IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE NINETEENTH DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1644 OF 2007 Between: Godugu Veeraiah and others … Appellant And State of A.P., rep. by Public Prosecutor, Hyderabad … Respondent This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1644 OF 2007 JUDGMENT: - (Per Hon’ble Sri Justice A.Gopal Reddy) The appellant/A1 along with his father/A2 and mother/A3 were put on trial for the offences under Sections 302 r/w 34 and 307 r/w 34 IPC in Sessions Case No.680 of 2006 on the file of I Additional District Judge, Mahabubnagar. The learned Sessions Judge by the impugned judgment, dated 02.11.2007, while acquitting A2 and A3 from all the charges, convicted the appellant for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.200/-, in default to suffer simple imprisonment for six months. 2. The gravamen of the charge against the accused is that on 15.11.2005 at about 05:00 PM, A1 and A2, who is one of the brothers of the father of Godugu Lingamaiah (hereinafter referred as, “the deceased”), killed the deceased with axe and in the process A3 also caused injuries to the deceased and P.W.1, who is the wife of the deceased, with the same axe near the thrashing floor of the accused in Mukurala village, Kalwakurthy Mandal, resulting in the framing of charges, under Section 302 r/w 34 IPC against A1 and A2 and under Section 307 r/w 34 IPC against A1 and A3. 3. The case of the prosecution is briefly stated as follows: The accused and the prosecution witnesses are residents of Mukurala village, Kalwakurthy Mandal and the deceased was also a resident of the same village. The father of the deceased and A2 are brothers and they had three more brothers. In the partition among them, they got 9 acres of land each. In addition, deceased purchased ¾ share of 2 acres and A2 purchased ½ share in the same land. Consequently, it is alleged that they were having a dispute over that land. The said dispute was also referred to the village elders and they pacified the dispute. While so, on 15.11.2005, the deceased and his wife-P.W.1, noticed some sorcery articles namely two lemons, ‘jidi’ seeds and some needles by the side of their bore well. On the same day, they were alleged to have gone to P.W.6, a neighbouring landowner, at about 02:00 or 02:30 PM and complained. He advised them not to take it seriously. However, at about 05:00 PM, when the couple was going to their house through ‘donka’ and when they reached near the thrashing floor of the accused, A2 attacked the deceased with an axe. When P.W.1 tried to rescue her husband, A2 dealt a blow on her head. Meanwhile, A3 picked up the same axe and attacked her on her chest and back. A1 also hacked the deceased with an axe. When P.W.1 raised cries, P.Ws.2 and 3, who were in their fields, came and found P.W.1 and the deceased lying with injuries. Immediately P.W.3 went to the village and brought a tractor of P.W.4. The injured were taken in the tractor to Kalwakurthy hospital, which is situated opposite to the police station. The deceased expired before he was taken to the hospital. Then the body was taken to mortuary at 07:00 or 07:30 PM. P.W.11-Sub-Inspector of Police received a telephonic information from the hospital that one injured was admitted to the hospital and one person died in connection with some incident. After entering the same in the G.D., he went to the hospital and recorded the statement of P.W.1 under Ex.P1 and registered a case in crime No.137 of 2005 under Sections 302 and 307 r/w 34 IPC. He issued express F.I.R. under Ex.P10 and sent the same to the Magistrate, whose residence and Court were by the side of police station. It is stated that the F.I.R. reached the Magistrate at 08:00 AM on the next day. On 16.11.2005, P.W.10-C.I. of police, whose office is also located in the same premises, received case diary from P.W.11 and took up investigation. During the course of investigation, he visited Mukurala village; conducted scene of offence panchanama under Ex.P4 in the presence of P.W.7-Panchayat Secretary; examined the witnesses; recorded the statements of P.Ws.2 to 5; held inquest over the dead body under Ex.P7-inquest report; arrested A1 to A3 on 19.11.2005 and on their confession, recovered M.O.1-axe and M.O.2-shirt from their possession under Panchanama-Ex.P6; sent the dead body for post mortem examination to Civil Assistant Surgeon, P.W.9. P.W.9 conducted post mortem on the dead body of the deceased and issued post mortem certificate under Ex.P8 opining that the cause of death was due to multiple fractures and head injury and the time of death was 6 to 10 hours prior to the post mortem examination. Further, on 19.11.2005, P.W.9 examined P.W.1 and issued Ex.P9 wound certificate opining that the injuries might have been received 2 to 4 hours prior to his examination. After completion of investigation, P.W.10 filed charge sheet. 3. In support of its case, the prosecution got examined P.Ws.1 to 11 and got marked Exs.P1 to P19 and M.Os.1 to 4. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. on the incriminating evidence produced against him. No oral or documentary evidence has been adduced on behalf of the defence. 4. The learned Sessions Judge, on appreciation of the oral and documentary evidence, found the accused guilty of the charge framed against him and sentenced him to imprisonment as aforementioned. 5. Sri T.Bal Reddy, learned Senior Counsel for the appellant, contends that the entire case is foisted at the instance of P.W.8, who is a practising advocate. P.W.9-the Doctor, who conducted the post mortem examination on the deceased and examined P.W.1, stated that the death might have occurred between 04:00 to 08:00 AM on 16.11.2005 and the injuries received by P.W1 are 2 to 4 hours prior to her examination on 19.11.2005. Therefore, P.W.1 receiving the injuries on 15.11.2005 has not been corroborated with the medical evidence. P.W.1 stated in her evidence that A2 attacked her husband with an axe and when she intervened to rescue the deceased husband, A3 collected the axe and attacked on her chest and back. When A2 was acquitted from all the charges framed, the learned Sessions Judge fell in error in convicting the appellant/A1 for the offence under Section 302 IPC. He further contends that P.W.1 also admitted in her evidence that after obtaining the thumb impression under Ex.P1, police recorded her statement, but she has not stated anything about her admission into the Osmania Hospital, which caused the delay in her examination by the Doctor-P.W.9. The other eyewitness-P.W.3 has not stated before the Investigating Officer-P.W.10 about his witnessing the incident. As per the evidence of P.W.7, the land of P.W.3 is not located in Ex.P5. When P.W.3 admitted in the cross-examination that he was at a distance of 100 metres away from the scene of offence and the ‘Donka’ is also 100 metres away from the place where he was present, it was not possible for him to witness the incident. If the evidence of P.W.3 is excluded from consideration, there is no other evidence to connect the accused with the offence. Therefore, the accused is entitled for acquittal. 6. Learned Public Prosecutor supports the finding recorded by the trial court and contends that the evidence of P.W.1, who is the injured eyewitness, is corroborated with the evidence of P.Ws.2 and 3. He further contends that when the incident had taken place on 15.11.2005 itself the opinion of P.W.9 Doctor that the death might have occurred between 04:00 AM to 08:00 AM cannot destroy the case of the prosecution. The injuries received by the deceased is corroborated with the evidence of P.Ws.1 and 3. 7. In the light of the submissions as referred to above, the point that arises for consideration is: - “Whether the prosecution is able to bring home the guilt of the accused beyond reasonable doubt?” POINT:- 8. P.W.1, who is the injured eyewitness and wife of the deceased, stated that A2 is the brother of his father-in-law Parvathalu. A1 is his son and A3 is the wife of A2 and that there were disputes between the brothers with regard to the partition of the properties. They purchased 2 acres of land in their village under partnership of three persons and their share is 3/4th acre. A2 got ½ acre share in the land and he bore grudge against her deceased husband as he did not allowed to purchase the total 2 acres of land for his share. On the date of incident, she found some jeedi seeds and some needles by the side of their borewell. For some time their borewell was giving trouble and on seeing the needles and seeds, they suspected that some sorcery was played on them. On the date of the incident when she along with her husband were proceeding to their house from their land and when they reached near the thrashing floor of the accused, which is on the way to their house, A2 attacked her husband with an axe. When she went to rescue her husband, A2 dealt a blow on her head. Meanwhile, A3 collected the same axe and attacked her on her chest and back. Meanwhile, A1 hacked her husband with an axe and her husband fell down with injuries. M.O.1 is the axe used by the accused in the incident. M.O.2 is the shirt of A1, which he was wearing at the time of incident. M.O.3 is the blood stained dhoti of her husband. M.O.4 is the shirt. When she raised hue and cry, P.Ws.2, 3 and L.W.3-Kamalamma came to the spot and on seeing them A1 to A3 escaped. Then P.W.3 went to the village and brought a tractor and shifted her husband to Kalwakurthy hospital and soon after going to the hospital, her husband died. She further deposed that police came to the hospital and recorded her statement under Ex.P1. 9. Under Ex.P1, statement recorded by the police in the hospital, P.W.1 stated that when they reached near the paddy fields, A1 came with an axe and hacked her husband on his head and caused injury. When she intervened, A2 father of A1 beat her with an axe on her head and caused injury and in the meanwhile, A3 beat her with the axe on her chest and caused injury. 10. P.W.2, who shifted the deceased to the hospital, deposed that they have a cattle shed by the side of thrashing floor of the accused. On the date of incident at about 05:00 PM, when he was present near his cattle shed, he heard hue and cry from the side of the thrashing floor of the accused and rushed there and found the deceased lying with bleeding injuries on his head and hand. He further deposed that P.W.1 and A1 to A3 were the persons present there. A1 was having an axe in his hand. P.W.1 had injuries on the head and back and she was found lying. Meanwhile, P.W.4 and Kamalamma also came there and P.W.4 went to the village and brought a tractor. All of them shifted the deceased in the tractor to Kalwakurthy hospital. 11. P.W.3, who is one of the eyewitnesses to the incident, deposed that A2 is his junior paternal uncle and the deceased is his cousin. On 15.11.2005 at about 05:00 PM, while he was grazing the cattle by the side of the land of P.W.2, the deceased and his wife were coming with their cattle through Donka to go to their house and they were abusing somebody for planting some needles and jeedi seeds near their borewell. On hearing the murmuring of P.W.1, A3 demanded P.W.1 as to why she was abusing them. Meanwhile, A1 who was present there attacked the deceased with the axe. When P.W.1 came to rescue her husband she was also beaten on the head by A1. On seeing this, himself, P.W.2 and Kamalamma went to the scene. By that time P.W.1 and her husband were lying down with injuries. The accused already left the scene. He further deposed that keeping P.W.2 and Kamalamma at the scene he went to the village and brought the tractor of Narender Reddy and shifted P.W.1 and the deceased to Kalwakurthy hospital. Police came to the hospital and recorded their statement. 12. P.W.7, who is a Panchayatdar to Ex.P4-scene of offence panchanama and Ex.P5-rough sketch of the scene, deposed about seizure of M.O.1-axe by the police on the confession made by the accused. 13. P.W.8, who is an Advocate by profession, deposed that the deceased is the son-in-law of his sister. He also deposed about conducting of inquest by the police on the dead body of the deceased at Government Civil Hospital, Kalwakurthy and his acting as a inquest panch witness and attesting of inquest report under Ex.P7 opining that the deceased died due to injuries caused by axe by the accused. In the cross-examination, he denied the suggestion that only after his going to Kalwakurthy hospital, on 16.11.2005 the complaint was fabricated and the witnesses were planted and that the murder did not take place on 15.11.2005. 14. P.W.9-the Doctor, who conducted the post mortem examination and issued Ex.P8 post mortem report stated that the cause of death is due to multiple fractures and head injuries and that the time of death of the deceased was 6 to 10 hours prior to the post mortem examination. Further, he also examined P.W.1 on 19.11.2005 and issued Ex.P9 wound certificate. He further deposed that the age of the injury is 2 to 4 hours prior to his examination. He admitted in the cross- examination that the death might have occurred between 4 to 8 AM on 16.11.2005. 15. P.W.10, the Circle Inspector of Police, who investigated on registering a crime, also deposed that on 19.11.2005 he went to Mukurala village and apprehended accused Nos.1 to 3 and on their confession, recovered M.O.1-axe and M.O.2-shirt from their possession under cover of Panchanama-Ex.P6 in the presence of P.W.7 and L.W.13. P.W.11, the Sub-Inspector of Police deposed about receiving of telephonic information from the Government community hospital, Kalwakurthy; proceeding to the hospital; recording the statement of P.W.1 under Ex.P1; registering a case in crime No.137 of 2005 under Sections 302 and 307 r/w 34 IPC. 16. The contention of the learned senior counsel is that the oral evidence has not received any corroboration with the medical evidence as the death might have occurred on 16.11.2005, but not on 15.11.2005 as alleged in Ex.P1 or the evidence of P.Ws.1 and 3. We do not see any force in the said submission, which was built up upon the evidence of Doctor, for the simple reason that P.W.8 denied the suggestion that only after his going to Kalwakurthy hospital, on 16.11.2005, the complaint was fabricated and the witnesses were planted and that the murder did not take place on 15.11.2005, which belies the contention that the death might have occurred on the early hours of 16.11.2005 between 4 to 8 AM, as deposed by the Doctor. Further, the scene of offence Panchanama was conducted at 07:45 hours on 16.11.2005 in the presence of P.W.7. 17. As per the evidence of P.W.2, it is clear that A1 was having axe in his hand when he reached the scene of offence, where the deceased and P.W.1 fell down. The evidence of P.W.2 also receives corroboration from the evidence of P.Ws.1 and 3, who are the eyewitnesses to the incident. P.W.2 also witnessed A1 attacking the deceased with an axe and when P.W.2 came to rescue him, she was also beaten on the head by A1, but she has not stated about A2 and A3 hacking the deceased or P.W.1. Further, M.O.1-axe and M.O.2-shirt were seized from the accused under Ex.P6, which were sent to Forensic Science Laboratory and the report of the Laboratory also discloses that the blood group and blood stains on the earth is of the same group i.e., blood as detected on M.Os.1 to 4, but the group of item Nos. 3 and 6 cannot be determined, which corroborated the evidence of the eye witnesses. By this evidence, the prosecution could be able to bring home the guilt of the accused beyond all reasonable doubt. Therefore, the trial court on appreciation of the oral and documentary evidence, rightly found the accused guilty. We see no grounds to interfere with the finding recorded by the trial court. 19. In the result, the Criminal Appeal is dismissed, confirming the judgment, dated 02.11.2007 in S.C.No.680 of 2006, on the file of I Additional District Judge, Mahabubnagar. _____________________ A. GOPAL REDDY, J __________________ RAJA ELANGO, J July 19, 2011 lmv HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1644 OF 2007 19.07.2011 lmv