*THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’ BLE SRI JUSTICE N.R.L.NAGESWARA RAO +CRIMINAL APPEAL No. 809 OF 2007. %27-12-2010 # Kopireddy Nageswara Rao @ Nagayya …Appellant-Accused Vs. $ State of A.P. rep. by Public Prosecutor, High Court of A.P., Hyderabad ….Respondent-Complainant !Counsel for the Appellant: Ms. Naseeb Afsan ^Counsel for the Respondent : Public Prosecutor <Gist : >Head Note: ? Cases referred: 1.AIR 1983 SC 680 2. AIR 1958 SC 22 THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL No. 809 OF 2007 DATED: 27-12-2010 Between: Koppireddy Nageswara Rao @ Nagayya …Appellant-accused And State of A.P. rep. by Public Prosecutor, High Court of A.P. Hyderabad. …Respondent-Complainant THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL No. 809 OF 2007 JUDGMENT: (per THE HON’BLE SRI JUSTICE K.C.BHANU) This Criminal Appeal under Section 374 (2) of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) is directed by the appellant-sole accused against the judgment, dated 28-02-2007 in Sessions Case No.292 of 2005, on the file of the VI Additional Sessions Judge, (Fast Track Court), East Godavari District at Rajahmundry, whereunder and whereby the appellant-accused was convicted and sentenced to undergo imprisonment for ten years and to pay a fine of Rs.300/- in default to undergo simple imprisonment for two months of the offence punishable under Section 307 of the Indian Penal Code, 1860 (for short ‘IPC’); further convicted and sentenced to undergo Imprisonment for five years and to pay a fine of Rs.100/-, in default to undergo simple imprisonment for one month of the offence punishable under Section 326 IPC; further convicted and sentenced to undergo imprisonment for life and also to pay a fine of Rs.500/-, in default to undergo simple imprisonment for six months of the offence punishable under Section 302 IPC and also convicted and sentenced to undergo imprisonment for one year of the offence punishable under Section 323 IPC and all the sentences were directed to run concurrently 2. Brief facts, that are necessary for disposal of the present appeal, may be depicted as follows: P.Ws.1 to 10, 17 and Pedireddy Kondayya (hereinafter referred to as ‘the deceased’) are residents of same neighbourhood. P.W.1 is the wife of the deceased. It is suspected that both the deceased and P.W.1 were encouraging the wife of the accused to go with other male persons to commit illegal activities and they were also responsible for the spoiling of his marital life. As such, the accused bore resentment against he accused and P.W.1. On 23-02-2005 at about 4.00 P.M., when P.W.1 was purchasing eggs from P.W.4, the accused armed with a knife, which is used to cut coconuts, came there shouting that he will kill her. On seeing him, she got frightened and ran towards the cement road. The accused came behind her. At that moment, P.W.2 was coming on his motorcycle. He stopped the accused and asked him as to why he was chasing P.W.1 and also advised him not to do so as she is a lady. Then the accused attacked P.W.2 on his back, due to which, he fell down along with his bike. When he got up himself, the accused again battered him on his back and hands. Thereafter, P.W.2 ran away with bleeding injuries to his house and got his wounds bandaged. P.W.1 observed the attack on P.W.2 and again started running. When she reached the backside of the house of P.W.17 (brother of P.W.2) she slipped and fell down. Then the accused hacked her indiscriminately and gashed injuries to on her back, breast, abdomen, shoulder, nose, wrist etc., P.W.9 cousin brother of the deceased was going towards his fields and when he reached Puntha Road, he saw the deceased was coming on a motor bike along with Vasamsetti Vanamayya and Tekumudi Surayanarayana. On seeing the accused, they tried to turn their bike, but failed and all of them fell down in the fields along with bike. Then the accused hacked the deceased on his head and also on his abdomen. At that moment, P.W.9 interfered and caught hold of the neck of the accused. Then the accused bite with teeth his left hand and escaped in the opposite direction towards Venkanna Temple. Thereafter, with the assistance of some villagers, the deceased and P.W.9 were being shifted in an auto to the hospital. At that time, P.Ws. 1 and 2 were already present in the auto and all of them accompanied by some villagers were taken to the Area Hospital at Ramachandrapuram. P.W.14- Doctor treated P.Ws. 1 and 2 and the deceased and sent intimation to police under Ex.P34. P.W.15-Head Constable, who received Ex.P34 came to the hospital and recorded the statement of the deceased under Ex.P36. Before recording the statement, he did not ascertain the mental condition of the deceased with the doctor and P.W.14 made an endorsement on the statement as Ex.P35 with regard to fit state of mind. As the deceased lost considerable blood, he was not able to speak. The statement of the deceased was recorded with the assistance of an attendant. By the time the statement of the deceased was recorded, he was already under treatment and under the influence of the sedatives. Though endorsement was made by P.W.14 on Ex.P36, he was not present while recording the statement of the deceased. P.W.14 referred all the injured and the deceased to Government General Hospital, Kakinada. P.W.18-Sub Inspector of Police received Ex.P36 statement of deceased and registered the same as Cr.No.13 of 2005 under Section 307 IPC and issued F.I.Rs to all concerned. He took up investigation, reached the scene of offence and prepared Exs.P42 to 44 rough sketch of the scene of occurrence. He got photographed the scene of occurrence through P.W.11. He examined the witnesses on the same day. He secured the presence of mediators and arrested the accused and seized M.O.1 at the instance of the accused. On 26-02-2005, he received Ex.P40-death intimation of the deceased from the hospital. Then he altered the section of law to 302 IPC. L.W.33 conducted inquest over the dead body of the deceased and sent the dead body to post mortem examination. P.W.13-doctor conducted autopsy over the dead body of the deceased and issued Ex.P31 post mortem certificate. After receipt of RFSL report and post mortem report, P.W.19 laid charge sheet. 3. The learned Sessions Judge, framed the following charges against the accused: Firstly: That you on or about the 23rd day of February, 2005 at about 4.00 P.M. in the lane situated by the side of the house of Vattikuti Anantha Lakshmi attempted to kill Janikamma @ Baby w/o Pediredddy Kondayya, the deceased herein by hacking her with the knife indiscriminately and consequently she received bleeding injuries on the right side of her face, right side of abdomen, both hands, on the back and right side breast and thereby committed an offence punishable under Section 307 IPC. Secondly: That you on the same date, time and place as mentioned in charge no.1, voluntarily caused grievous hurt to Rambala Venkateswara Rao by hacking him with a knife on his right shoulder, the back, right fore-arm and right hand fingers and thereby committed an offence punishable under Section 326 IPC. Thirdly: That you on or about the 23rd day February, 2005 at the Puntha road near the fields of Kondayya of Someswaram village while Kondayya, Vasamsetti Vanamayya and Tekumudi Suryanarayana @ Suri coming on the moor cycle and on seeing you, the driver of motorcycle tried to take a turn, all of them fell down and taking it an opportunity, you immediately attacked Kondayya with the knife while using filthy language and he fell down and you again hacked him indiscriminately and succumbed subsequently and committed murder intentionally causing the death of ‘Pedireddi Kondayya’ and thereby committed an offence punishable under Section 302 IPC. Fourthly: That you on the same date, time and place as mentioned in charge no.1, voluntarily caused hurt to Pedireddy Pullayya by biting him on his left fore-arm and thereby committed an offence punishable under Section 324 IPC. When the above charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To bring home the guilt of the accused, the prosecution examined P.Ws. 1 to 19 and got marked Exs.P1 to 46 besides case properties, M.Os. 1 to 8. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same and reported no evidence. 6. The trial Court after considering the oral and documentary evidence available on record, convicted and sentenced the appellant as indicated above. Challenging the same, the appellant preferred this appeal. 7. Now the point that arises for consideration in this appeal is whether the prosecution has proved its case against the appellant of the offences with which he was charged beyond all reasonable doubt? 8. Learned counsel appearing for the appellant-accused contended that the presence of P.Ws. 9 and 10 at the scene of occurrence is doubtful, that there is no need for them to pass through the scene of occurrence and in such a case, they are planted by the prosecution, that their evidence is full of contradictions and improvements, that it is not safe to place an implicit reliance on their evidence, that when P.W.9 allegedly caught hold of the neck of the accused, there is no possibility for the accused to bite with teeth on the elbow of P.W.9, that the oral dying declaration said to have been made by the deceased to P.W.1 has not been spoken to by other witnesses, that at the time of recording the statement by P.W.15, the deceased was unconscious, that the doctor did not specifically state whether the deceased was in a position to speak or not, that therefore the statement Ex.P36 cannot be acted upon, that the other witnesses who are natural witnesses to be present at the scene of occurrence did not support the case of the prosecution, that therefore, the entire case is foisted against the accused with the help of one Nagadevara Suryanarayana, and he is the person who was attending the trial Court during trial and he has got enmity against the accused, that at his instance, police foisted a case, that P.W.9 who went to the hospital did not get himself examined by the doctor and no explanation was given by him as to why he was not treated in the hospital especially when he accompanied P.W.1 to the hospital, that admittedly the doctor examined him two months after the incident and therefore, the evidence of P.W.9 that he sustained bite injury at the time of incident from the accused cannot be accepted, that there are several residential houses located on the either side of the road while P.W.1 was proceeding and also near the place of attack on the deceased, but none of them was examined by the police to show that the accused is the assailant of the deceased, that almost in all houses, telephone facility is available and none of the villagers telephoned to police about the incident and therefore, she prays to set aside the convictions and sentences recorded against the appellant. 9. On the other hand, counsel representing the learned Public Prosecutor contended that the presence of P.Ws.9 and 10 at the time of incident is quite probable and there is no grouse or enmity for them to foist a false case against the accused especially for P.W.10 who is an independent witness, that P.W.15 after receipt of hospital intimation went to the hospital and recorded the statement of the deceased and the doctor made an endorsement in Ex.P36 that the patient was conscious and coherent, that therefore Ex.P36 can be used as evidence so as to base a conviction, that Ex.P36 is very clear that it is the accused who caused injuries with a knife and the medical evidence is completely in corroboration with ocular testimony, that some minor omissions or improvements made by the witnesses do not in any manner affect the main fabric of the prosecution case, that the evidence of P.Ws. 9 and 10 coupled with the recitals in Ex.P36 would clearly go to show that it is the accused and none else, who caused the injuries to the deceased, that the evidence of P.Ws. 1 and 2 coupled with the evidence of P.W.14 would clearly go to show that those injuries were sustained at the hands of the accused, that the trial Court after an elaborate consideration of evidence on record rightly convicted and sentenced the accused and absolutely there are no grounds to interfere with the same. 10. P.W.12 is one of the inquest mediators who was present when police held inquest over the dead body of the deceased. They noticed several injuries on the dead body. Their opinion as to the cause of the death was due to the injuries sustained by the deceased. 11. P.W.13 is the doctor who conducted neeropsy over the dead body of the deceased on 27-02-2005, found the following injuries: 1. A surgically sutured wound of 3 cms in length approximated with two white thread stitches is present on the top of the head on the frontal area of scalp in the midline extending obliquely on to left side. It is 8 cms above the inner and of left eyebrow and 17 cms above the upper attachment of right ear. Reddish brown scab present. On opening the stitches the approximated edges are partly united with organizing blood clots in the wound. 2. A muscle deep spindle shaped incised wound of 4 x 1cm size is present on the inner aspect and back of right forearm 9 cms above the right wrist and 15 cms above the right elbow. Blood clots present in the wound. 3. A skin deep incised wound of 1.5 x ½ cm size is present ½ cm inner and above the lower end of injuryNo.2. Blood clots present in the wound. 4. A skin deep incised wound of 12 x 1 cm size is present on the front of right side abdomen at 9 o clock position. 6 cms away from the umbilicus. Obliquely placed. Blood clots present in the wound. 5. A skin deep incised wound of 10 x 1 cm size is present 4 cms above and parallel to injury No.4. Blood clots present in the wound. 6. An abrasion of 4 x 3 cms size is present. On the front chest in the mid line, 10 cms below supra sternal notch and 6 cms above the xiphoid process and 11 cms inner to the left nipple. Reddish brown scab present. 7. An abrasion of 3 x 3 cms size is present on the middle of back of right buttock. Reddish brown scab present. 8. An organising haematoma of 11 x 8 cms size is present under scalp on mid frontal region corresponding to external injury No.1. 9. A penetrating depressed triangle shaped fracture of 2 x ½ cms size is present in the frontal bone of vault of skull and it is 7 cms above the left eyebrow. 14cms above the upper attachments of left ear and 16 cms above the upper attachments of right ear. The base of the triangle shape of fracture facing towards the top of head and pointed end towards downwards. The same size of bone chip is missing from the place. The cut fractured bone edges are stained with organizing blood clots. 10. A radiating fissured fracture of 6 cms in length is present on the frontal bone of vault of skull extending obliquely down wards on to the left side of frontal bone. The fractured bone edges are stained with organising blood clots. The fissured fracture is starting from the pointed end of the triangular shaped depressed fractured as described in injury no.9. 11. A radiating fissured fracture of 6 cms in length is present on the right parietal bone of vault of skull extending obliquely upwards from the base of triangular shaped depressed fracture described in injury No.9. The fractured bone edges are stained with organising blood clots. 12. Corresponding cut (corresponding to injury No.9) of dural membrane of brain associated cut laceration left frontal lobe is present. Organising blood clots are present in the wound. 13. Diffused subdural and subaraechnoid haemorrhages are present on both the hemisphere of brain with organising sub dural blood clots. He opined that the ante-mortem injuries can be possible by hacking with a knife like M.O.1. The opinion as to the cause of the injuries was due to depressed fracture of vault of skull on frontal bone with corresponding injury to dura and cut laceration of left frontal lobe of brain and he issued Ex.P31 post mortem certificate. Therefore, from the evidence of P.W.13 and the recitals in Exs.P31, it is established beyond reasonable doubt that the death of the deceased is homicidal in nature. Even the accused is not seriously disputing the cause of death of the deceased. 12. Now it has to be seen whether the accused is the assailant of the deceased or not? 13. P.Ws. 9 and 10 are the witnesses to speak about the incident besides the statement of the deceased recorded by P.W.15 as in Ex.P36. Apart from attacking the deceased by the accused, he also said to have attacked P.W. 1 who is none other than the wife of the deceased. Both P.W.1 and the deceased were encouraging the wife of the accused to go with another male person to commit illegal activities and they were responsible for the breaking of the marital life of accused. In order to wreak vengeance against them, the incident is alleged to have taken place according to the case of the prosecution. 14. P.W.1 is the injured witness. According to doctor- P.W.14, who examined P.W.1 on 23-02-2005 found the following injuries: 1.An incised cut injury on right side of face measuring 10 x 4 x bone deep red in colour obliquely situated with clear cut margins spindle shaped. 2.An incised cut injury on right side of abdomen measuring 12 x 4 x 2 cms size obliquely situated. 3.An incised cut injury on left wrist joint exposing tendons and bones measuring 6x 4 x bone deep obliquely situated red in colour. 4.An incised cut injury on left arm measuring 4 x 2 x bone deep obliquely situated red in colour. 5.An incised cut injury on back o chest and right side measuring 6 x 4 x 2 cms, 4 x 2 x 1 cms size. According to the doctor, the injuries 1 and 3 are grievous in nature and injuries 2, 4 and 5 are simple in nature and he issued Ex.P32 wound certificate. As far as sustaining of injuries by P.W.1 is concerned, nothing has been elicited in the cross- examination of P.W.14 to discredit his testimony and the recitals in Ex.P32. So, from the evidence of P.W.14 and the recitals in Ex.P32, it is clear that P.W.1 received grievous as well as simple injuries. 15. On 23-02-2005 while P.W.1 was purchasing eggs from Kadiyala Kantham, the accused came there with a knife proclaiming that he will kill her. Then she started running away and the accused chased her. At that time, P.W.2 was coming on his motorcycle. He stopped his motorcycle and asked the accused as to why he was chasing her and advised the accused that it was not proper on his part to chase a person like woman. Then the accused hacked P.W.2 on his back and also on his both hands. Thereafter, she ran away raising cries. While running from the scene of occurrence, she skid and fell down near the house of P.W.17. Then the accused came there and attacked her indiscriminately causing bleeding injuries all over the body namely, backside, breast, on the abdomen, on the shoulder, on the nose and also on the wrist. Then P.W.2 and P.W.1 boarded an auto and they were proceeding to hospital via Venkanna Babu Temple in Someswaram Village. On the way to hospital, the husband of P.W.1 who was having bleeding injuries boarded the auto and all of them were proceeding to Ramachandrapuram Government Hospital. P.W.1 enquired her husband as to how he sustained injuries and her husband informed her that the accused attacked him with a knife and as a result, he sustained injuries. If the statement of P.W.1 is to be accepted as true, it falls under the ambit and scope of Section 32 (1) of the Indian Evidence Act, 1872, but at the same time, the said oral dying declaration has not been spoken to by P.Ws. 2 and 9 who are admittedly travelling along with deceased and P.W.1 to the hospital from the scene of occurrence. Therefore, the statement of P.W.1 that on questioning her husband as to how he sustained injuries, the deceased informed her that the accused is the assailant and caused injuries with knife cannot be accepted because it appears to be a clear improvement and the statement of P.W.1 lends no support from P.W.2 and P.W.9. Insofar as attack on P.W.1 is concerned, nothing has been elicited in the cross-examination to discredit her testimony. According to her, her statement was also recorded by the Magistrate. But as seen from the record, no requisition was sent to the Magistrate by the hospital authorities so as to record the statement of P.W.1. Therefore, the inadvertent admission made by P.W.1 cannot be taken advantage by the accused by saying that the statement recorded by the Magistrate was suppressed by the prosecution. In view of the fact that P.W.1 is an injured witness, three important circumstances are relevant for the purpose of evaluating the evidence of an injured witness viz., 1) whether in the circumstances of the case, the injuries are caused by the accused, 2) whether P.W.1 received those injuries in the course of same transaction and 3) whether there is strong enmity or hostility for her to implicate the accused. It is not the case of the accused that she received those injuries at some other place, in some other manner and at the hands of some other person. Similarly, there cannot be any mistake of identity or false identity of the assailant of P.W.1 because the incident is alleged to have taken place in a broad day light at 4.00 P.M., Therefore, the possibility of implicating the accused does not arise unless P.W.1 entertained a serious grievance against the accused. In the entire cross-examination of P.W.1, nothing has been elicited so as to disbelieve her statement except eliciting some facts, which are not relevant in issue. Some improvements said to have been made by P.W.1 in the cross-examination are not shown to be fatal to the case of prosecution or in any manner affect the core of her statement. . 16. According to P.W.18, P.W.1 did not state before him that P.W.2 questioned the accused as to why he was chasing her and advised the accused not to chase her as she being a lady; that she received injuries on her nose; that the accused bite P.W.9 with his teeth on his hands; that the accused pulled the deceased from the motorcycle and that her eldest son accompanied them to the Area Hospital, Ramachandrapuram. These omissions are very innocuous and they do not go to the root of the prosecution case. The fact in issue is whether the accused has caused injuries to P.W.1 on the date of incident and whether those injuries can be possible by hacking with a knife like M.O.1. The evidence of P.W.14 is very clear that those injuries can be possible by hacking with a knife like M.O.1. The evidence of P.W.1 is also very clear that it is the accused who hacked her with a knife M.O.1. Further her clothes namely