THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL APPEAL No.1127 of 2007 Dated:- 13th April, 2011 Between:- Matangi Raja Rao …Appellant AND State rep by the Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL APPEAL No.1127 of 2007 JUDGMENT:-(Per Hon’ble Sri Justice B.Chandra Kumar) The appellant herein, aggrieved by the judgment dated 15.05.2007 passed in S.C.No.213 of 2005 by the I Additional Sessions Judge, Krishna at Machilipatnam, finding him guilty for the offence punishable under Section 302 IPC and convicting and sentencing him to undergo Rigorous Imprisonment for life, filed this appeal. Hereinafter, the appellant herein will be referred to as the accused, for the sake of convenience. The accused – Matangi Raja Rao was living with the deceased – Jaimunnisa @ Matangi Jayamma since twenty years and they were living as wife and husband. P.W.3 – Matangi Bhaskar is the son of the deceased through her first husband. PW.3 along with his friend Rambabu were tenants in a portion of the house of P.W.1 – V. Krishna Rao. P.W.2 – V. Dhanalakshmi is the wife of P.W.1. Hymavathi, Kumari and Ramu were neighbours of PW.3. The accused and deceased started living with PW.3 just three or four months prior to the date of this incident. P.Ws.1 and 3 were working in Gemini Tooth Powder Company, Machilipatnam. One Ram Mohan Rao was the proprietor of the said Gemini Tooth Powder Company. Murali Krishna Kumar was having some financial dealings with said Ram Mohan R ao. He was also working in Gemini Tooth Powder Company previously. As the accused and the deceased were quarrelling, P.W.3 asked them to live peacefully in his house or else to live separately. According to P.W.3, the accused himself went away from his house and was living separately. P.W.1 – V. Krishna Rao used to come to his house for his lunch in the afternoon between 01:00 P.M. to 02:00 P.M. On the date of offence, he came to his house for lunch and at about 03:45 P.M. when he was about to go out, the accused came to the house of P.W.3. Then PW.1 heard quarrel between the accused and the deceased for about ten minutes. When he heard the cries of the deceased, he, along with his wife P.W.2 – V.Dhanalakshmi, went to the portion of the deceased. He had seen the accused stabbing the deceased with knife and also the deceased trying to ward off the blow with her left hand. According to PW.1, on hearing cries of deceased, Hymavathi, Kumari and Ramu also came there. P.W.1 specifically deposed that he had seen the accused stabbing the deceased with knife on the left side of her chest. On seeing P.W.1 and others, the accused went away from the place carrying the knife. The blood of the deceased fell on the floor and also on the clothes of the accused. The deceased died immediately. P.W.1 enquired about P.W.3 – the son of the deceased and after learning that P.W.3 went to Guntur, he went to Inaguduru Police Station and presented Ex.P.1 complaint. Basing on the said complaint, the Sub-Inspector of Police, Inaguduru Police Station, registered a case in Crime No.140 of 2002 under Section 302 IPC. Then, P.W.8 – P.Sudhakar Reddy, Inspector of Police, Bandar Town, visited the scene of offence, examined P.Ws.1, 2, Hymavathi, Rambabu and Kumari and recorded their statements. He had also posted a guard at the scene of offence. Again on 29.08.2002, he visited the scene of offence and observed the scene of offence in the presence of mediators and prepared Ex.P.3 – observation report of the scene of offence. He had also seized the blood stained cuddapah slab and controlled piece of cuddapah slab, M.Os.9 and 10 respectively and got the scene of offence photographed, prepared a rough sketch of the scene of offence under Ex.P.10. Then he also held inquest over the dead body of the deceased in the presence of P.W.5 – R. Jagan Mohan Rao and two others and also seized the clothes of the deceased during the inquest. Then he examined P.W.3 and other witnesses and recorded their statements. P.W.5 – R. Jagan Mohan Reddy is the retired V.A.O. and he deposed that he was present at the time of preparing the scene of observation by P.W.8 and also at the time of inquest and that he signed in Ex.P.3 – Scene of Observation Report and Ex.P.4 – Inquest Report of the deceased. P.W.7 – Y.Bhogendra Rao is the photographer who had taken the photos of dead body of the deceased at the scene of offence, as per the directions of the police. Ex.P.8 are the six photographs. P.W.6 – Dr. A. Srinivasa Rao is the Civil Assistant Surgeon in the Government Hospital, Machilipatnam. On 29.08.2002, at about 12:30 P.M., he received a requisition from the police to conduct post- mortem examination over the dead body of the deceased. Accordingly, he conducted the post-mortem examination and found the following injuries:- 1. Incised wound on the left cheek which is 2 ½ inches length. 3/4th inches in width and bone deep, which is starting from 2 inch below the pine of left ear extending to 2 inches above the angle of the mouth, which is obliquely present. 2. A curved incised would on the left upper arm which is 3 ½ inch in length and 1 ½ inch in depth muscle depth underlying the muscle partially obliquely 3 inches above the left wrist. 3. A carved incised would on the left wrist 2 ½ inches in length ½ in width bone deep, which is obliquely present on the dorsum of the left wrist extending towards internal side of the wrist and middle finger. 4. An incised elliptical injury on the upper arm of the left hand which is 3 ½ inches in length, 1 ½ inches n width Fascia deep which is extended towards centre of the left breast, 7 inches in length. 5. A stab injury on the left breast 1 ½ inches in length 3/4th inches in width obliquely having tail on the injury about ½ inch in the skin subcutaneous fat, muscle, bone (fracture of the 3rd rib) entering into the pericardial cavity, piercing the Aorta and extended into the right atrium. P.W.6 further opined that injury No.5 is fatal and sufficient to cause the death of the deceased and internal injuries of the heart is corresponding to injury No.5. He had also deposed that injury No.1 is possible with MO.1 knife. P.W.1 also identified M.O.1 as the knife used by the accused at the time of commission of offence. However, P.W.6 opined that injuries 2 and 3 are possible with a curved object like sickle and not with an object such as M.O.1 – Knife. Besides P.W.1, his wife V.Dhanalakshmi was also examined as P.W.2. She deposed that on hearing the cries of the deceased, she followed her husband – P.W.1 to the portion of the deceased and she had seen the accused stabbing the deceased with knife and the deceased trying to ward off that blow. She had also deposed that the accused hit the deceased on her left hand, face and left side of the chest. She had also deposed that after stabbing the deceased, the accused went away with the knife. She had also deposed that Hymavathi, Kumari, Ramu, Sambasivarao, Tekki Amarnadh and Rambabu reached the scene of offence just behind them. P.W.4 – V. Pullaiah is the resident of Circlepet, Machilipatnam. He does seasonal business and he knows the accused. Previously he was also working in Gemini Tooth Powder Company, Machilipatnam. According to this witness, P.W.3 was working under him and that through P.W.3, he got acquaintance with the accused. According to him, on 30.08.2002 at about 08:30 P.M., while he was at his house, the accused came and made confession about the commission of this offence and further told that he was apprehending torture by the police and, therefore, he was not able to decide what he had to do. P.W.4 reduced the statement of the accused into writing and took him to the police station and handed over the confession statement of the accused and the accused to the police. Murali Krishna Kumar has also accompanied P.W.4 to the police station. Then P.W.8 – A. Sudhakar Reddy, Inspector of Police, Bandar Town, examined P.W.2, Murali Krishna Kumar and recorded their statements and held inquest over the dead body of the deceased in the presence of P.W.5 and another and affected the arrest of the accused and recorded the confession statement of the accused. He further deposed that the accused led the police party and mediators to a thatched shed situated at National College, Machilipatnam, and took out a knife and blood stained clothes from the shed and produced before him, which were seized by him under Ex.P.6 – Panchanama. M.O.1 is the blood stained knife 15” length with a handle of 5”, M.O.2 is the blood stained black colour blouse, M.O.3 is the blood stained snuff colour sari, M.O.4 is the Faded light green colour petty- coat (longs), M.O.5 is the blood stained while colour terry cotton pant, M.O.6 is the Full hands maroon colour polyster shirt, M.O.7 is the White Colour Company Cut Banian and M.O.8 is the cotton towel. All the material objects were sent to the Regional Forensic Science Laboratory, Vijayawada, on 16.09.2002. Ex.P.11 is the letter of advice with requisition letter. Ex.P.12 is the report of the Regional Forensic Science Laboratory, Vijayawada dated 30.10.2002, which reveals that human blood was detected on items 1 to 9. Item No.1 is the Cuddapah slab, Item No.2 is the torn black coloured blouse, Item No.3 is the torn multicolored flowers designed polyester saree, Item No.4 is the faded light green coloured cotton petty coat, Item No.5 is the knife (MO.1), Item No.6 is the white coloured Terri cotton pant (MO.5), Item No.7 is the maroon coloured self stripes designed full hands polyester shirt (MO.6), Item No.8 is the multicolored checks designed cotton towel (MO>8) and Item No.9 is the white coloured company cut banian (MO.7), all with darn brown stains. Though the blood group could not be detected, but human blood was found on the clothes of the deceased and also on the clothes of the accused and on knife used by the accused in commission of the offence. P.W.5 also deposed that he was also present at the time of recording of the confession statement of the accused and recovery of the material objects at the instance of the accused. After completing investigation, PW.8 laid charge sheet against the accused. The learned I Additional Sessions Judge, Krishna District, after hearing both sides framed charges against the accused for the offences punishable under Sections 449 and 302 IPC. The accused pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution has examined PWs.1 to 8 and got marked Exs.P1 to P12 and MOs.1 to 10. Then the accused was examined under Section 313 Cr.P.C., and he denied the incriminating material appearing against him in the evidence. Except marking Exs.D1 and D2, relevant portions in 161 Cr.P.C statements of PWs.2 and 3, the accused has not examined any witness on his behalf in support of his case. The learned I Additional Sessions Judge, on appreciation of the entire oral and documentary evidence, held that PWs.1 and 2 are independent witnesses and their presence at the scene of offence cannot be disbelieved and that their version is inspiring confidence and that their evidence has been corroborated with the circumstantial evidence. It is also observed that the accused did not disown the clothes MOs.5 to 8 and that human blood was found on those clothes. Holding so the learned I Additional Sessions Judge found the accused guilty of the offence punishable under Section 302 IPC and convicted him as stated supra. Mrs. B. Vasantha Lakshmi, learned counsel for the appellant/accused submitted that the accused has been falsely implicated in this case at the instance of one Murali Krishna Kumar. It is also submitted that though said Murali Krishna was cited as a witness by the prosecution, he was not examined by the prosecution. It is her submission that PWs. 1 and 3 and Murali Krishna Kumar were all working together under one Rama Mohan Rao and that PW.4 was also working along with them in Gemini Tooth Powder Company and all of them joined together and falsely implicated the accused in this case. It is also her submission that some unknown offender committed the offence but taking advantage of the situation at the instance of Murali Krishna Kumar, PW.1 and others falsely implicated the accused in this case. Her second submission is that PW.2 had not witnessed the occurrence and Ex.D1 shows that when she was examined by the police she had stated that by the time she went to the portion of the deceased, the deceased had already fallen on the ground. It is also her submission that PW.1 did not whisper about the presence of PW.2 in Ex.P1. Her next submission is that the evidence of Doctor, who conducted post-mortem examination clearly shows that the injuries 2 and 3 are not possible with MO.1 and they are possible with a curved knife and this shows that the medical testimony is inconsistent with the ocular testimony and thereby makes the evidence of PWs.1 and 2 unbelievable. It is also her submission that the recovery of MOs.5 to 9 is doubtful and that the alleged extra judicial confession statement said to have been made by the accused is also doubtful. It is also her submission that except PWs.1 and 2, the other persons, who are said to have reached the scene of offence attracted by the cries of the deceased, are not examined and non-examination of material witnesses is fatal to the case of the prosecution. Sri Vinod Kumar Deshpande, learned Public Prosecutor, submitted that the accused was suspecting the character of the deceased and that there were frequent quarrels between the accused and the deceased and taking advantage of the loneliness of the deceased, the accused brutally killed the deceased. His main submission is that PWs.1 and 2 are the independent witnesses and merely because they are the landlords of the house in which PW.3 was residing as tenant, it cannot be said that they are interested witnesses. It is also his submission that merely because PWs.1 and 3 and Murali Krishna Kumar were working together or that PW.4 had previously worked along with them, that does not mean that all the witnesses interested or tried to implicate the accused falsely in this case. There was no need to implicate the accused falsely in this case. His main submission is that the evidence of PWs.1 and 2 is clinching and the recoveries of knife and clothes at the instance of the accused, which were stained with blood and the report of the RFSL showing that those clothes and knife contained human blood establishes that it is the accused who had committed the offence. His main submission is that unless the accused was the culprit there was no chance of getting his clothes becoming stained with human blood and there was no reason for him to hide those clothes and knife. Thus, his submission is that the ocular evidence of PWs.1 and 2 and the evidence of PW.4 with regard to extra judicial confession and the recovery of material objects at the instance of the accused all put together establish the guilt of the accused beyond reasonable doubt. The only point that arises for consideration is whether the prosecution has established its case? PW.3 is the son of the deceased. He was not at his house at the time of occurrence. On that day he went to Guntur on his job purpose. The evidence of PW.3 reveals that he himself and his friend Rambabu were living in one portion of the house of PW.1. Three or four months prior to the date of incident, the deceased and the accused came and started living with him. The accused used to quarrel with his mother in his absence and about one month prior to the date of incident the accused went away from the house. His evidence reveals that the accused was the second husband of the deceased and that the accused is not his natural father. According to him, when he learnt that the accused and the deceased were frequently quarreling, he asked them to live peacefully in his house or else to live separately. Ex.D2 reveals that he had stated before the police that since the accused quarreled with the deceased suspecting her character, himself and the deceased sent away the accused from his house. It is not a material contradiction because PW.3 had categorically deposed that when the accused and the deceased frequently quarreling, he asked them to live peacefully or else asked the accused to go away from there (leave his house). Though he has denied the suggestion that his mother and Murali Krishna Kumar were having illicit intimacy, but the evidence of PW.3 establishes that the accused and the deceased were frequently quarreling. Though there is no evidence to show that the accused was suspecting the character of the deceased, but even in the absence of proof of motive the prosecution may establish its case when there are direct eye witnesses. PW.1 is the owner of the house. In one portion of the said house PW.3 and one Rambabu were living. Then the accused and the deceased joined them just three or four months prior to the date of the occurrence. According to PW.1, on the date of offence, he came for lunch and was in his house at about 3.45 PM and when he was about to go he heard the cries of the deceased. According to him, he rushed to the portion of the deceased and he saw the accused stabbing the deceased with knife and the deceased trying to ward off the blow with the left hand. He categorically deposed that he has seen the accused stabbing the deceased with a knife on the left side of her chest. According to him, his wife PW.2 followed him and one Hymavathi, Kumari and Ramu also reached there just behind them. According to him, the accused on seeing them ran away from the scene of offence carrying the blood stained knife with him. It has to be seen that PW.1 has categorically deposed that the blood of the deceased fell on the floor and also on the clothes of the accused. It has to be seen that on the same day at about 6.00 PM he went to the police station and lodged a complaint as in Ex.P1. Admittedly, the son of the deceased PW.3 was not at Machilipatnam on the date of incident. The only attack made against this witness is that he is an interested witness. According to the learned counsel for the accused PWs.1, 3, 4 and one Murali Krishna Kumar were working in Gemini Tooth Powder Company and PW.1 lodged a report against the accused under the influence of Murali Krishna Kumar. It was also suggested to him that he was not at his house at the time of occurrence. Merely because PWs.1, 3, 4 and Murali Krishna Kumar were working together, it does not mean that PW.1 lodged a false report under the influence of Murali Krishna Kumar. It has to be seen that no such suggestion was given to PW.1 that he lodged a report under the influence of Murali Krishna Kumar. Of course, it is elicited in the evidence of PW.1 that Murali Krishna Kumar used to visit the house of the accused and the deceased. Though Murali Krishna Kumar also came to the Court on the day when he was giving evidence and also went to the house of PW.4 on the day when the accused made confessional statement before PW.4 shows that Murali Krishna had shown interest in the case during investigation and trial. But, this does not mean that all the material witnesses came under the influence of the said Murali Krishna. PW.1 deposed that he does not know whether the accused was suspecting that the deceased was having illicit intimacy with Murali Krishna Kumar. We have carefully gone through the evidence of PW.1 and there is nothing on record to disbelieve his testimony. His version has been inspiring confidence. According to PW.2, she had also followed her husband PW.1 and saw the accused stabbing the deceased. The only contradiction marked in her evidence is that she did not state before the police as in Ex.D1 to the effect that by the time they went there, the deceased had fallen on the ground. Even if that version is accepted as true, the evidence of PW.2 proves that she heard the cries of the deceased and that PW.1 also heard the cries of the deceased and he went towards the portion of the deceased and that she also followed him and that she had seen the accused running away with blood stained knife MO.1. Thus, the presence of the accused and PW.1 and the deceased lying with the injuries has been spoken by PW.2. Thus, the evidence of PW.2 is corroborating with the evidence of PW.1. The main attack on the prosecution case is that according to the medical evidence, the injuries 2 and 3 are not possible with MO.1 knife and they are possible with a curved weapon. It has to be seen that when PW.6 was examined, he deposed that the main injury that caused the death of the deceased is injury No.5. The internal injury to the heart is corresponding injury No.5. He has categorically deposed that injury No.5 is possible with MO.1. Injury No.2 is a curved incised wound on the left upper arm which is 3 ½” in length and 1 ½” in depth muscle deep and injury No.3 is a curved incised wound on the left wrist 2 ½” in length and ½” in width bone deep, which was obliquely present on the dorsum of the left wrist extending towards lateral side of the wrist and middle finger. It has to be seen that according to PW.1 the deceased was trying to ward off the blow with her left hand. When there was a struggle and when the deceased tried to ward off the blow, she sustained injuries 2 and 3. It has to be seen that on hearing the cries of the deceased, PW.1 went there and saw the accused stabbing the deceased and the deceased trying to ward off the blows. The possibility of the deceased sustaining injuries 2 and 3 during struggle cannot be ruled out. The Doctor has deposed that incised wounds are possible if a person falls on the edge of sharp cutting weapon or an object. He has also deposed that it is possible when the skin become folded under the cutting edge of object, a single moment of a sharp object may produce a series of incised wounds. So, merely because the prosecution has not proved how the deceased sustained injuries 2 and 3, the other version of the prosecution witnesses cannot be disbelieved. PW.1 has categorically deposed that the accused stabbed the deceased with a knife on the left side of the chest, which became fatal. Though it is a fact that the neighbours of the deceased, who are said to have reached the scene of offence following PWs.1 and 2 are not examined by the prosecution, it is settled law that all the witnesses need not be examined. It is also argued that in Ex.P8 photo the dead body of the deceased was found to be lying near the well. Admittedly, the other photos reveal that the dead body of the deceased was found