THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 748 of 2007 JUDGMENT: (per the Hon’ble Sri Justice N.R.L.Nageswara Rao) 1. The sole accused in Sessions Case No.1 of 2006 on the file of the I Additional Sessions Judge, Krishna at Machilipatnam, who was convicted of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, ‘IPC’) and sentenced to undergo imprisonment for life and to pay fine of Rs.100/-, in default to suffer simple imprisonment for one month, is the appellant herein. 2. The case of prosecution, in brief, is that P.W. 2 has three daughters. Marriage of his elder daughter(P.W.8) was performed with the accused, and P.W.1-his second daughter was given in marriage with Vijayaraju (hereinafter referred to as ‘the deceased’). His third daughter P.W.4 was given in marriage with P.W.5. P.W.2 has no sons. The accused and the deceased were residing in side by side houses. The accused was addicted to vices and not taking care of his family members also. On 19.5.2005, as son of the accused by name Rajesh, suffered from ill-ness viz. stomach ache, he was taken to Hospital at Vijayarai and that was without the knowledge of the accused. Therefore, the accused went there and quarrelled with P.Ws.2, 8 and 1. On 20.5.2005 also, as the child again suffered from ill-ness, he was taken to Government Hospital at Eluru. After return from the hospital, the accused picked up quarrel with P.Ws.1, 2 and 8 and also the deceased, and there was a discussion among the family members and some neighbourers, and the accused was warned not to stay at Rangampeta village if he creates such troubles. The accused developed grudge against the deceased because his father-in-law and other elders showed the deceased as a land mark of the character, and left his house at 7.00 PM on that day. In that night, the deceased slept in open place of his house and P.W.1 slept in Varandah. At about 10.00 PM, the accused came to the house of deceased and hacked the deceased indiscriminately causing multiple injuries. The deceased raised cries. On that, P.W.1 came there and on seeing the incident. P.W.1 raised hue and cry. On hearing the cries, P.Ws.4 to 6 rushed to the house of the deceased and witnessed the incident. Thereafter, the deceased was taken to Vijayapuri Hospital, but on the way to the hospital, he died. On the complaint given by P.W.1 on 21.5.2005 at about 9.00 AM, police registered case in crime no.26 of 2005 for the offence punishable under Section 302 IPC and investigated into. During the course of investigation, statements of witnesses were recorded and panchanama of the scene of occurrence was also conducted and inquest was held over the dead body of the deceased. The dead body of the deceased was sent for post mortem examination and during inquest, material objects were seized. On 24.5.2005, the accused was arrested at Ramalingaswamy temple and in pursuance of his confession, knife which was said to have been used in commission of the offence was recovered. Thereafter, the accused was sent for remand. After completion of investigation, the accused was charged for the offence punishable under Section 302 IPC. 3. The case was taken on file as P.R.C. No.35 of 2005 on the file of the Judicial Magistrate of First Class, Nuzvid, and the same was committed to the Court of Sessions. Thereafter, the case was made over to the learned I Additional Sessions Judge, Krishna at Machilipatnam, after numbering the case. 4. The trial Court framed the following charge against the accused. “That you, Vannekuti Venkateswara Rao, on or about the 20th day of May, 2005 at about 10.00 p.m., in Balive village of Masunuru mandal, did commit murder by intentionally (or knowingly) causing the death of Cheeli Vijaya Raju due to family disputes, and that you thereby committed an offence punishable under Section 302 of Indian Penal Code and within the cognizance of the Court of Session.” When the charge was read over and explained to the accused in telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate the case of prosecution, P.Ws. 1 to 13 were examined and Exs.P1 to P12 were got marked, on behalf of the prosecution, besides case properties M.Os. 1 to 6. Contradictions in the evidence of P.Ws. 8 and 9 were marked as Exs.D1 and D2 respectively. 6. After completion of the evidence on prosecution side, the accused was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) to explain the incriminating evidence appearing against him in the evidence of prosecution witnesses. He denied the same. The accused did not adduce any evidence on his behalf. 7. After considering the material available on record, the learned Sessions Judge, vide the impugned judgment, found the appellant/accused guilty of the charge leveled against him and accordingly convicted and sentenced him as stated above. Aggrieved by the said judgment, the present appeal has been preferred by the accused through legal aid counsel Ms. Naseeb Afshan, as the accused is said to be having no resources to defend himself. 8. Heard the learned counsel for the accused and also the learned counsel representing the Public Prosecutor. 9. The points that arise for consideration are: (i) Whether the prosecution has proved that the accused beat the deceased and committed his murder; (ii) Whether the conviction and sentence imposed by the learned Sessions Judge are legal and sustainable ? 10. POINTS: In support of the case of prosecution, P.W.1, who is wife of the deceased, and P.W.2, who is father of P.W.1, and P.W.8, who is wife of the accused, were examined to prove that the child Rajesh was taken to Hospital on 19.5.2005 and that the accused came to Vijaya Rai Hospital and picked up a quarrel, and that, thereafter on the evening of 20.05.2005 again when the boy was taken to Hospital at Eluru, the accused again went there and after all of them returned to the house, he picked up a quarrel in the presence of P.Ws.2, 1, 8, 10 and others, and at that time, the accused was advised not to repeat this conduct and pick up quarrel with others and he was asked to leave the village in case he persists with the same behaviour, and that at all times, the accused was said to be in drunken condition under the influence of alcohol. According to their evidence, the accused packed his clothes and went away at about 9.00 PM, and during night time, when the deceased and P.W.1 were sleeping in their house, he came there and attacked the deceased in the house of the deceased. 11. P.W.1, who is wife of the deceased, was the direct witness to the incident. P.W.1 said to have informed about the incident to her father P.W.2 and also P.W.8 and others, who went there on hearing the same. All of them are relatives. Their relationship with the accused is also not far, and the accused is also more closely related to P.W.8, who is his wife, rather than nobody else, and the accused was having more affinity to his son Rajesh, who is said to have been taken to hospital without his information or knowledge. 12. P.W.3 is the father of the deceased. He also deposed that after coming to know about the death of the deceased, he came to the village and he was informed by P.W.1 that the accused killed the deceased. P.W.4 is none other than sister of P .W.1. Her evidence would also go to show that during night time, at about 10.00 PM, they heard shouts and cries of P.W.1 and went there and saw the accused running away from the house of P.W.1 and also found the deceased in a pool of blood, and that, thereafter, the deceased was taken to the Hospital lifting him on their hands and mean while P.W.2 brought a cart, and on the way to the hospital, the deceased died. He also deposed about conduct of the accused prior to the incident. P.W.5, who is husband of P.W.4, also deposed supporting the version of P.W.4. 13. P.W.6 did not support the prosecution case and he was declared as hostile. P.W.7, being neighbourer, also claims to have gone to the scene of occurrence after hearing the shouts of P.W.1 and noticed P.Ws.4, 5 and 6 at the scene. 14. P.W.9 is the Panchayat Secretary of the village. According to him, at about 6.30 AM on 21.5.2005, he was informed about the murder at Rangampet village and he visited there and recorded Ex.P1-statement of P.W.1, and along with his letter Ex.P3, he handed over Ex.P1 to police. He also deposed that police came there and conducted panchanama in his presence. He also spoke about the apprehension of the accused by police in his presence and recovery of blood stained clothes along with M.O.1-knife, at the instance of the accused. 15. P.W.10 is said to be a resident of Rangampet village and he was examined to prove that on the evening of 20.5.2005, the accused abused P.W.2 and others, and they advising the accused not to indulge in such activities, and that, thereafter at about 10.00 PM he heard cries and went to the house of P.W.1 and noticed the deceased with injuries. In cross-examination, he stated that P.W.1 is his first cousin sister and after this incident, he stopped talking to P.W.1. 16. The evidence of P.W.11, Doctor, who conducted postmortem examination of the deceased, is to the effect that on 22.5.2005, he conducted postmortem examination on the dead body of the deceased and found the following injuries. 1) Lacerated injury left sub-clavical region 3 cm x 2 cm x 2 cm; 2) Lacerated injury right chest wall length 3 cm, breadth 3 cm and depth 1.5 cm; 3) Lacerated injury right shoulder length 3.5 cm breadth 2 cm and depth 2 cm; 4) Lacerated injury face of the right thumb length 2 cm, breadth 2 cm and depth 0.5 cm; 5) Lacerated injury Dorsem of right hand, length 2 cm, breadth 1.5 cm; depth 0.5 cm; 6) Lacerated injury right cubitus, length 4 cm; breadth 3 cm and depth 2 cm; 7) Lacerated injury at the mid scapular region. Length 3.5 cm, breadth 3 cm and depth 2 cm; 8) Lacerated injury at the right shoulder, length 4 cm, breadth 3 cm and width 2 cm; 9) Lacerated injury right occipital injury, length 7 cm, breadth 3 cm and depth 2 cm. There was lengthy cross-examination of the Doctor to elicit whether the injuries noticed by him are possible by M.O.1-knife or not, and a positive suggestion was given to him that if the blunt side of sharp edged weapon is used with force, lacerated injuries 1 to 9 are possible, and if the tip of the M.O.1 is used, it would result either in stab injury or punctured wound. 17. The evidence of P.W.12, who is Assistant Sub Inspector of Police at the relevant point of time, is about receiving a complaint from P.W.9 and registering it as F.I.R. under original of Ex.P8 and sending it to the Court. The evidence of P.W.13-investigating officer, is about investigation done by him in this case and also apprehending the accused and recording confessional statement in pursuance of confession of the accused. 18. On the above evidence, the learned counsel for the appellant vehemently contended that the evidence of P.Ws. 1 to 3, 8 and 10 is inconsistent and it improbabilizes the prosecution version. According to her, there is absolutely no motive for the accused to commit murder of the deceased, and if at all he had got any grievance against his father-in-law or wife, he would have tortured them, but not attached the deceased, who is husband of P.W.1. According to her, presence of the deceased at the time of quarrel with his father-in-law P.W.2 by the accused, is not spoken to, by P.W.10 or other witnesses, and therefore motive of attack on the deceased after he was chastised by members of the family is also too remote to connect the accused with commission of the offence. It is further contended that original F.I.R. is not produced before the Court and there was a delay in giving complaint and sending it to the Court, and the same is not properly explained by the prosecution, and added to that, medical evidence about using of M.O.1-weapon in causing of the injuries is highly improbable in the nature of the circumstances and therefore the learned Sessions Judge erred in convicting the accused. Hence, she prays to acquit the appellant/accused. 19. As against the contentions, the learned counsel representing the Public Prosecutor contended that in the nature of the cause and also relationship between the parties, except the evidence of blood relations, there cannot be any other evidence that can be available, and merely on the ground that the witnesses who deposed, are relatives of the deceased, their evidence cannot be ignored. According to him, the medical evidence is quite clear and unambiguous about the cause of the injuries and the cause of death, and as such, no interference is called for in the conviction and sentenced recorded by the trial Court. He stressed more on the evidence of P.W.8, who is no other than wife of the accused, who has spoken about the incidents occurred preceding the offence and also the conduct of the accused. 20. In so far as the motive for commission of the offence is concerned, evidently the accused seems to have been enraged at the conduct of P.Ws.1, 2 and also his wife P.W.8 in taking his child to the hospital without his information and without his knowledge. Naturally, reaction of the parent at that point of time is more provocative and also accusing about the conduct of the others. Therefore, the fact that the accused has been in strained relationship because of the attitude of the family members, cannot be ignored and it might have been activated more so because he is said to be under the influence of alcohol continuously and also on those days. Therefore, motive attributed by the prosecution cannot be said to be not established or weak, so as to commit the offence by the accused. 21. So far as presence of the deceased at the time of the incident on 20.5.2005 at 9.00 PM is concerned, P.W.1-wife of the deceased and also P.W.8-wife of the accused have specifically stated that along with P.W.2, the deceased was also present and he also participated in conversation. According to the evidence of P.W.1, the deceased stated that because his father-in-law has no male children, the accused was attacking other members of the family without any basis. Therefore, participation of the deceased and also enraging the accused at that time by finding fault with him, is a circumstance to activate the conduct and mental condition of the accused and to facilitate him to commit the offence at that time. Therefore, merely because the evidence of P.W.10 is silent about the fact of deceased present at that time, it will not exclude the acceptable and believable evidence of P.Ws. 1 and 2 who are said to be the persons present there and who have spoken about the presence of the deceased at the time of discussion between the family members at about 9.00 P.M. Exclusion is no evidence whereas inclusion is positive evidence that carries more weight to be considered by the Court. Added to that, in the first information report given by wife of the deceased, she specifically stated that the deceased was present at the time when the family members had a discussion and the deceased also participated in the discussion and that the accused was chastised and asked to go away from the village if he persists with the same conduct. Therefore, the positive evidence of the witnesses, more so the evidence of none other than wife of the accused, who has absolutely no ill-will at that time to implicate the accused falsely, cannot be ignored. So, we have no hesitation in holding that the learned Sessions Judge scrutinized the evidence of all the prosecution witnesses in a right perspective and came to the right conclusion that their evidence is acceptable. 22. So far as the contention of the learned counsel for the appellant about the nature of evidence is concerned, evidently during night time, after 10.00 PM, when they have no other children, except presence of wife of the deceased, presence of any other witnesses cannot be excepted, and her reaction is also natural in raising cries and going to the house of her sister and neighbourers, who have also come there. Therefore, the contention that her evidence is to implicate the accused, cannot be accepted. 23. So far as the contention of delay in lodging the complaint to police is concerned, the incident happened during night time after 10.00 PM. Since the persons to be involved are only family members, naturally there would be some delay for one reason or the other on the part of the complainant to immediately rush to the police station and complain against co-brother of the deceased. Apart from this, during night time, there is no transport facility from the village to go to police station to lodge the complaint. So, in the facts and circumstances of the case, the delay by itself cannot be said to be taken as a circumstance favourable to the accused and it is also not a circumstance favourable to the accused since there is no act of implication or possibility of implication of innocent person rather than the real person, who committed the crime. 24. So far as the contention of the learned counsel for the appellant about medical evidence is concerned, it is true that the evidence of the Doctor is not assertive about the nature of weapon or cause of the injuries. But, there is positive evidence of eye-witness P.W.1. The only thing is the evidence of Doctor can be relied as inconclusive about the nature of the weapon and certain injuries have been noticed by him. He did not rule out possibility of lacerated injuries with the knife also. So, we are not able to agree with the above contention of the learned counsel for the appellant. Therefore, from the above discussion, it is clear that except the accused, there is no other person who is the author of the crime and the prosecution case has been established beyond reasonable doubt. 25. From the analysis of the evidence on record, it is quite clear that the accused, being enraged by the ace of neglecting him in the treatment of ill-ness of his child, seems to have developed some psychological feeling, and also the words that not to come to the child and leave the place seemed to have enraged him. Further more, pertinent cause for the accused to react is P.W.1 and her husband were taking more care of his child since they have no children, and so, the accused must have felt that his parental affection has been sidelined and he might have wanted to make some attack on the deceased. Therefore, from the above circumstances it is clear that the accused must have got intention to attack the deceased, but he might not be having knowledge to commit murder of the deceased. It is also fortified by the circumstance that there is no fracture of any vital organ of the deceased and there is only lacerated injury on the body of the deceased. These are all the circumstances entitling the accused for the benefit of converting his conviction from the offence punishable under Section 302 IPC to 304 Part I IPC. 26. In the result, the conviction and sentence recorded against the appellant/accused in the impugned judgment for the offence punishable under Section 302 IPC are set aside, instead, the appellant/accused is found guilty of the offence punishable under Section 304 Part-I IPC, accordingly convicted and sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.100/-, in default to suffer simple imprisonment for one month. The period of remand underwent by him during investigation, trial and after conviction shall be given set off, under Section 428 Cr.P.C.. 27. The Criminal Appeal is, accordingly, partly allowed. -------------------------------- (K.C.BHANU, J.) ------------------------------------------ (N.R.L. NAGESWARA RAO, J.) 20.12.2010 DRK THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 748 OF 2007 (per the Hon’ble Sri Justice N.R.L. Nageswara Rao) 20.12.2010 THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 748 OF 2007 Date: 20.12.2010 Between: Vannekuti Venkateswara Rao …Appellant And The State of A.P. rep. by the Public Prosecutor, High Court of A.P., Hyderabad …Respondent