THE HONBLE SRI JUSTICE [ENTITY] AND THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI CRIMINAL APPEAL NO.1372 OF 2010 01-09-2016 [ENTITY] and othersAppellants The [ENTITY] rep. by its Public Prosecutor Respondent Counsel for the Appellants: Sri [ENTITY], for A1 Sri [ENTITY], for A3 Counsel for respondent: Public Prosecutor <Gist: >Head Note: ? CASES REFERRED: 1. 1976 Cri L J 1563 2. 2014 (2) ALD (Crl.) 860 3. (2008) 15 SCC 582 4. 2009 (2) ALT (Crl) 135 (DB) (AP) 5. 2006 (2) ALD (Crl) 704 (AP) 6. AIR 1980 SC 638 7. 2009 (2) ALT (Crl) 64 (AP) 8. AIR 1981 SC 1230 9. 2003 Crl.L.J 1210 10. 2013 (2) ALD (Crl) 280 (AP) 11. AIR 2004 SC 124 12. 2008(1) ALT (Crl) 35 (SC) 13. AIR 2008 SC 1021 (DB) 14. 2007 CrlLJ 2083 15. AIR 2002 SC 620 16. AIR 1970 SC 1305 17. AIR 1976 SC 560 18. AIR 1994 Sc 1045 19. AIR 1989 SC 2039 20. AIR 1974 SC 1822 21. AIR 1991 SC 1260 22. (2010) 12 SCC 254 23. AIR 1976 SC 2423 24. (2012) 8 SCC 289 25. 2011 (2) SCJ 462 THE HONBLE SRI JUSTICE [ENTITY] AND THE HONBLE SRI JUSTICE [ENTITY] Criminal Appeal no.1372 of 2010 JUDGMENT
(per Honble Sri Justice [ENTITY]) In this appeal under Section 374(2) [ACT], the appellants/A1 to A3 impugned the judgment dated 04.10.2010 of the learned IV Additional Sessions Judge (Fast Track Court), Karimnagar, in [CASE NUMBER]. By the said judgment, the learned Additional Sessions Judge found A1 to A3 guilty of the offence punishable under [SECTION] [ACT] and sentenced them to undergo imprisonment for life and pay a fine of Rs.10,000/- each and undergo simple imprisonment for six months each in default thereof.
2. We have heard the submissions of Sri [ENTITY], learned counsel appearing for A1, Sri [ENTITY], learned counsel appearing for A3 and the learned Public Prosecutor appearing for the respondent/State. We have perused the material on record. It is stated that A2 died. Hence, the appeal in so far as A2 stands abated. A4 died even during the trial.
3. The learned IV Additional Sessions Judge framed the following charge against A1 to A4:
FIRSTLY: THAT you-A-1 to A-4 on 19-6-2004 at 8.30 p.m near Swathantra Chowk, Godavarikhani in furtherance of your common intention did commit murder of [ENTITY], S/o. Vamana Chary, Aged: 28 years, Caste: Goldsmith, Ashoknagar, Godavarikhani, while he was returning to his house by attacking him with butcher knives and boulders keeping in mind that he had love affair and married the daughter of you A-1 at Sub-Registrar Office, Peddapalli, and you thereby committed an offence punishable U/[SECTION]/[SECTION] of the [ACT] and within my cognizance.
[Reproduced verbatim]
4. At trial, the prosecution examined PWs 1 to 25 and exhibited P1 to P34 and marked MOs 1 to 12. No oral evidence was adduced on the side of the defence. However, Exhibit D1 was marked.
5. The case of the prosecution and gist of the evidence, which was adduced to bring home the guilt of the accused, which need a detailed examination, are as follows:
The deceased, [ENTITY], a Goldsmith by profession, is a resident of Ashoknagar, Godavarikhani. The deceased is the eldest son of PW1, [ENTITY], and PW2, [ENTITY]. PWs3 and 4 are the brothers of the deceased. A1 and A2 are brothers. LW11, [ENTITY], is the daughter of A1. A1 and his family are residents of a house situated adjacent to the house of PWs1 and 2 and their son, the deceased. The deceased and LW11, [ENTITY], fell in love with each other about six years prior to the death of the deceased. They belong to different religions. On 15.03.2004, the deceased and LW11, [ENTITY], approached the Sub-Registrars Office, Peddapally, and applied for registration of their marriage. After 30 days waiting period, the Sub-Registrar, Peddapally, registered the marriage between the deceased and LW11, [ENTITY], on 16.04.2004. PW18, [ENTITY], and PW19, [ENTITY], were present at that time along with others and PW12, [ENTITY], PW13, [ENTITY], and LW17, [ENTITY], figured as witnesses and eventually a marriage certificate was issued by PW21, Sub- Registrar, Peddapally. A1 and his wife, became wild, on coming to know of their daughters inter religion marriage. At their behest LW11, [ENTITY], filed a complaint before the Station House Officer, I Town Police Station, Godavarikhani, alleging that PW12, PW13 and LW17, [ENTITY], kidnapped her along with one unknown person and the deceased and threatened her and that her marriage was forcefully performed with the deceased at the Sub-Registrars Office, Peddapally. On such a report, a case in [CASE NUMBER] for the offences punishable under [SECTION], [SECTION] and [SECTION] [ACT] was registered and was investigated into. During the course of investigation into the said crime, the statement of LW11, [ENTITY], was recorded by the learned Magistrate; wherein, under the influence and force of A1, her father, and her mother, she denied her love affair with the deceased. While so, A1 and others were determined to do away with the life of the deceased. Pursuant to a plan, on 19.06.2004 at about 22:30 hours, A1 collected A2, his brother, A3 and A4, his servant, and they all went on LML Vespa Scooter belonging to A1, and attacked the deceased with butchers knives and a boulder at Swathantra Chowk, Godavarikhani, while the deceased was returning to his house and inflicted fatal stab injuries with butchers knives and head injury with boulder. The said injuries led to his instantaneous death. 5.1 PWs1 and 2, who are the parents of the deceased, spoke about the facts with regard to the situation of the house of A1 adjacent to their house and the love affair that went on for six to eight years between their son, the deceased, and LW11, [ENTITY], the daughter of A1, in spite of the fact that the two families belong to different religions and the marriage between the deceased and LW11, [ENTITY], without their knowledge and the registration of their marriage in the Sub-Registrars Office, Peddapally, and the issuance of Exhibit P20, copy of marriage certificate, and the attack by all the accused on their son, the deceased, and the death of their son in the said attack and shifting of their son to Mamatha hospital, Godavarikhani. PW1 further testified that by the time they went to the hospital, his son succumbed to the injuries and that they saw the dead body of their son with a crush injury on the head and stab injuries on stomach, neck, hand and other parts of the body. PW1 also stated that he was examined by the police on the next day of lodging the complaint. 5.2 PW1, in his cross examination testified as follows: - Four years prior to the death of his son, he came to know that his son fell in love with LW11, [ENTITY], the daughter of A1, and it was at a time when A1 beat his deceased son in his presence in front of Youth office, which is situated one house away from the house of A1. His deceased son was President of Amma Youth Association consisting of 200 members. At the time when A1 beat his son, he questioned A1. He did not lodge a complaint with the police complaining about the said incident. Thereafter, he admonished his deceased son and sent him away to Warangal where he opened a shop at Viswakarma Street, after taking a premises on lease. His son used to run the said shop with the help of his assistants. The said shop was being run till his sons death. His son came back to Godavarikhani one year prior to his death. Then he questioned him as to why he has come back having promised to go to Warangal. Only two months prior to the death of his son, he came to know through a news item in a newspaper about the marriage between his deceased son and LW11, [ENTITY].
Having come to know of it, he scolded his son and asked him not to come to his house thereafter. Therefore, his deceased son did not come to his house for two months. However, during the said period, his deceased son used to come to his house in his absence. On 29.04.2004, daughter of A1, LW11, [ENTITY], filed a kidnap case against his deceased son. A case in [CASE NUMBER] was registered. They received summonses from the Court in that case four days after the death of his son. Therefore, the summonses were returned. When PW2, his wife, was present along with him, LW7, [ENTITY], informed him about the incident of murder involving his deceased son. Then they went to the hospital and saw the dead body of his son that was lying on a table. He lodged Exhibit P1, report, with the police having personally scribed it at the police station. Thereafter, police came to the hospital and examined the witnesses present there. He does not know where his deceased son and LW11, [ENTITY], daughter of A1, stayed together after their marriage. His son converted into Muslim religion; but, he did not state so before the police. He did not state before the police that his son and daughter of A1 were in love for eight years. On his enquiries, PWs5 and 6 and LW7, [ENTITY], informed the names of A1 to A3 and one unknown person.
5.3 Thus, PW1 spoke about the motive for A1 and others to do away with the life of the deceased. PWs 2 and 3 more or less supported the version of PW1 on all material aspects and the testimony of PW1 finds corroboration from the evidence of the said witnesses. PWs1 to 3 maintained their stands in the respective cross examinations. No material omissions or contradictions were elicited in their examinations. Be that as it may.
5.4 Apart from motive, the case of the prosecution as regards the incident of attack on the deceased by A1 to A4 rests on the ocular testimony of eyewitnesses, PWs5 to 7. Since there is ocular testimony of the said material witnesses, we shall now proceed to examine the said evidence to find out as to whether the said evidence by the required standards is sufficient to bring home the guilt of the accused for the offence of murder with which they are charged. 5.5 PW5 is a person who knows the deceased and the accused as well as PWs1 to 4, who are the parents and brothers of the deceased. He deposed that the deceased died about more than two years prior to his giving evidence and that he is a resident of Swathantra Chowk, Godavarikhani, and that on 19.06.2004, he, the deceased, PW6, [ENTITY], were coming towards Swathantra Chowk, and that by the time they reached near Swathantra Chowk, A1 to A4 came there on a blue colour LML Vespa (scooter) and that A1 and A2 stabbed the deceased with knives and that he raised hue and cry and that on hearing the same, his father, LW7, [ENTITY], and PW7, [ENTITY], came there and that A1 gave the knife to A3 and that A3 and A4 stabbed the deceased and that at that time A1 and A2 prevented him and others present from interfering and thereafter A1 and A4 picked up one boulder and hit the deceased on his head and afterwards all the accused fled away from the scene on the scooter as the accused thought that the deceased had succumbed to the injuries and that he, LW7, [ENTITY], PW6 and PW7 shifted the deceased on a push cart to Mamatha hospital and that after examining the deceased, the Doctor declared that the deceased was brought dead and that he informed about the incident to the members of the family of the deceased and that the accused thus killed the deceased on account of inter religion marriage which the deceased had with the daughter of A1.
5.6 PW6, [ENTITY], whose presence at the scene of offence at the time of attack by the accused on the deceased was spoken to by PW5, testified that the deceased died about two years prior to his giving evidence and that he is a resident of Markandeya colony, Godavarikhani, and that on 19.06.2004 at about 10:30 P.M., he, PW5 and the deceased were near T-road and that at that time all the accused came there and started stabbing the deceased indiscriminately and that he and PW5 raised hue and cry and that on hearing their cries, LW7, [ENTITY], and PW7 came there and that A3 and A4 prevented him and others from interfering and that A1 gave the knife to A3 and that A1 and A4 hit the deceased on the head with a boulder and that thereafter all the accused fled away on the scooter thinking that the deceased had died and that later he, PW5, LW7, [ENTITY], PW7 and PW8, [ENTITY], shifted the injured/deceased to a hospital on a pushcart and that on the way to Mamatha hospital, they met PW4, the brother of the deceased, near Gousia hospital, and that he accompanied them to Mamatha hospital and that at that hospital, the duty Doctor declared that the deceased was brought dead and that he saw injuries on the head, both hands, neck, both sides of upper back side and stomach of the deceased and that the accused bore grudge as the deceased fell in love and married the daughter of A1 in the Registrars Office, Peddapally, though she belongs to Muslim religion and that the deceased was killed by the accused.
5.7 It is pertinent to note that PW4, one of the brothers of the deceased, though was not a direct witness to the incident of attack on the deceased by the accused, also deposed that when his injured bother/deceased was being taken to Mamatha Hospital on a push cart by PW5 and others, he identified his brother and that he accompanied them and the deceased to the said hospital and that from PWs5 and 6 he came to know about the attack on his brother by the accused and that the Doctor at Mamatha hospital declared that his brother was brought dead.
5.8 PW7, whose presence at the scene more or less at the time of the attack by the accused on the deceased was spoken to by PWs5 and 6, also testified that the deceased died about more than two years prior to the date of his giving evidence and that on the date of incident, he, the deceased, PWs5 and 6 were talking near Swathantra Chowk T-junction as his wife was contesting in Municipal ward elections as independent candidate and that in the meantime, at about 10:30 PM, A1 to A4 came there and A1 to A3 started stabbing the deceased with knives and that on that he, PWs5 and 6 raised hue and cry and that on that LW7, [ENTITY], came there but A1 and A4 prevented them from interfering and that the deceased fell down on the ground while A2 and A3 were stabbing and that while threatening them A1 and A4 picked up one cement boulder and threw it on the head of the deceased and that after that all the accused fled away from the scene of offence thinking that the deceased succumbed to the injuries and afterwards he, PWs5 and 6 and LW7, [ENTITY], shifted the deceased on a push cart to the hospital and that on the way PW4 met them near Gousia hospital and accompanied them to Mamatha hospital, Godavarikhani, and that at that hospital the duty doctor, having examined the deceased, declared that he was brought dead and that in the intervening time PWs1 and 2 also came to the hospital and that the deceased sustained injuries on left hand little finger, right hand palm, left side of neck, right side eye on the face, left hand elbow, head, forehead, both sides of the upper portion of the back side and in the stomach and that the accused bore grudge against the deceased and killed the deceased as the deceased married the daughter of A1 though she belongs to Muslim religion.
5.9 To complete the narration of the evidence, it is necessary to now make a passing reference to the other and further evidence on record.
PW16 is a panch witness in whose presence the police observed the scene of offence and seized MO1, stone, MO2, a pair of chappals, MO3, another pair of Chappals, MO4, a single chappal, MO5, a blood stained cell phone, MO6, blood stained earth, and MO7, control earth under Exhibit P13, panchanama. In his presence, the police also prepared Exhibit P14, rough sketch of scene of offence. In the presence of the said witness police also seized MO8, Navy Blue colour jean pant, and MO9, shirt, under the cover of Exhibit P15, inquest report, after holding inquest on the dead body of the deceased. PW17 is a panch witness in whose presence police recovered MO10, knife, and MO11, knife, under the cover of Exhibits P16 and P17, recovery panchanamas, pursuant to the confessional statements of A1 and A2. PW20 is the Doctor/civil surgeon of the Mamatha hospital who declared that the deceased was dead when brought to the said hospital by some persons on 19.06.2004 during night hours. PW22 is the Civil Assistant Surgeon, Government hospital, Ashoknagar. He conducted post mortem examination on the dead body of the deceased and gave Exhibit P23, Post Mortem Examination Report, with his opinion that the cause of death is due to shock and haemorrhage due to multiple injuries to the head, brain and chest. He stated in his evidence that he found the following injuries on the deceased: (i) Lacerated wound 2 x on the left hand (medial surface of the palm) extending from the eminence to the face of the little finger; (ii) Lacerated wound 01 over the dorsal surface of the left hand;
(iii) 4 x 2 x 1 lacerated wound on the dorsal surface of the right hand;
(iv) 2 x 1 x 1 depth stab injury below the right maxilla extending into the pleural cavity puncturing the right lung in the middle; (v) Fracture 7th and 8th ribs in the middle on the right side; (vi) 5 x 2 x 1 lacerated wound left shoulder region; (vii) 5 x 1 x 1 lacerated wound extending from the cheek to the face of the neck left side; (viii) 2 x 1 lacerated wound on the scalp left parietal region; (ix) 1 1 T- shaped lacerated wound on the frontal region towards left side; (x) 01 lacerated wound on the left eyebrow; (xi) 3 x 1 x on the right maxillary region extending from the right eye to the right ear lobule; (xii) 2 x 1 lacerated wound on the scalp in the centre of the head;
(xiii) Multiple fractures on all the skull bones brain matter exposed through the fracture side; (xiv) x 1 lacerated wound on the abdomen left hypocondrium; (xv) 3 x 1 x 1 lacerated wound on the abdomen on the right side above the umbilical region penetrating into abdominal cavity but not injuring the intestine; (xvi) 3 linear lacerated wound on the back below the scapular region left side; (xvii) Three linear abrasion one below the other extending from the upper part of the right shoulder to the right lumbar region 433 respectively; and (xviii) 21 lacerated wound on the right elbow region on the back. PWs23 to 25 are the investigating officers who investigated into the crime and collected evidence.
6. Before we proceed further, it is apt to deal with the contentions of Mr. [ENTITY], learned counsel for A1. He would submit that there is no proof of motive and that the marriage between the deceased and LW11, [ENTITY], is not established and that the evidence of the eyewitnesses is not credible as there are variations in regard to the specific overt acts attributed to A1 to A4 in the alleged incident of attack on the deceased and that the weapons of offence are referred to in the charge sheet and evidence collected as butchers knives whereas in the evidence before the Court, the witnesses mentioned that the weapons are knives and that the alleged eyewitnesses are implanted witnesses and that the complaint was not lodged till the next day morning and that, therefore, the prosecution failed to bring home the guilt of the accused beyond all reasonable doubt.
6.1 We are not impressed with the said submissions in view of the fact that none of the submissions merit consideration in the light of the evidence that is adverted to supra, which is unswerving, credible and inspires confidence. Further, as rightly contended by the learned Public Prosecutor, there is no reason for the members of the family of the deceased to leave the real culprits, if any, and falsely implicate the accused in the crime. 6.2 Some other contentions urged by Mr. [ENTITY], learned counsel are akin to the contentions urged on behalf of A3. We therefore prefer to deal with said contentions while dealing with the contentions advanced on behalf of the said accused.
7. Now we shall deal with the contentions advanced by Mr. [ENTITY], learned counsel appearing for A3.
Firstly: The first set of contentions is as under: Only two knives were brought to the scene by the alleged assailants. Only two knives were allegedly seized and marked. But, PW7s testimony that A1 to A4 came there and that A1 to A3 started stabbing the deceased with knives therefore cannot be accepted. The evidence of PW5 that A1 gave the knife to A3 and that on that A3 and A4 stabbed the deceased is artificial. Further, PW5 stated that A1 and A2 prevented him and others present from interfering. On the other hand, PW6 stated that A3 and A4 prevented him and others from interfering. However, PW7 stated that A1 and A4 prevented him and others from interfering while A2 and A3 are stabbing. Nevertheless, the evidence of PW6 also reflects that A1 gave the knife to A3; but, he did not state that A3 stabbed the deceased. The said discrepancies and inconsistencies show that the evidence brought on record is unreliable and does not establish the guilt of the accused beyond reasonable doubt. The prosecution relied upon MO5, cell phone, which was allegedly found lying at the scene of offence, and which was recovered from the scene of offence to link A3 with the offence. No reliable evidence was adduced to establish that the MO5 is that of A3.
We have given serious consideration to the above submissions of the learned counsel. Be it first noted that even though the evidence adduced to show that the cell phone recovered is that of A3 is weak and unreliable, still as there is direct evidence on record, the said aspect of the prosecution case will not undermine the veracity of the said other evidence of the prosecution, which is overwhelming and otherwise convincing. Further, the evidence on record shows that while A3 and A4 were stabbing the deceased, A1 and A2 prevented the persons present there from interfering and that when A1 and A2 were stabbing the deceased, A3 and A4 prevented the persons present there from interfering and that while A2 and A3 were stabbing A4 and A1 prevented the persons present there from interfering. Therefore, the prevention from interference was caused by two accused while two other accused were indulging in stabbing is clear from the evidence brought on record. Further, as rightly pointed out by the learned Public Prosecutor, A1 and A4 picked up a cement boulder and hit the deceased on the head. Therefore, the version of the witnesses that A1 gave the knife to A3 is plausible. Otherwise, A1 would not have joined A4 in hitting the deceased on his head with a boulder (MO1). Therefore, we see no acceptable merit in the said first set of contentions.
It is pertinent to note that the prosecution in this case invoked [SECTION] [ACT]. The well settled law on the said facet is as under: Under the said provision of law, a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. The question whether there was any common intention or not depends upon the inference to be drawn from the proved facts and circumstances of each case. Common intention is seldom capable of direct proof, it is almost invariably to be inferred from proved circumstances relating to the entire conduct of all the persons and not only from the individual act actually performed. The totality of circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit an offence with which they are charged. Thus, [SECTION] [ACT] deals with vicarious liability of an accused for an offence committed by another. Under this Section when a criminal act is done by several persons in furtherance of the contemplation of all, each of such persons is liable for the act in the same manner as if it were done by him alone. The nature of participation under [SECTION] [ACT] has been considered in the case of [PRECEDENT] wherein it is held as follows:
[SECTION] is to be read along with the preceding [SECTION] which makes it clear that the act spoken of in [SECTION] includes a series of acts as a single act. It follows that the words when a criminal act is done by several person in [SECTION], may be construed to mean when criminal acts are done by several persons. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim, or may otherwise facilitate the execution of the common design. Such a person also commits an act as much as his co-participants actually committing the planned crime. In the case of an offence involving physical violence, however, it is essential for the application of [SECTION] that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design, is itself tantamount to actual participation in the criminal act.
Thus, in a case of the present nature, the emphasis is also on physical presence and promotion or facilitation of the crime. In the case on hand, there is direct evidence not only in regard to the overt acts of A1 to A3 and A4 but also in regard to their actual participation in the criminal enterprise and their physical presence, promotion and facilitation of the crime. Hence, the evidence on record sufficiently reflects the complicity of the accused in the crime.
Secondly: It is next urged as follows: If one goes by the prosecution version that the deceased was indiscriminately stabbed and was hit with a boulder, the clothes of A3 ought to have been stained with blood. Similarly, if really PWs 5 to 7 were also present in close quarters, their clothes also would have been stained with blood. Neither the blood stained clothes of PWs5 to 7 were recovered at the time they were examined by the police nor were the blood stained clothes of A3 seized on his arrest. Even though the deceased was taken on a push cart to a hospital, after the alleged attack, neither the push cart nor was the blood stained portion of it seized during the course of investigation.
In our considered view, the lapses, if any, of the investigating officer on these counts are not sufficient to disbelieve the participation of A1 and A3 in the commission of the crime and the presence of the PWs 5 to 7 at the scene, in view of the reliable ocular evidence, which is trustworthy.
Thirdly: It is further contended as follows: The deceased and LW11, [ENTITY], the daughter of A1, were having a love affair since about 7 or 8 years prior to the incident of murder; this aspect coupled with the evidence of PW1 that A1 beat his son at Youth Office long prior to the incident of murder would indicate that there is no motive for the accused to do away with the life of the deceased and that the distance of time from the alleged incident spoken to by PW1 and the offence of murder makes it manifest that there is no motive; the non examination of LW11, [ENTITY], is fatal to the case of the prosecution she being a witness to prove the motive. PW1 also stated that his son, the deceased, embraced Muslim religion. PW12 is an agnate of A1; LW11, [ENTITY], the daughter of A1, is no other than the niece of PW12. His attendance at the time of marriage and as a witness to the marriage would show that the family of A1 is not opposed to the inter religion marriage and that therefore there is no motive as sought to be pressed into service by the prosecution.
In the first place, LW11, [ENTITY], is no other than the daughter of A1. Admittedly, the deceased married LW11, [ENTITY], and their marriage was registered in the Sub-Registrars Office as is evident from Exhibit P20, the copy of marriage certificate, dated 16.04.2004, and the evidence of PW21, Sub- Registrar. Immediately thereafter, that is, on 29.04.2004, LW11, [ENTITY], the daughter of A1, filed a kidnap case against the deceased and others and on that a case in [CASE NUMBER] was registered. This fact is elicited in the cross-examination of PW1. If really there were no serious disputes and harsh feelings on account of inter religion marriage between the deceased and LW11, [ENTITY], the daughter of A1, she would not have filed the said case against the deceased. In the circumstances, when LW11, [ENTITY], is acting against the interests of the deceased just prior to the date of offence and is under the influence of her father, her non examination by the prosecution is not going to advance the defence any further. It is no doubt true that PW12 is related to A1 as in his evidence he has stated that LW11, [ENTITY], was his niece. The contention that because he is an agnate and as he was present at the time of marriage, the family of A1 is not opposed to the marriage and hence, there is no motive for the offence cannot be accepted for the reason that the evidence shows that the marriage was performed much against the wishes of A1 and his family. The deceased married LW11, [ENTITY], in the Sub-Registrars office and the said marriage was not attended by the parents of LW11, [ENTITY], is proof positive of the strong ill-feelings, which A1 and his family had against the deceased. Further, PW12 stated that the deceased is his childhood friend. Therefore, his evidence that the deceased and LW11, [ENTITY], came to him and asked him to stand as a witness in Sub-Registrars Office for their inter religion marriage and that he along with others went to Sub-Registrar Office, Peddapally, in a car and signed as a witness in the Sub-Registrar Office and that he came to know about the death of the deceased within ten minutes after the incident and that by that time he went there, the police were present cannot be discarded. The case on hand is not one based on circumstantial evidence and hence the proof of motive is not at all necessary. In any view of the matter, the ocular testimony of the direct witnesses cannot be discarded on mere assumptions and surmises.
Fourthly: The further submissions are as under: In Exhibit P1, report, PW1 made a reference to three of the accused and one unknown person as the assailants. How the 4th accused was identified as one of the assailants is not borne out by the record. The offence took place at 10:30 PM, that is, in the night and there is no evidence about the visibility at the scene of offence. The identification of the assailants at that dark hour of the night is impossible. Hence, the evidence that the eye witnesses identified the accused is highly unbelievable. The deceased is a member of Amma Youth Association. At that time of the alleged incident of murder, municipal ward elections were scheduled to be held after the time for nomination was over. There are six lakh voters in the locality and the atmosphere is charged. The accused would not have chosen such a busy place like Swathantra chowk, if really they wanted to do away with the life of the deceased. The deceased, who is the President of the association, is actively participating in the election campaign. Hence, there was a possibility for attack on him by anybody other than the accused due to political rivalry. In support of the said contention reliance is placed on the decision in Shaik Riyaz @ Giddu v. [ENTITY] .
In the cited decision, this Court acquitted the accused inter alia on the ground that the place of occurrence is a busy bus stand apart from being a market place and that the deceased himself was a hamali and a strong bodied person and that he was in the company of his brother and other hamalies and that in the circumstances one naturally expects resistance if not overpowering of solitary accused and that though PWs1 to 3 shifted the deceased in an auto no blood stained clothes preserved from them are sent for examination. In the considered view of this Court, the judgment in the cited case turned on the facts peculiar to that case. In the case on hand, the accused are four in number and the prosecution by examining direct witnesses adduced credible evidence to sufficiently establish not only the motive but also the attack by A1 to A4 on the deceased. Further, PW5 knows the deceased as a person of his locality though he has no close friendship with the deceased and he also knows the names of all the accused 1 to 4 since 6 or 7 years, as per his evidence. PW5 categorically stated that he knows the names of all the accused since 6 or 7 years. PW6 is the friend of the deceased and he knows A1 to A4 by names since his childhood, as per his evidence. PW7 also knows the accused and the deceased, as per his testimony. Further, the incident as per the version of the prosecution witnesses occurred at Swathantra Chowk area, which is obviously a busy centre/junction. There is no cross-examination of these witnesses as to how they identified the accused at that hour of the night. There was no cross examination on visibility as well. A careful reading of the evidence of PWs5 to 7 would show that the accused, particularly A1 to A3 are not unknown to them.
A4 is no other than a worker in the brick kiln of A1. Medical evidence shows that the assailants inflicted more than a dozen injuries upon the deceased. It is also borne out by evidence that the incident proper took place for about 5 to 10 minutes and that all the accused came on a scooter and fled away on a scooter after the incident; therefore, it is clear from the evidence that the accused stayed there for quite some time and hence, it is not hard for the acquainted witnesses to identify A1 to A4 when they attacked the deceased in their presence. Dealing with the visibility aspect, it is to be noted that the assailants, who ever they might be, spotted and singled out the deceased from out of the persons present there and then attacked him alone. This fact that the assailants could identify the deceased at that hour of the night lays bare that there was sufficient visibility/light at the scene at the time of the incident. Therefore, there is every possibility for the witnesses present to identify the assailants as the accused, with whom they are having prior acquaintance. Therefore, the contentions of the learned counsel, which are not meritorious, do not find approval of this Court.
Finally, keeping in view the contentions advanced on behalf of A1 and A3 we have carefully gone through the cross-examinations of these witnesses done on behalf of the accused. The statements of PW5 like he did not observe the persons as they came from back side and attacked the deceased and that the incident occurred for 5 to 10 minutes and that they raised hue and cry saying champuthundu, champuthundu (killing killing) but due to fear the residents of locality did not come out of their houses but LW7, [ENTITY], only came there and that one or two pedestrians were moving at that time only strengthen his version when considered in entirety. Similarly the statement in the evidence of PW6 that the deceased is his friend and that they have common friends including PWs5 and 7 and that he was not used to going to the house of the deceased and that he does not know the family members of the deceased and that he came to know about the particulars and the names of the members of the family of the deceased six months after the incident and that he did not state before the police that he does not know about the love affair of the deceased when he was examined by the police do not dislodge the bottom line of the case of the prosecution, in our considered view. Similarly, the statement of PW7 that he does not know the love affair of the deceased with the daughter of A1 till he saw the news item in a newspaper or his further statement in cross examination that he cannot specifically tell where the deceased was actually walking while going along with PWs5 and 6 at the time of incident also do not undermine the veracity of his statement in regard to the incident when his evidence is read in entirety. On a careful evaluation of the whole of evidence of PWs5 to 7, we are of the considered view that no important points are gained in their respective cross examinations to dislodge the version of the prosecution as spoken to by these witnesses. In fact, all these witnesses maintained their stand consistently in regard to the actual attack in which A1 to A3 caused stab injuries on various parts of the deceased and A1 and A4 caused a head injury with a boulder.
8. Before drawing curtains, it is necessary to deal with the further contentions based on certain precedents.
(i) The decisions in (1) [ENTITY] v. M. Madhusudhan Rao ; (2) [PRECEDENT] ; (3) [PRECEDENT] ; (4) [PRECEDENT] ; (5) [PRECEDENT] ; and (6) [PRECEDENT] are relied upon by the learned counsel on the aspect of delay in lodging the FIR and in support of the contention that the report is a result of embellishments and exaggerations and is a creature of an after thought and lack of spontaneity in the report. The decision in (1) [PRECEDENT] ; is relied upon on the aspect of motive. Placing reliance on the above cited decision it is first pointed out that the prosecution claims that it established that the occurrence is an off shoot of grudge that A1 and his party had against the deceased on account of the inter religion marriage between the deceased and the daughter of A1 much against the will of A1. It is next pointed out that in the evidence of PW1 it was elicited by the defence to the effect that wife of PW7, [ENTITY], was by then contesting in Municipal Ward Elections and that PW1s deceased son was supporting her in the said elections and that one [ENTITY] has contested against the wife of PW7 and that the family of the accused was supporting the said [ENTITY] in the said elections. Basing on the two instances from the evidence, it is urged as follows: There is not only a motive (allegedly) but also, political rivalry and that on account of the said alleged motive and political rivalry the case was foisted against the accused after deliberations. Further, PW7, strongly supported the case of the prosecution. The motive being a double edged weapon, it is obvious that, after due deliberations, the accused are falsely implicated on the death of the son of PW1. Therefore the delay in lodging the first information with the police by PW1 and the motive, which is a double edged weapon and which cuts both ways, cast a shadow of doubt on the case of the prosecution.
In the case on hand, the incident of murder of the deceased, who is the son of PWs1 and 2, took place at about 10:30 PM in the night and PW1 lodged the report with the police on the next day at 01:00 AM. Hence, there is no delay in lodging the FIR. There was also no delay in the FIR reaching the Court of the learned Magistrate. Further, the accused also could not show that any prejudice has been caused to them on account of the alleged delay in lodging the report and that the said alleged delay casts a doubt on the prosecution case. Enmity is a double edged weapon providing motive both for the offence as well as for false implication. Therefore, we have scrutinised the evidence with care so that neither the guilty party wrongly escapes on the plea of enmity, nor an innocent person gets wrongly convicted on that basis. The direct evidence in the case amply corroborated by the motive of the accused, positively points out the intention of the accused to murder the deceased. Since, murderous assault is established by clear ocular evidence, presence or absence of motive pales into insignificance. The submission of the learned Public Prosecutor that there is no reason for the parents of the deceased to leave the real culprits and falsely implicate the accused in this case also has its own merit. Therefore, we see no acceptable force in the contentions of the defence.
(ii) The decisions in [ENTITY] and others v. [ENTITY] ; [ENTITY] v. State of Haryana and another ; and State of UP v. [ENTITY] and others are cited on the aspect of appreciation of evidence of eyewitnesses. In [ENTITY] case, the facts disclose that there was a free fight between two groups on account of political rivalry and in that case no independent witness was examined. In [ENTITY] case, there was a deliberate change in the statements of material witnesses during trial to suit the medical evidence and therefore the veracity of the prosecution case was doubted. In [ENTITY] case, the Supreme Court found material discrepancies in the averments made in the FIR by PW1 and his deposition on one hand and the depositions of PWs2 and 3 on the other and therefore the Supreme Court found that the accused therein are entitled to be acquitted.
Perusal of the decisions thus shows that the decisions turned on the facts of the cases cited. In the case on hand, we have meticulously gone through the evidence and referred to the relevant gist of evidence of the material eyewitnesses and examined their evidence in juxtaposition with the remaining evidence of the prosecution and recorded our satisfaction that the presence of the eyewitnesses (PWs5 to 7) at the scene is probable and that their evidence is reliable. Therefore, the decisions cited are not helpful to the defence.
(iii) The decisions in (1) [PRECEDENT] ; (2) [PRECEDENT] ; and (3) [PRECEDENT] are relied on the aspect of recovery of material objects.
Dealing first with the weak piece of evidence related to recovery of cell phone alleged to be that of A3, we have already recorded reasons and held that even though the recovery evidence related to MO5, cell phone said to be of A3, is discarded, there is otherwise sufficient and credible evidence showing the complicity of all the accused, including A3. Dealing next with the discovery of MOs 10 & 11, knives, PW17 is the panch witness in whose presence police recovered MO10, knife, and MO11, knife, under the cover of Exhibits P16 & P17, recovery panchanamas, pursuant to the confessional disclosure statements of A1 and A2 leading to the discovery of the same. For the confession of the accused to be admissible under [SECTION] of the [ACT], it is necessary that such part of the confession should lead to the discovery of a fact referred to by the accused in his confession. In the instant case the prosecution proved that the information given by the accused 1 & 2 has led to the discovery of the knives; indeed, according to PW17s testimony A1 stated that he concealed the Knife under husk near Godavari Bridge and so saying he showed the place where the knife was concealed by him; similarly, A2 stated that he concealed the knife under husk near Godavari River and so saying pointed the place and produced the knife from that place. Thus, the information tendered by the accused led to the discovery of a fact and such discovery is the direct outcome of such information. The said information furnished by A1 & A2 are distinctly connected with the discovery of a fact and such discovery of a fact related to the commission of the offence. The discovery of the facts are relevant as the police had not previously learnt about the said facts from other sources and the knowledge of the police can solely be attributed to the information received from the accused 1 and 2. Hence, we consider it safe to accept that the weapons of offence, knives (MOs 10 & 11) are recovered in pursuance to the disclosure statements said to have been made by the appellants, A1 and A2.
(iv) The decisions in (1) [PRECEDENT] ; (2) [PRECEDENT] ; and (3) [PRECEDENT] are relied upon to show that the statements of witnesses recorded by a learned Magistrate under [SECTION] [ACT] are not substantive pieces of evidence and such statements cannot be relied upon.
There is no dispute with the legal position. In the case on hand, the prosecution did not rely upon such statements of the witnesses but only relied upon the direct evidence adduced before the trial Court to bring home the guilt of the accused.
(v) Reliance is placed on the decisions in [PRECEDENT] ; [PRECEDENT] ; [PRECEDENT] ; and [PRECEDENT] on the aspect of medical evidence.
No doubt, the Doctor of the Mamatha Hospital, before whom the dead body was first brought, did not give a medico-legal intimation to the police after he declared that the deceased was brought dead. That failure on the part of a medical officer of a private hospital is not sufficient to doubt the veracity of the well established prosecution case.
(vi) Sri [ENTITY], learned counsel, relied upon the decision in [PRECEDENT] to show that the prosecution as well as the Presiding Officer of the trial Court failed in their duty to elicit from the medical witness his opinion as to whether or not all the stab injuries found on the deceased could have been caused with MOs10 & 11, knives, and the head injury with MO1, cement stone.
As rightly contended, the information as to whether or not the injuries on the body of the deceased except the injury on the head could have been caused by the knives and whether or not the head injury could have been caused with the MO1, stone, ought to have been elicited by the prosecution or by the learned trial Judge from the Doctor, PW22, who conducted Post Mortem examination on the dead body of the deceased. Nevertheless, in the cited decision, it is held that failure to do so may sometimes cause aberration in course of justice. In the case on hand, it is possible to say from the evidence on record that the stab injuries are possible by knives and the head injury is also possible by MO1, stone. Therefore, such lapse on the part of the prosecution and as well as the Presiding Officer of the trial Court, is not fatal to the case of the prosecution, more particularly, as the accused are not disputing the homicidal death of the deceased but are only contending that they are not the culprits.
(vii) Placing reliance on the decisions in [PRECEDENT] ; and [PRECEDENT] and while reiterating that the alleged offence had taken place when PW7, the deceased, PW5 and PW6 were talking near Swathanthra Chowk T-junction, it is contended as follows:
There was rivalry between the above said persons on one hand and the rival group on the other and that when the entire evidence is looked at carefully it reflects that the offence is not pre-planned and that the offence committed is culpable homicide not amounting to murder and that the appeal deserves to be allowed and that instead of under [SECTION] [ACT] the appellants/A1 & A3, shall stand convicted for the offence of culpable homicide not amounting to murder punishable under [SECTION] [ACT] and that the sentence has to be reduced accordingly.
This contention of the accused is only required to be stated to be rejected. In deed, a careful analysis of the evidence brought on record, which is trustworthy, unfalteringly reveals that the instant case is a clear case of murder and that the accused 1 and 3 are therefore liable to be punished under [SECTION] [ACT] for the offence of murder.
9. Having thus considered all the contentions of the accused 1 and 3 we are of the considered view that none of the contentions advanced are sufficient to put out of place the well established case of the prosecution. To sum up in one sentence, there is a ring of truth in the evidence brought on record to bring home the guilt of the accused.
10. Having regard to the reasons aforesaid, we are satisfied that the evidence brought on record is enough to safely hold that the prosecution sufficiently and beyond reasonable doubt brought home the guilt of the accused for the offences with which the accused A1 and A3 are charged and that there are no grounds calling for interference with the well considered judgment of the Court of Session.
11. In the result, the [CASE NUMBER] is dismissed confirming the conviction and the sentence imposed upon them in [CASE NUMBER] on the file of the Court of the learned IV Additional Sessions Judge (Fast Track Court), Karimnagar.
JUSTICE [ENTITY] JUSTICE [ENTITY] 01.09.2016