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2009 DIGILAW 235 (AP)

Jelli Chinna Buchaiah v. State of A. P.

2009-04-06

A.GOPAL REDDY, K.C.BHANU

body2009
JUDGMENT (Per K.C. Bhanu, J.) This criminal appeal is directed against the judgment dated 18-3-2006, passed in S.C. No. 604 of 2005, by the II Additional Sessions Judge, Nalgonda, where under and whereby the sole accused was convicted for the offence punishable under Section 3021PC and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 1001- in default to undergo rigorous imprisonment for a period of on month. 2. The brief facts that are necessary for disposal of the present criminal appeal may be stated as follows. Devaiah (hereinafter referred to as 'the deceased') is no other than the son of the accused. P.W. 1 is the wife of the deceased. The deceased and P.W.1 along with their children used to reside at Hyderabad by doing coolie work. Two or three months prior to the death of the deceased, P.W.1 and the deceased came down to Vasanthapuram and living with the accused in his house. The accused was having half acre of agricultural land in their village. After the deceased returned to the village he asked his father to give the half acre of land to him for cultivating the same on lease, for which the accused refused to give the same as he proposed to give the land to a person belonging to Lambada caste. Still the deceased insisted the accused to give the land to him on payment of lease amount. On that a quarrel ensued between then. On 14-4-2005 at about 8 p.m., the accused kept the mat at some other place. The deceased asked the accused to give the mat for sleeping. On that again there was some scuffle between them. In that scuffle, the deceased beat the accused. Thereafter, P.W. 1, the deceased and their children went to bed. At about 11 p.m. P.W.1 woke up to attend calls of nature and found the accused smoking beedi in front of the house. She went to some distance. But due to suspicion against the accused, she saw towards her house and saw the accused picking up a knife and entering into the house and stabbing the deceased. Then she raised cries. Upon hearing the cries, the neighbours rushed to the place of incident. Then P.W.1 along with neighbours lifted the deceased in an auto to Ananthagiri road to go to Kodada hospital for treatment. Then she raised cries. Upon hearing the cries, the neighbours rushed to the place of incident. Then P.W.1 along with neighbours lifted the deceased in an auto to Ananthagiri road to go to Kodada hospital for treatment. By the time they reached Ananthagiri road, the deceased died and they brought back the dead body to house. Thereafter P.W.1 went to Nadigudem Police Station and lodged Ex. P-1 complaint with the police. P.W. 11 registered the complaint as a case in Crime No. 28 of 2005 for the offence punishable under Section 3021 PC and informed to P.W. 12-Circle Inspector of Polcie, who took up investigation. He rushed to the scene of occurrence, conducted inquest over the dead body of the deceased in the presence of P.W. 8 and others. He also observed the scene of occurrence in the presence of same mediators, prepared rough sketch of the scene of occurrence and examined the witnesses. Thereafter, he subjected the dead body for postmortem examination. During the course of investigation, he arrested the accused on 19-4-2005 at 10.30 a.m. at the outskirts of Vasanthapuram village. On the confessional statement made by the accused the police seized M.O. 1-knife from the help of mango leaves in the mango garden. He also seized the clothes of the accused under M.Os. 4 and 5, and sent the material objects to Forensic Science Laboratory. The Doctor, who conducted autopsy over the dead body of the deceased, gave his opinion stating that the deceased died as a result of injury to liver caused by a sharp edged weapon. After completion of investigation and after receiving the relevant reports, P.W. 12 filed the charge sheet. 3. The charge framed against the accused is that on 14-4-2005 at about 11.00 p.m. at Vasanthapuram village, he did commit the murder of Jelli Devaiah, who is his own son, intentionally causing his death by stabbing him with a knife on his right side of stomach under the ribs, on the ground that on the same day night the deceased beat him when he refused to give his half acre land on lease to him, and thereby he committed an offence punishable under Section 3021PC. 4. When the charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate its case, the prosecution examined P.Ws. 4. When the charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate its case, the prosecution examined P.Ws. 1 to 12 and got marked Exs. P-1 to P-9 besides the case property Mos. 1 to 5. No oral evidence was adduced on behalf of the accused except marking Exs. D-1 to D-3 portions in 161 Cr.P.C. statements of P.Ws. 1 and 5. 6. The trial Court accepting the evidence of P.Ws.1 to 3 and 5 came to the conclusion that the accused is the assailant of the deceased and having accepted the evidence found the accused guilty of the offence under Section 302 IPC and accordingly convicted and sentenced him as aforementioned. Challenging the same, the present appeal is filed. 7. Now the point for determination is whether the prosecution proved its case against the accused beyond all reasonable doubt for the offence under Section 3021PC, and if so, the judgment of the trial Court is correct, legal and proper? 8. Learned legal aid counsel failed to appear before the Court. Hence this Court appointed Smt. Vasantha Lakshmi Bavaraju as amicus curie. She contended that the evidence of P.W. 1 is very discrepant and except her evidence, there is no other evidence to show that the accused is the assailant of the deceased. She also contended that the earliest version of P.W. 1 under Ex. P-1 would go to show that the deceased took out knife from his cloths and stabbed the deceased, due to which, the deceased fell down before the house of Kothapalli Anjaiah and she dragged out the knife, whereas in her evidence as P.W. 1, she stated that the accused took the knife from the body of the deceased and ran away. She further contended that the evidence of P.Ws. 2, 3and 5 cannot be believed in view of the fact that by the time they rushed to the scene of offence, the deceased was already unconscious and therefore, the question of giving statement by the deceased to them does not arise and that since the incident has taken place during night time there was no scope or possibility for P.W. 1 to identify the accused, and therefore it is not desirable to place any reliance on the evidence of P.W.1. 9. 9. On the other hand, the learned Public Prosecutor contended that P.W. 1 has no grouse or enmity against the accused to implicate him falsely with the commission of offence; that P.Ws. 2, 3and 5are neigh bourers, who rushed to the scene of occurrence and made enquiry with the deceased for which he stated that the accused stabbed him, and there is no reason for them to speak false against the accused so as to implicate him falsely; and that on a consideration of the entire evidence on record, the trial Curt rightly found the accused guilty of the offence and there are absolutely no grounds to interfere with the conviction and sentence recorded against him. 10. P.W.8 is one of the inquest mediators, who was present at the time of inquest, which was conducted by P.W. 12 on 15-4-2005 at about11.30a.m. The inquest mediators opined that the deceased died as a result of stab injury. 11. P.W. 10 is the Doctor, who conducted autopsy over the dead body of the deceased, found the following ante-mortem injuries. 1. Stab wound measuring about 2" x 1 4" shift shaped penetrating bellow the right costal margin in right to left direction. 2. Incised wound 1" x 1/2 x 1/2" on left index finger. He opined that both the injuries were caused by a sharp edged weapon and they are anti mortem in nature, and that the cause of death was due to injury to liver by a sharp edged weapon. He issued Ex. P-7 p.m. certificate. 12. The evidence of P.W. 10 and the recitals in Ex. P-7 remained unchallenged. Therefore, the homicidal death of the deceased is established beyond all reasonable doubt. 13. Now it has to be seen whether the accused is the assailant of the deceased or not. 14. There is no dispute that the incident took place in the house of the deceased in Vasanthapuram village. Ex. P-3-observation report prepared by P.W.12 in the presence of P.W. 8and another, and Ex. P-4 rough sketch would go to show that the scene of occurrence is the house of the deceased. 14. There is no dispute that the incident took place in the house of the deceased in Vasanthapuram village. Ex. P-3-observation report prepared by P.W.12 in the presence of P.W. 8and another, and Ex. P-4 rough sketch would go to show that the scene of occurrence is the house of the deceased. It is also not in dispute that P.W.1 and the accused used to reside in Hyderabad by doing coolie work and two or three months prior to the incident they have shifted their residence to the village and started living with the accused and that the accused was having half acre of land in the village. It is in the evidence of P.W. 1 that when the deceased asked his father to give half acre of land for cultivation on lease basis, the accused refused to give the land saying that he has already given the same to one Lambada person. 15. The incident was alleged to have taken place at about 11.00 p.m. According to P.W. 1, she workup to answer calls of nature. Prior to the incident, a quarrel ensured between the accused and the deceased regarding a mat of sleeping purpose. While P.W. 1 was proceeding to the place to answer calls of nature, the accused was sitting by smoking a beedi. On suspicion she turned backside and saw the accused picking up a knife and stabbing the deceased. She categorically deposed that she saw the incident at a distance of 1 0 to 15 yards. She admitted that there was no power supply and there is no electricity connection to their house but they took the current directly from the electric pole. The presence of P.W. 1 at the incident at the relevant point of time cannot be disbelieved. 16. Further, the presence of P.W.1 was spoken to by P.Ws. 3 and 4. As a matter of fact they enquired with P. W. 1 as to what had happened. They were informed by P.W. 1 that the accused stabbed the deceased. Further the evidence of P.Ws. 2, 3 and 5 would go to show that by the time they rushed to the scene of occurrence on hearing cries, the deceased was alive and when they questioned the deceased as to what has happened, the deceased informed them that the accused stabbed him with a knife. Further the evidence of P.Ws. 2, 3 and 5 would go to show that by the time they rushed to the scene of occurrence on hearing cries, the deceased was alive and when they questioned the deceased as to what has happened, the deceased informed them that the accused stabbed him with a knife. Therefore, the oral statement given by the deceased to P.Ws. 2, 3 and 5 would amount a statement within the meaning of sub-section (1) of Section 32 of the Indian Evidence Act. 17. The statement given by a person either written or verbal as to the cause of his death or any of the circumstance resulting his death, in which the cause of that person's death comes into question, is admissible. Once the statement under Section 32 of the Indian Evidence Act is found to be correct and not the outcome of tutoring or prompting, then it can be acted upon to base a conviction even without any corroboration. 18. Now it has to be seen whether these three witnesses had any grouse or enmity against the accused or not? 19. Admittedly, these three witnesses are neigh bourers whose houses are located very close to the house of the deceased. According to P.W. 1, she raised cries after seeing the accused stabbing the deceased. Therefore, there is every possibility for these three witnesses to rush to the scene of occurrence. Similarly there is possibility for them to question the deceased as to how he sustained stab injury. Then the deceased stated to them that the accused stabbed him. In view of the relationship between the accused and the deceased, in normal circumstances the son would not implicate his own father as his assailant unless there is bitter enmity or grouse. There is no such enmity or grouse for the deceased to implicate his own father as his assailant. Further more, P.Ws. 2, 3 and 5 have no grouse or enmity against the accused so as to speak false stating that the deceased gave a statement to them that the accused was the assailant of the deceased. In the absence of any grouse or enmity, the evidence of P.Ws.2, 3 and 5 can be acted upon. Further more, P.Ws. 2, 3 and 5 have no grouse or enmity against the accused so as to speak false stating that the deceased gave a statement to them that the accused was the assailant of the deceased. In the absence of any grouse or enmity, the evidence of P.Ws.2, 3 and 5 can be acted upon. Similarly, since the presence of P.W. 1, who is not other than the wife of the deceased, at the time of incident is found to be true and natural, her evidence can be acted upon. Further more, she lodged F.I.R. before P.W. 110n the next day at about 8 a.m. The earliest version of the incident as narrated in Ex. P-1 would clearly go to show that at about 11 p.m. in the night, she woke up her husband and went to attend calls of nature. At that time, she saw the accused, who is no other than her father-in-law, going inside the house. Due to suspicion she turned back and saw the accused picking up a knife from his stomach and stabbing her husband on his stomach on the right side ribs. The earliest version of P.W.1 as narrated in Ex. P-1 is completely in corroboration with her evidence as P.W.1. Except giving a suggestion that P.W.1 did not come to police station and give Ex. P-1 complaint, nothing has been elicited in the cross-examination ofP.W.11, who registered the case basing on Ex. P-1. Because the incident has taken place late in the night, P.W.1 may not be in a position to go to the Police Station during night time, and on the next day during the early house, she went to, the police station and lodged complaint. Once the F.I.R is found to be given In time as mentioned in Ex. P-1 and it is not shown to have been made for the purpose of the case, I the recitals therein can be used to corroborate I the evidence of P.W.1. 20. No doubt, the learned counsel for the appellant contended that there are some discrepancies with regard to removing of knife in the evidence of P.W. 1 and the recitals in Ex. P-1. Ex. 20. No doubt, the learned counsel for the appellant contended that there are some discrepancies with regard to removing of knife in the evidence of P.W. 1 and the recitals in Ex. P-1. Ex. P-1 would go to show that the knife was taken out by the deceased himself and he fell down in front of the houseofP.W.2, whereas in the evidence of P.W.1 she stated that it is the accused who took out the knife from the body of the deceased and ran away. This discrepancy in any manner cannot affect the main substratum of the prosecution case. The main substratum of the prosecution case is that the accused is the assailant of the deceased and he stabbed the deceased. These discrepancies are bound to occur even in a case of truthful witnesses when they were made to depose about the incident after a lapse of two or three years. Therefore, when the discrepancy, which will not affect the main fabric of the prosecution case, undue importance cannot be given to the said discrepancy. Therefore, in our considered opinion, the discrepancy with regard to removal, of knife from the body of the deceased would not affect the main substratum of the prosecution case. 21. The evidence of PWs.4and6wouldgo to show that when they rushed to the scene of occurrence they found the deceased with bleeding injury and P. W. 1 informed them that the accused stabbed the deceased. Though, the evidence of P.Ws. 4 and 6 is in the nature of hear say, but the statements of these two witnesses will fall under Section 6 of the Indian Evidence Act, 1872, which reads as under. Relevancy of facts forming part of same transaction:- Facts, which though not in issue are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. 22. Illustration (a) to Section 6 of the Act is relevant for the purpose of admissibility of statements of these two witnesses i.e., P.Ws. 4 and 6,which reads as under: Illustration (a) - A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating or so shortly before or after it as to form part of the transaction, is relevant fact. 23. 4 and 6,which reads as under: Illustration (a) - A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating or so shortly before or after it as to form part of the transaction, is relevant fact. 23. On hearing the cries of P.W: 1, they rushed to the scene of occurrence, and enquired with P.W. 1 as to what had happened. Then P.W.1 informed them about the accused stabbing the deceased. P.W.1 also stated that she along with the persons rushed to the scene of occurrence and tried to catch the accused but in vain. So from the above evidence, it is established beyond doubt that the accused is the assailant of the deceased. 24. Now it has to be seen whether the evidence adduced by the prosecution is sufficient to hold that the accused stabbed the deceased with an intention to cause the death of the deceased. 25. It is very difficult to prove the intention of the accused by the prosecution. Therefore, the intention can be gathered from the circumstances of the case, the nature of the injuries, and the weapon used in commission of offence. There was a scuffle between the accused and the deceased before the incident. During that scuffle it is the deceased who beat the accused, as a result, the accused sustained injuries. As a matter of fact, when the police examined P.W.1, she stated that the deceased beat the accused with a stick on the Jaw and elbow of the left hand. Of-course, that was denied and the same was marked as Ex. 0-1. Ex. 0-1 contradiction would go to show that on the preceding incident, the deceased beat the accused. Similarly there was a scuffle between the deceased and the accused with regard to using of mat. Even accepting the case of prosecution, it cannot be culled out that the intention of the accused is to kill the deceased because the deceased is no other than his own son. He caused only on stab injury, which proved to be fatal. He has not taken any undue advantage of the situation in causing many injuries, as there were no intervening circumstances. If really his intention is to kill the deceased, he would have inflicted some other blows or caused some other stab injuries. He caused only on stab injury, which proved to be fatal. He has not taken any undue advantage of the situation in causing many injuries, as there were no intervening circumstances. If really his intention is to kill the deceased, he would have inflicted some other blows or caused some other stab injuries. Therefore, the accused has not taken any undue advantage of the situation. 26. Having regard to the facts and circumstances of the case, we are of the opinion that the case squarely falls under Exception 4 of Section 300 I PC, but not under 302 IPC. Hence, the conviction and sentence recorded against the accused under Section 302 I PC is set aside. But we found the accused guilty of the offence under Section 304 Part-IIPC and sentenced him to undergo rigorous imprisonment for a period of seven years. It is needless to observe that the remand period, if any, undergone by the accused during the course of investigation, trial and after conviction, shall be given set off under Section 428 Cr.P.C., 27. With the above modification the Criminal Appeal is partly allowed.