartohavedied in between 4 and 6 a. m. on 19-3-2003 thereby it demolishes the case of the prosecution and therefore, the ocular testimony cannot be relied upon and that the accused was not residing in that village for the last 20 years and therefore, she pleaded to set aside the conviction and sentence imposed by the trial court. ( 7 ) ON the other hand, the learned Additional public Prosecutor contened that the presence of P. W. 4 has been specifically mentioned in ex. P-1 complaint, that the deceased did not die immediately and therefore, the conduct of the relatives is to take him to the hospital so that the deceased may survive and therefore, at the first instance the deceased was taken to a private hospital at Kodad and thereafter to government Hospital at Khammam and after the doctors declared him dead, the body was taken to the village and by that time, it was about 2. 00 or 3. 00 a. m. and therefore, at that odd hour it may not be possible for the witnesses to rush to the police station which is located at a distance of 10 k. ms. from the village and therefore, on the next day morning at early hours P. W. 1 lodged a report. Thus the delay has been properly explained and that the evidence of P. W. 4 coupled with the evidence of P. Ws. 6 and 7 would clearly go to show that it is the accused who caused the death of the deceased and that non-filing of F. S. L. report would not be a fatal so as to acquit the accused and after elaborate consideration of evidence on record, the trial Court rightly found the accused guilty for the offence charged. Therefore, he contends that there are no grounds to interfere with the judgment of the trial Court. ( 8 ) P. WS. Therefore, he contends that there are no grounds to interfere with the judgment of the trial Court. ( 8 ) P. WS. 9, 10 and 14 speak about the scene of occurrence, seizure of bloodstained earth and control earth. Ex. P-2 is the scene of occurrence panchanama where in it is clearly mentioned that the scene of occurrence is in front of the kirana shop of Venkateshwarlu, who was examined as P. W. 8. Ex. P-3 is the sketch map of scene of offence, which would go to show that the scene of occurrence is in front of house of P. W. 8. Practically, their evidence remained unchallenged. Except suggesting that those documents were prepared in the police station, nothing has been elicited to discard their testimony. ( 9 ) P. W. 14 is the Circle Inspector of Police, who conducted inquest on the dead body of the deceased on 19-3-2003 from 9. 00 a. m. to 11. 00 a. m. Ex. P-4 is the inquest report, wherein the inquest mediators opined that the deceased died as a result of intestines came out. P. W. 12 is the Doctor, who conducted autopsy on the dead body of the deceased on 19-3-2003 at 11. 30 a. m. and found the following ante-mortem injuries: "1. Incised wound 2" x 1" x 3" on right side of the abdomen 2" lateral to umbilicus. 2. Haemotoma 3" x 4" on small intestines. " he opined that the cause of death of the deceased was due to Cardio-respiratory arrest due to haemoparetorium due to blunt injury on abdomen. According to him, the age of the injury is about 6 to 8 hours prior to his postmortem examination. He did not state that the injury is sufficient to cause death so also it is not elicited that the injuries 1 and 2 can be possible by hacking or stabbing with a weapon like M. O. 1. Though he stated that the age of injury is 6 to 8 hours, as seen from Ex. P-6 post-mortem report, the opinion of the doctor is clear that the approximate time of death is about 6 to 8 hours prior to post-mortem examination. Therefore, the recitals in Ex. P-4 and P-6 and the evidence of P. W. 12 would go to show that the death of the deceased is homicidal. P-6 post-mortem report, the opinion of the doctor is clear that the approximate time of death is about 6 to 8 hours prior to post-mortem examination. Therefore, the recitals in Ex. P-4 and P-6 and the evidence of P. W. 12 would go to show that the death of the deceased is homicidal. ( 10 ) NOW it is to be seen that whether the accused is the assailant or not. There is evidence on record, which would go to show that the accused was not residing in the jerripothulagudem village. The villagers sent him out from the village on the ground that he was practicing sorcery, but he was in the habit of visiting the village now and then. P. Ws. 1 and 2 are the brothers and P. W. 3 is the wife of the deceased. Admittedly, the house of P. W. 1 is located at a distance of 20 metres from the scene of offence. The house of P. W. 2 is located by the side of house of P. W. 1, whereas, the house of deceased is located by the side of P. W. 2. The kirana shop of P. W. 8 is situated at Eastern side of the house of P. W. 4. P. Ws. 1 to 3 rushed to the scene of occurrence on hearing the cries of P. W. 4 and found the deceased in a pool of blood. Though it is elicited in the cross-examination that these witnesses went to the scene of occurrence on hearing the cries of P. W. 4, but it has not been spoken to when they were examined by the police during the course of investigation. No doubt, it is an omission, but at the same time, when P. W. 1 lodged Ex. P-1. report on 19-3-2003 at 7. 00 a. m. before P. W. 13, the said case is registered. So the earliest version of the incident has been clearly stated in Ex. P-13 wherein the presence of P. W. 4 has been specifically mentioned and he is the person, who raised cries and on hearing the cries, P. W. 1 rushed to the place of occurrence. Therefore, the omission as pointed out by the learned counsel forthe appellant in thecontext of the case is insignificance in view of the fact that his presence was spoken to in the First information Report Ex. P-1. Therefore, the omission as pointed out by the learned counsel forthe appellant in thecontext of the case is insignificance in view of the fact that his presence was spoken to in the First information Report Ex. P-1. If the presence of p. W. 4 is established beyond all reasonable doubt, there is no difficulty in accepting his evidence. According to him, when he was present in front of the shop of P. W. 8, the deceased was going on the same way to attend the toddy work with musthad. At that time, the accused came in the opposite direction and snatched the sickle from the musthad of the deceased and was chasing chilkoori Nagaiah, P. W. 5 to stab him. Then the deceased asked the accused as to why he snatched his sickle from his musthad, on that, the accused got angry and stabbed the deceased with the said sickle on his stomach, as a result of which, the deceased fell down. It is elicited in his cross-examination that the shop of P. W. 8 is located at the eastern side of his house and in between his house and the shop of P. W. 8, only one house is located. He has no grouse or enmity against the accused so as to implicate him falsely. Furthermore, his presence was spoken to by P. Ws. 6 and 7, who rushed to the scene of occurrence immediately after hearing his cries. P. Ws. 6 and 7 went to the kirana shop of P. W. 8 and on hearing the cries of P. W. 4, they saw the deceased falling on the ground and the accused was standing beside him with a sickle in his hands. Therefore, the evidence is very clear that the intestines of the deceased came out from the stomach. When they reached to the scene of occurrence, the accused was running away from the scene of occurrence. P. Ws. 6 and 7 are not related to the deceased so as to implicate the accused falsely. So also nothing has been elicited in their cross-examination which suggest that they have got some enmity or grouse against the accused so as to implicate him falsely leaving the real assailants. Therefore, from the evidence of P. Ws. P. Ws. 6 and 7 are not related to the deceased so as to implicate the accused falsely. So also nothing has been elicited in their cross-examination which suggest that they have got some enmity or grouse against the accused so as to implicate him falsely leaving the real assailants. Therefore, from the evidence of P. Ws. 6 and 7, it is established beyond all reasonable doubt that by the time they reached to the scene of offence the deceased was found lying on the ground with bleeding injury on the abdomen and the accused was holding a sickle in his hands. Therefore, their evidence coupled with the evidence of P. W. 4 would clearly go to show that it is the accused who stabbed the deceased with a sickle when the deceased objected the accused for snatching the sickle from his musthad. therefore, the presence of p. W. 4 at the relevant point of time of incident is established beyond all reasonable doubt. Though it is elicited in the cross-examination that there was no electricity or illumination of lights at the scene of occurrence, but at the same time, the incident has taken place in the month of March and the accused is a known person to P. Ws. 4, 6 and 7. Since the villagers are accustomed to darkness, it is not much difficult for them to identify a known person even in the slightest illumination of light. In view of the fact that the shop of P. W. 8 is a kirana shop, there must be some light in the shop and in that illumination of light, the possibility of identifying the accused as the assailant of the deceased can be possible. ( 11 ) LEARNED counsel appearing for the appellant contended that there was delay of more than 12 hours in reporting the matter to the police and the time taken by the prosecution is only to implicate the accused falsely. For that, she relied upon a decision reported in rajeevan v. State of Kerala 2003 SCC (Crl.) 751 wherein it was held: "the delay of 12 hours in filing FIR in the instant case irrespective of the fact that the police station is situated only at a distance of 100 metres from the spot of incident is another factor sufficient to doubt the genuineness of the FIR. Moreover, the prosecution did not satisfactorily explain the delayed lodging of the FIR with the Magistrate. " That is a case where the police station is police station is located at a distance of 12 k. m. s. from the village. Therefore, at that odd hour, it may not be possible for P. Ws. 1 to 3 to rush to the hospital to lodge a complaint. So, naturally, they have to go to the police station after daybreak. Therefore, in such view of the matter, the delay cannot be said to be fatal to the case of the prosecution. In such circumstances, the anxiety of the relatives is to take the injured to the hospital so as to save him by giving some treatment. ( 12 ) LEARNED counsel for appellant relied upon a decision of the Apex Court reported in shankar/al v. State of Rajasthar 2005 SCC (Crl.) 579 for the proposition that when a case is based upon testimony of solitary evidence, conviction cannot be maintained. In the said decision the apex Court held as under: ". . . . In this background if we appreciate the evidence of P. W. 6 we notice the fact that he is purely a chance witness whose presence at the place of the incident is highly doubtful. His conduct too seems to be unnatural in not informing anyone else in the village until he met Khyali ram at the village square. " But in the case on hand, P. W. 4 cannot be termed as a chance witness in view of the fact that his house is located very close to the scene of occurrence. No-doubt, learned counsel for the appellant contended that the house of p. W. 4 has not been shown in Ex. P-3 rough sketch and therefore, his evidence has to be disbelieved. But P. W. 4 categorically stated that his house is separated by another house from the scene of occurrence and the said fact has not been denied or disputed in the cross-examination. Therefore, from the evidence of p. W. 4 it is clear that he was present at the shop of P. W. 8 and his presence was not only spoken to by P. Ws. 1 to 3 but also P. Ws. 6, 7 and 8. Furthermore, his name was found in the first Information Report as the person who witnessed the incident. 1 to 3 but also P. Ws. 6, 7 and 8. Furthermore, his name was found in the first Information Report as the person who witnessed the incident. Therefore, the decision relied upon by the counsel for the appellant has no application to the facts of the case on hand. ( 13 ) LEARNED counsel relied upon a decision of the Apex Court reported in Dinesh v. State of Haryana AIR 2002 SC 2374 for the proposition that when there is inconsistency between the eye-witnesses of the incident and the medical evidence, the conviction of the accused is liable to be set aside. In the said decision, the Apex Court at para 12 held as under: 12. . . . . . . . The conclusion which follows from the absence of the testimony of jagdish being corroborated by medical evidence is that either he did not witness the occurrence orthe occurrence did not take place in the manner as narrated by this witness. . . . " if there is any inconsistency between the ocular testimony and the medical evidence, unless the medical evidence clearly belies the case of the prosecution, ocular testimony cannot be discarded. Now, it is to be seen whether there is any inconsistency between the oculartestimony and the medical evidence. The basis for the argument of the learned counsel for the appellant is the evidence of p. W. 12, who stated that the age of the injury is about 6 to 8 hours prior to his postmortem examination. If that is taken into consideration, the attack must have been taken place in between 3. 30 a. m. and 5. 30 a. m. on 19-3-2003. But in Ex. P-6 postmortem report it is clearly stated that the time of death of the deceased is around 6 to8 hours prior to the post-mortem examination. So it is an inadvertent mistake on the part of P. W. 12 in saying 6 to 8 hou rs as the age of the injuries. Therefore, there is no inconsistency between the ocular testimony and medical evidence. Even otherwise, the medical evidence is opinion evidence, which gives a possibility or approximate time of death, but not accurate time of death. ( 14 ) LEARNED counsel forthe appellant also placed a strong reliance on a decision in State of Karnataka v. Ramappa Aparai Chast 2000 Crl. L. J. 599. Even otherwise, the medical evidence is opinion evidence, which gives a possibility or approximate time of death, but not accurate time of death. ( 14 ) LEARNED counsel forthe appellant also placed a strong reliance on a decision in State of Karnataka v. Ramappa Aparai Chast 2000 Crl. L. J. 599. In the said decision, at para 7 the Apex Court held as under: 7. . . . . . Applying the test we take note of the fat that one strong link or even two or three of them would not suffice to justify a conviction if the most crucial link is missing. That in our considered view of the result of the Chemical Analysis report not having been produced in this case because we are unable to hold that either the clothes or the axe was bloodstained. On a strict and proper application of the law therefore accepting the remaining evidence the accused would still be entitled to the benefit of doubt. " no-doubt, their Lordships have taken a view that non-filing of chemical analysis report is a strong link in chain of circumstances and there fore, a benefit of doubt was given. That is a case where the case rests upon the circumstantial evidence. No-doubt, the Public prosecutor ought to have marked the F. S. L. report to fix the scene of occu rrence as well as the weapon of occurrence used in the commission of offence. Insofar as the first aspect of the case is concerned, it is not denied or disputed by the accused that no incident as such has taken place in front of the shop of P. W. 8. The second aspect is that the weapon of offence is the weapon used in the commission of offence to show that it contained human blood or the blood group of the deceased. The doctor also did not state in ex. P-6 that the weapon like M. O. 1 would cause injuries 1 and 2. Even assuming for a moment that these circumstances cannot be relied upon and are excluded from consideration in view of the fact that the doctor has not stated that M. O. 1 is the weapon used by the assailant and that the F. S. L. report is not brought on record as an exhibit, still there remains the evidence of P. W. 4 coupled with the evidence of P. Ws. 6 and 7. From the evidence of P. W. 4 coupled with the evidence of P. Ws. 6 and 7 it is clear that it is the accused who caused injury to the deceased. Therefore, in the circumstances of the case, non-marking of f. S. L. report by itself is not a ground to throw away the entire prosecution case so as to acquit the accused. ( 15 ) FROM the above evidence it is clearthat it is the accused, who caused injury to the deceased and he is the assailant of the deceased. There is no evidence on record to show that the accused had entertained any grouse or enmity against the deceased in view of any disputes in between the accused and the deceased. The meeting of the deceased by the accused is a chance one. In fact it is brought on evidence that the accused wanted to stab P. W. 5 but not the deceased. With an intention to stab P. W. 5, the accused took out the sickle from the musthad of the deceased, for which the deceased objected. Then he stabbed the deceased. Therefore, in such a circumstance, the case falls under exception 4 of Section 300 IPC, which says that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Explanation to exception 4 also says that it is immaterial in such cases which party offers the provocation or commits the first assault. Therefore, the accused has to be convicted under Section 304 Part-II IPC in view of the fact that he has no intention to kill the deceased. He has not taken any undue advantage of situation by repeating the blows or stabbing the deceased. He caused only one injury by stabbing on abdomen which resulted in causing injuries to the intestines. Therefore, the conviction in causing injuries to the intestines. Therefore, the conviction and sentence of the appellant-accused for the offence under Section 302 IPC is not sustainable and is accordingly set aside. But, we find the accused guilty under Section 304 part-II IPC and sentence him to undergo rigorous imprisonmentforfive years, however, the fine imposed by thetrial Court is maintained. Therefore, the conviction in causing injuries to the intestines. Therefore, the conviction and sentence of the appellant-accused for the offence under Section 302 IPC is not sustainable and is accordingly set aside. But, we find the accused guilty under Section 304 part-II IPC and sentence him to undergo rigorous imprisonmentforfive years, however, the fine imposed by thetrial Court is maintained. The remand period during trial and after conviction shall be given set off under section 428 Cr. P. C. ( 16 ) THE appeal is allowed in part as indicated above. .