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2009 DIGILAW 90 (AP)

Kambala Nagarjuna v. State of A. P.

2009-02-19

A.GOPAL REDDY, B.CHANDRA KUMAR

body2009
JUDGMENT (Per. B.Chandra Kumar, J) The sole appellant filed this appeal challenging the Judgment, dated 08.08.2006 passed by the I Additional Sessions Judge, West Godavari, Eluru in Sessions Case NO.265 of 2004 by which he was convicted for the offences punishable under Section 302 and 324 IPC and sentenced to suffer rigorous imprisonment for life and to pay a fine of RS.1001- and in default of payment of fine amount, to suffer simple imprisonment for one month for the offence punishable under Section 302 IPC and further sentenced to suffer rigorous imprisonment for three months for the offence punishable under Section 324 IPC. 2. The appellant hereinafter, will be referred as the accused for the sake of convenience. 3. The prosecution case, in brief, is that the accused is a resident of Yernagudem Village, Devarapally Mandai, West Godavari District. The deceased is no other than the wife of the accused. They were married about 20 years back and for about 10 years they lived happily and they are blessed with two children. Since about 1 0 years, the accused started suspecting the character of the deceased and beating the deceased indiscriminately. The village elders held a panchayat and admonished the accused to change his attitude, but there was no change in his attitude. The specific charge against the accused is that on 18.03.2004 at about 5 PM he picked up a knife and hacked the deceased on her chest and right leg causing bleeding injuries. Kambala Venkateshwara Rao - PW.11 the brother of the accused intervened and tried to snatch the knife from the hands of the accused and in that process he had also sustained injury. While the deceased was being shifted to Government Hospital, Kovvur, on the way she succumbed to the injuries. Therefore, the accused was charged with the offence punishable under Section 3021PC on the allegation of murdering his wife and for the offence punishable under Section 324 IPC for causing injury to his brother Kambala Venkateshwar Rao. 4. As seen from the evidence let in by the prosecution case is as follows: 5. The accused is the husband of the deceased, Chinchavarapu Satyavathi, PW-1 is the elder sister of the deceased. PW.2 is the mother of the deceased. PWA is a neighbour of the accused. PW.5 is the daughter of the deceased. PW.6 is the son of the accused. The accused is the husband of the deceased, Chinchavarapu Satyavathi, PW-1 is the elder sister of the deceased. PW.2 is the mother of the deceased. PWA is a neighbour of the accused. PW.5 is the daughter of the deceased. PW.6 is the son of the accused. PW.7 is another neighbour of the accused and his house is behind the house of the accused. PW.11 is the elder brother of the accused and the houses of accused and PW.11 are intervened by three houses. 6. On the date of incident, PW.1 was at her house at the time of incident. The incident occurred at about 5 PM in the evening. According to PW.1, she heard a quarrel between the accused and the deceased but after some time it was subsided. After some time, she again heard some galata from the house of the accused and rushed to the house of the accused. By the time she went to the house of the accused, the deceased had already sustained stab injury on her left chest and right thigh and that the brother of the accused by name Kambala Venkateshwar Rao (PW.11) held the accused. The accused was holding bloodstained knife and that the deceased had fell down on the ground. PW.11 snatched the knife from the hand of the accused and while snatching the knife MO-1 he sustained injury on his right palm between thumb and index fingers. Then PW1 laid the deceased in her lap. 7. According to PW.11 K.venkateshwara Rao, who is the elder brother of the accused, on the date of incident, his wife had epilepsy and therefore, he went to the doctor at the health center to get medicine for his wife. It is his further evidence that by the time he returned, the accused stabbed his wife with a knife and that he was holding a knife and loitering in his house. PW.11 further deposed that himself, one Srinu, who is the son PW1 caught hold of the accused and snatched the knife from his hand and while snatching the knife from the hand of the accused, he sustained an injury between the right thumb and right index fingers. 8. PW.11 further deposed that himself, one Srinu, who is the son PW1 caught hold of the accused and snatched the knife from his hand and while snatching the knife from the hand of the accused, he sustained an injury between the right thumb and right index fingers. 8. According to PW7-P.Venkata Nageshwara Rao, while hewas in the bathroom, he heard the quarreling of accused and deceased then he went to the house of the accused and that the neighbour informed him that the deceased was stabbed by the accused. By the time he went to the house of accused, the accused was inside the house and the deceased was alive and was talking and she was in the lap of PW.1. PW7 enquired with the deceased as to what had happened and according to him the deceased told that Ananthapanichesadu. Nannu eppudu champestanu ani cheppenadi (the accused has done the work as proclaimed by him that he would kill me) at any time. 9. As far as the motive for committing the offence is concerned, it is the case of PW.1 that the accused used to suspect the character of the deceased and used to harass her. It is also her case that till the birth of PW.6, who is their son, the relationship was cordial, but subsequently the accused started harassing the deceased. PW.2 is the mother of the deceased. According to her, since there were disputes between the accused and the deceased, the dispute were referred to the Caste elders of Yernagudem Village one year prior to the date of this incident and that the elders advised the accused and the deceased to maintain cordial relations. 10. According to PW3 since two years prior to the death of the deceased there were quarrels between the deceased and the accused. It is also the evidence of PW4 that the deceased and accused used to quarrel very often as the accused was suspecting the fidelity of the deceased. It is also his evidence that the elders admonished the accused and the deceased to be careful in future. PW5 is the daughter of the deceased. She has also deposed that once her father and mother quarrelled and it was placed before the elders, which was about three months prior to' the death of the deceased, and that the elders chastised the accused. 11. PW5 is the daughter of the deceased. She has also deposed that once her father and mother quarrelled and it was placed before the elders, which was about three months prior to' the death of the deceased, and that the elders chastised the accused. 11. PW-6 is the son of the deceased and accused. He had also deposed that there were disputes between his father and mother as his father had suspicion against his mother. 12. The further case of the prosecution is that after the incident, PW.1, herson Sreenu, and Kambala Venkateshwara Rao-PW11, brother of the deceased, took the deceased to the Police Station and as the SI of Police asked them to take the injured to the hospital, they have taken the deceased in the same auto to the hospital. The distance between their house and the police station is about 5 km. and it took about 45 minutes to reach the Hospital. 13. It is the evidence of PW.1 that she got a report-Ex.P.1 drafted in the police station and presented the same to the SI of Police and that Ex.P.1-report was scribed by police in the police station. 14. According to PW-12 C.H.P.Krishnam Raju, SI of Police, on 18.03.2004 at 9.00 PM while he was present in the police station, PW.1 came to the police station and gave a written report-Ex.P.1 and basing on the same, he registered a case in Crime No.46 of 2004 under Section 302 IPC. The printed FIR is EX.P.1 0 and he submitted EX.P.1 to the Court and informed the same to the Inspector of Police about the registration of the case. 15. It is the evidence of PW.14 G. Jayasingh Rao that he worked as SI of Police. On 18.03.2004, he received express FIR in Crime No.46 of 2004 of Devarapalli Police Station and took up investigation in this case. He further deposed that he proceeded to the Government Hospital, Kovvur and learnt that the dead body was placed in the postmortem shed and that PW.11 was taking treatment in the ward. On 19.03.2004, at 6.30 AM, he proceeded to the scene of offence and secured the presence of PW.9 and Gangavarapu Lakshmudu and in their presence he prepared observation report-Ex.P.5. He also prepared rough sketch-Ex.P.12. He examined PWs1 to 4 and recorded their statements. On 19.03.2004, at 6.30 AM, he proceeded to the scene of offence and secured the presence of PW.9 and Gangavarapu Lakshmudu and in their presence he prepared observation report-Ex.P.5. He also prepared rough sketch-Ex.P.12. He examined PWs1 to 4 and recorded their statements. Then, he visited the Government Hospital, Kovvur and held inquest over the dead body of the deceased in the presence of PW.9 and Gangavarapu Maha Lakshmanudu and T. Radhakrishna. During inquest, he examined PW.1 and PWs.5 to 7 and recorded their statements. The inquest report is EX.P.6. Then he got photographed the dead body of the deceased by PW.8. Ex.P.4 are photos and negatives taken by PW.8. 16. PW.10 is the Deputy Civil Surgeon, Community Health Centre, Kovvur, who conducted postmortem over the dead body of the deceased at 12.30 PM on the request of the Inspector of Police, Kovvur, and found stab injuries on the left side of the chest and on the right breast. Size is 2x1\4 inches red in colour. Margins are regular. Entered into the plural cavity. He also noticed an incised wound 4x1 inches in size on the right thigh, red in colour and horizontal in length. He is also noticed fracture of 3rd and 4th ribs, which are corresponding to the external injury. Hence, he issued postmortem certificate. The doctor opined that the deceased would appear to have died 18 to 24 hours priorto his postmortem examination and the cause of death was due to cardio respiratory failure, shock, external and internal hemorrhage and the injury to the right lung was caused by a sharp edged stabbing weapon. The postmortem certificate issued by him is EX.P.9. 17. The further case of the prosecution is that PW.14-lnspector of Police arrested the accused at4 PM on 19.03.2004 and recorded his confessional statement in the presence of PW.9 and Gokavarapu Mahalakshmadu at RTC bus stand, Devarapalli. The accused made confessional statement and the admissible portion is Ex.P.7 In pursuance of Ex.P.7, the accused led P.W.14 and the mediators to Kanakadurgamma Temple, Yernagudem and he picked up a knife from behind the compound of the temple and handed it over to PW14 in the presence of mediators. EX.P.8 is the mahajar prepared for recovery of M01-knife. Slips were pasted on M01at the time of recovery. On 5.4.2004 M.O.1 was sent to the chemical examiner through the SDPO, Kovvur to the FSL, Hyderabad. EX.P.8 is the mahajar prepared for recovery of M01-knife. Slips were pasted on M01at the time of recovery. On 5.4.2004 M.O.1 was sent to the chemical examiner through the SDPO, Kovvur to the FSL, Hyderabad. The letter of advice is EX.P.13. The report of FSL is EX.P.15. After completing the investigation, the Inspector of Police laid charge sheet against the accused. 18. The stand of the accused is of total denial. His specific case is that he was not present at the house at the time of incident and that he went to the fields and by the time he returned, the deceased was shifted to the hospital. 19. In support of its case, the prosecution examined PWs.1 to 14 and got marked Ex. P.1 to P.15 and M01. The learned I Additional Sessions Judge, West Godavari, Eluru believed the prosecution case and convicted the accused, as stated supra. 20. Learned counsel for the accused could not dispute the death of the deceased as homicidal. The injuries noted by the doctor who conducted postmortem examination and opinion of the doctor also proves the same. 21. Learned counsel for the accused submitted that all the prosecution witnesses are interested witnesses and that their version cannot be accepted. It is also his case that since PW.1 and PW.11 are enimical against the accused, they falsely implicated the accused in the case. 22. Learned Public Prosecutor submitted that PWs.1, 2 and 11 are the natural witnesses and that they have witnessed the accused holding the knife and that when PW.11 tried to snatch the knife from the hands of the accused, he sustained injury. It is also his statement that the presence of PWs.1 and 11 cannot be disputed and their version is natural and probable and there is nothing to disbelieve their version. it is also his submission that the prosecution has proved the motive and the recovery of M01 from the accused and in the above circumstances, the conviction should be confirmed. 23. PW.1 is the elder sister of the deceased. The house of PW4 is intervening the house of PW.1 and the accused. PW.1 house is also intervened by three houses. Therefore, all the witnesses are natural witnesses and they are not chance witnesses. 23. PW.1 is the elder sister of the deceased. The house of PW4 is intervening the house of PW.1 and the accused. PW.1 house is also intervened by three houses. Therefore, all the witnesses are natural witnesses and they are not chance witnesses. PW.1 specifically deposed that on the date of incident at about 5.00 PM she was at her house and she heard verbal quarrel between the accused and the deceased and after sometime it was subsided. It is also her evidence that after sometime, she heard some galata at the house of the accused and then she has taken round of her house and went to the house of accused. Her specific case is that by the time she went to the house of the accused, the deceased was already stabbed on her left chest and on left thigh and that PW.11 held the accused and that the accused was armed with a knife in his hand. It is also her evidence that PW.11 tried to snatch the knife from hand of the accused and ill that process PW.11 sustained injury and that the knife was stained with blood. It is also her evidence that the deceased fell on the ground and that she laid the deceased in her fold. It is also her evidence that her son and PW.11 and others took the deceased in auto to the Government Hospital, Kovvur for treatment and on the same day she went to the police station and gave report in Ex.P.1 and she has also admitted the contents of the report, when the contents were read over to her in the Court with the permission of the court. PW.11 is the eyewitness in this case. He is no other than the brother of the accused. According to him, on the date of incident, his wife was suffering from epilepsy and that he went to the doctor to get medicine for his wife and by the time he returned to the house, the accused stabbed the deceased with knife. However, he has specifically deposed that he saw the accused armed with the knife and that the accused was loitering in his house armed with knife. It is also his evidence that he along with Srinu - son ofPW.1 caught hold of the accused and snatched the knife from him. However, he has specifically deposed that he saw the accused armed with the knife and that the accused was loitering in his house armed with knife. It is also his evidence that he along with Srinu - son ofPW.1 caught hold of the accused and snatched the knife from him. In that process, he sustained injury in between the right thumb and left index finger. 24. Section 6 of the evidence Act is as follows: 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. A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. Therefore, whatever was said or done by A and B or by the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. Therefore, the evidence of PW.1 that she heard galata from the house of accused and that the accused and deceased were quarrelling just before the incident and that immediately she proceeded to the house of the accused and saw the accused holding a knife forms part of the transaction and they are all relevant facts. Similarly, the evidence of PW.11 that he saw the accused armed with a knife and that he was loitering in the house armed with knife and that he and Srinu snatched the knife from the hand of the accused and that while snatching he sustained injury, are all relevant facts. The evidence of PWs.1 and 11 clinchingly establish that it is the accused, who was present with a knife near the deceased, who had stabbed injuries, immediately after the occurrence. Their evidence is natural and inspiring confidence. Of course, it has come in the evidence of PW.1 that since the time of their ancestors there are no talking terms between the family of the accused and her husband. Their evidence is natural and inspiring confidence. Of course, it has come in the evidence of PW.1 that since the time of their ancestors there are no talking terms between the family of the accused and her husband. It has also come in the evidence of PW.11 that there are some disputes between him and the accused with regard to the allotment of house, which is abutting the road in which the accused was residing. It is also his evidence that as an elderly family member the house should have been given to him. 25. PW.11 is the injured witness. PW.13 examined PVV.11 on the date of incident at 7.15 PM and found the lacerated injury of 2 x 1 inches on the base of the right thumb bleeding afresh. EX.P.11 is the wound certificate. The doctor also opined that the injuries are caused with M01-knife. Therefore, presence of PW.11, at the house of accused immediately after the incident, cannot be doubted. PWs1 and 11 had seen the deceased with injuries and the accused holding the knife at the scene of offence. 26. As far as evidence of PWs.1 and 11 is concerned, the principles of res gestae appears to be applicable. The acts, declarations and incidents accompanying or explaining the transaction or facts in issue, are which themselves constitute the facts or transaction in issue are considered as part of res gestae and admitted as original evidence and not hearsay. Thus, the exclamation statements and complaints of an injured party or the complaint of a raped woman immediately before, during or after the occurrence are relevant. The essence of doctrine of res gestae is that a fact which though not in issue is so connected with the fact in issue as to form part of the same transaction becomes relevant by itself. The statement of fact admissible under Section 6 of the Evidence Act is on account of its spontaneity. The said statement of course must have been made contemporaneously with the acts which constitute the offence or at least immediately thereafter. But, if there is an interval, however, slight it may be which is sufficient enough for fabrication, then the statement is not part of res gestae. The principles of res gestae have been discussed in the case between Gentela Vijayavardan Raa v. State of A.P.1. 27. But, if there is an interval, however, slight it may be which is sufficient enough for fabrication, then the statement is not part of res gestae. The principles of res gestae have been discussed in the case between Gentela Vijayavardan Raa v. State of A.P.1. 27. As far as interested witnesses or enimical witnesses, are concerned, the legal position is that their evidence cannot be discarded merely because they are interested witnesses. In the case of Masalti and other v. The State of U.P. It is held as follows: There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But, it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. 28. In this case, considering the fact that PWs.1 and 11 are natural witnesses and their evidence being spontaneous their alleged interestedness does not affect their veracity. Further PW.11's evidence receives corroboration from the fact that he received injury during the incident. The inescapable inference from the evidence of PW.1 and PW.11 is that it is the accused, who inflicted injuries to the deceased. 29. Thus, the evidence of PW.1 and 11 proves that it is the accused, who caused injuries to the deceased. The evidence of PWs1 to 6 and 11 proves the motive in this case. PW.2 is the mother of the deceased, who was informed about the incident when she was at her village and later she proceeded to Kovvur Hospital and saw the dead body of the deceased. PWs.3 and 4 claims that they heard about the incident soon after arriving to their house. Similarly PWs5 and 6 also who are children of the accused and deceased deposed that they heard about the incident from the neighbours. PW7, who is the neighbour of the deceased, who claims that when he was in the bathroom in his house, he heard the accused and the deceased quarrelling. He says that by the time he came out of the bathroom, neighbours were talking. PW7, who is the neighbour of the deceased, who claims that when he was in the bathroom in his house, he heard the accused and the deceased quarrelling. He says that by the time he came out of the bathroom, neighbours were talking. Then he went to the house of the accused and had seen the deceased lying in the lap of PW.1. He saw bleeding injury on the right thigh and another injury on the right chest of the deceased. He enquired with the deceased and deceased told him that Annanthapani chesinadu. Eppudu champestanu anevadu. However, in the cross-examination he admitted that he did not state before the police that he found the deceased in the lap ofPW.1.ln view of the above omissions, the evidence of PW. 7 becomes doubtful and the same is not helpful to the prosecution. 30. As far as the recovery of M01 is concerned, the prosecution version is not acceptable, because PW.11 categorically deposed that he and Srinu caught hold of the accused and snatched knife from his hand. PW.11 further deposed that Srinu who is son of PW.1 had hidden the said knife after it was snatched from the accused. Of course, the witnesses have identified the knife used by the accused in the commission of offence. But in view of the clear evidence of PW.11 that Srinu, son of PW.1, had hidden the knife, which was snatched from the accused, the evidence of the 10 that he recovered the same at the instance of accused, does not inspire confidence. Even if the evidence of PW7 and recovery of knife from the accused are disbelieved and not taken into consideration the evidence of PW.1 and PW11 and other circumstances from oral evidence clinchingly establish the guilt of the accused. 31. It is settled law that even if there are some defects in the investigation, by that itself the evidence, which is otherwise inspiring confidence and reliable, cannot be disbelieved and the prosecution case cannot be thrown out. 32. As far as injury caused to PW.11 is concerned, admittedly PW.11 sustained injury when he tried to snatch the knife from the hand of the accused. Therefore, it cannot be said that the accused had an intention to cause an injury to PW.11. 32. As far as injury caused to PW.11 is concerned, admittedly PW.11 sustained injury when he tried to snatch the knife from the hand of the accused. Therefore, it cannot be said that the accused had an intention to cause an injury to PW.11. Therefore, the conviction and sentence passed under section 324 IPC for causing injury to PW.11 cannot be confirmed and it is accordingly set aside. 33. In the light of the above discussion, we hold that the prosecution has proved its case beyond reasonable doubt against the appellant as far as the offence under Section 302 IPC is concerned. However, we hold that the prosecution failed to prove the charge under Section 3241PC framed against the appellant. 34. In the result, the appeal is partly allowed and partly dismissed. The conviction and sentence passed against the appellant under Section 3021PC stands confirmed. However, we set aside the conviction and sentence passed against the appellant for the offence under Section 324 IPC.