THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No. 547/2007 Dt. 20-10-2010 1. Sykam Venkateswara Rao and others ..Appellants/A-1,A-2 & A-5 V. The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., at Hyderabad. ..Respondent/complainant The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No. 547/2007 JUDGMENT (per the Honourable Justice A.GOPAL REDDY) The appellants who figured as A-1, A-2, A-5, along with three others, namely, Sykam Nagaraju (A-3), Sykam Gopala Swamy (A-4) and Sykam Venkateswaramma (A-6), were put to trial for the offences under Section 302 r/w 34 IPC, 379, 109, 114 and 201 IPC by VII Additional District & Sessions Judge (FTC), Vijayawada, FAC VIII Additional District & Sessions Judge (FTC), Vijayawada. The learned Sessions Judge, by judgment dt. 27-4-2007 passed in SC No.23/2007, while acquitting A-3 for the offence punishable under Secs. 302 r/w 34 and 379 IPC; A-4 for the offence punishable under Sec. 302 r/w 34 IPC; A-5 for the offence punishable under Sections 109 and 114 IPC; and A-6 for the offence punishable under Sections 109, 114 and 201 IPC, found A-1, A-2 and A-5 guilty of the offences under Sections 302 r/w 34 IPC and 201 IPC respectively and convicted accordingly and sentenced A-1 and A-2 to suffer imprisonment for life each for the offence under Sec. 302 r/w 34 IPC and also sentenced A-5 to suffer rigorous imprisonment for a period of one year and also to pay a fine of Rs.5000/- in default to suffer simple imprisonment for a period of six months for the offence under Sec. 201 IPC.. The appellants herein will hereinafter referred to as “A-1, A-2 and A-5” during the course of our judgment. The substance of the charges framed against the accused is that on 20-6-2006 at about 12 0’ clock at Ayyappa Nagar, Vijayawada, the accused in furtherance of their common intention caused the death of Tirumalasetti Venkateshwar Rao, (hereinafter referred to as “the deceased”). During the course of same transaction, they further committed theft of gold chain and locket from the persons of the deceased. Further, A-5 and A-6 caused disappearance of evidence by concealing the blood stained clothes with an intention of screening the offenders from legal punishment. The prosecution story, as unfolded during the trial, which led to the conviction of the appellants/A-1, A-2 and A-5 is as follows: P.W.1 is the niece, P.W.2 is the brother, P.W.3 is the cousin brother, P.W.4 is the sister, P.W.5 is the mother-in-law, P.W.9 is the nephew and A-5 and P.W.6 are the first and second wives of the deceased. A-1 to A-3 are the brothers. A-4 is the father and A-6 is the mother of A-5. The deceased was married to A-5 about twenty years prior to the date of the incident. As they were not blessed with any issues, they brought up P.W.9. On 8-6-2006, the deceased married P.W.6. Subsequently, P.Ws.2 and 4 were informed by the deceased that the brothers of his first wife ie., A-5 are trying to kill him as his properties will go to his second wife and A-5 demanded to transfer the properties in her name. On 19-6-2006 the deceased further informed P.W.3 that A-5 was harassing him with regard to the properties and asked him to come and settle the issue in the presence of elders. About two days prior to the incident, P.Ws.2 and 4 met the deceased and informed him not to worry and the matter would be settled before the elders. About one week prior to the date of the incident, A-5 telephoned to P.W.1 and informed her that the deceased got married again and asked her to come. P.W.1 immediately went to the house of the deceased. On 20-6-2006, the deceased slept in one room, whereas P.W.1, A-5 and A-6 slept in another room. On hearing the cries, P.W.1 woke up and saw A-1 to A-4 killing the deceased with knives and axes. Thereafter, they fled away from the scene. P.W.1 went and saw the deceased lying dead. At about 12 mid-night, P.W.9 who was preparing for his next day exam, came out to have a tea and saw A-1 to A-4 crossing the road to go to their house. After having tea while returning to his house P.W.9 saw A-5 and A-6 coming opposite to him. On 21-6-2006 at about 4-30 AM on the basis of the report lodged by P.W.1, P.W.14, the then Inspector of Police registered the same as in Cr.No.357/2006 and issued First Information Report covered under Ex.P-7. On registering the crime, he immediately rushed to the scene. He sent a requisition to Mandal Revenue Officer and also summoned Dog Squad and Clues Team. He prepared the observation report. He held inquest over the dead body of the deceased in the presence of P.W.10. Ex.P-2 is the observation report and Ex.P-3 is the inquest report. Ex.P-8 is the rough sketch of the scene. After inquest, P.W.14 sent the dead body for postmortem examination. On 21-6-2006 on a requisition, P.W.12-Assistant Professor, Department of Forensic Medicine, Siddarth Medical College, Vijayawada, held autopsy over the dead body of the deceased and issued postmortem report covered under Ex.P-6 opining that the cause of death was due to shock and hemorrhage as a result of injuries. On 26-6-2006, P.W.14 arrested the accused in the presence of P.W.11. During the course of interrogation, at the instance of A-1, A- 2 and A-3, M.Os.4 to 8 were recovered. On 27-6-2006, he examined P.Ws.8 and 9. On 15-7-2006 he sent the material objects to Forensic Science Laboratory. On receiving relevant reports and on completion of investigation, P.W.14 filed the charge sheet before the I Additional Chief Metropolitan Magistrate, Vijayawada. Learned Magistrate took the charge-sheet on file as PRC No.26/2006 and committed the case to the Court of Sessions, Metropolitan Division, Vijayawada as the offence, Sec. 302 IPC, is exclusively triable by Court of Sessions. The learned Metropolitan Sessions Judge took the case on file as SC No.23/2007 and made over to VIII Additional District & Sessions Judge (FTC), Vijayawada for disposal according to law. The learned Sessions Judge on hearing the prosecution and the accused, framed five charges for the offences punishable under Section 302 r/w 34, 379,109,114 and 201 IPC against the accused, read over and explained the same to the accused in Telugu, for which the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offences for which they stood charged, the prosecution examined 14 witnesses and proved 13 documents and exhibited 8 material objects. After closure of prosecution side evidence, the accused were examined under Sec. 313 Cr.P.C., and they denied the incriminating material appearing against them in the evidence of prosecution witnesses. On behalf of the defence, no witness was examined but portion of P.W.7 in his Sec. 161 Cr.P.C., statement was marked as D-1. The learned Sessions Judge after carefully scanning the evidence adduced by the prosecution as well as the accused, was of the view that P.W.1 saw A-1 and A-2 killing the deceased in front of the house in the lane; though in Ex.P-1 report, P.W.1 did not state any overt acts of the other accused, before the court she stated that A-1 to A-4 armed with axes and knives killed the deceased, which cannot be acceptable; contents in Ex.P-1 proved the commission of offence by A- 1 and A-2 and while acquitting A-3, A-4 and A-6 convicted A-1,A-2 and A-5 and sentenced them as aforementioned. Challenging the conviction and sentences, A-1, A-2 and A-5 preferred the present appeal. Sri C. Padmanabha Reddy, learned Senior Counsel appearing for the appellants contended that P.W.1, who is niece of the deceased, is a sole eye witness to the occurrence, according to the prosecution, and her evidence was disbelieved in respect of A-3 and A-4 and there is no guarantee that she is telling the truth against A-1 and A-2. When the finding of the trial court that P.W.1 is wholly not reliable witness, her evidence needs corroboration. A-5 who is the first wife of the deceased gave a report earlier covered under Ex.P-12, whereas report of P.W.1 is subsequent to Ex.P-12 made by A-5, but time is altered, which is evident from the fact that the same is received by the Magistrate at 1 PM. Summoning dogs’ squad itself shows that investigating agency is not sure about the involvement of the accused in the commission of the offence. By inviting our attention to the column Nos.11 and 15 of the inquest report covered under Ex.P-3 and rough sketch covered under Ex.P-8, learned Senior Counsel contends that it is highly improbable for P.W.1 witnessing the incident as she categorically admitted that while the deceased was running away from the house all the accused killed the deceased in the lane, therefore, her witnessing the incident in the bed room is an improvement and unless corroboration, the same cannot be the sole basis for conviction. While refuting the contentions advanced by the learned Senior Counsel, the Public Prosecutor contended that when the presence of P.W.1 has been admitted, what made her to give a statement against A-5, who brought her up and who called P.W.1 to their house to discuss about the second marriage of the deceased, which shows the truthfulness of the statement made by her. In Ex.P-1, names of A-3 and A-4 are not mentioned, therefore, acquittal of A-3 and A-4 will not enure to the benefit of the other accused. In view of the submissions, as referred to above, the point that arises for consideration is: “Whether the conviction and sentences recorded by the trial court against the appellants/A-1, A-2 and A-5 are sustainable and the prosecution proved its case beyond all reasonable doubt against them P.W.1, who is said to be an eye witness to the incident, who was brought up by A-5 and the deceased, and who set the criminal law into motion by lodging report covered under Ex.P-1, testified that the deceased is her junior paternal uncle. She was at his house on 20-6-2006 as A-5 called her that her junior paternal uncle (deceased) contacted second marriage. There was a quarrel between A-5 and the deceased with regard to the second marriage and with regard to the property since a long time. On 20-6-2006, the deceased slept in one room, whereas herself, A-5 and A-6 in another room. After sometime, she heard some sound in the room where the deceased slept. Then she woke up and saw A-1 to A-4, who are the brothers of A-5 armed with axes and knives, killing the deceased. Later, they disappeared. She went near the deceased and found him lying with number of injuries. Out of fear, she came out of the house along with her child and went to Patamata Police Station and gave a statement to the police. On recording her statement by Inspector of Police (P.W.14), she subscribed her signature. She came back to the house in a police jeep. Police arrested A-5 who is present in the house. A-4 is the father of A-5. A-6 also present in the house on the date of incident along with A-5. In the cross-examination, she stated that A-5 informed her the problems so as to get some relief. On the date of incident, it was a dark night. The deceased cried “Nannu Champakandi Champandi”. She cannot give the description of the weapons of each accused and cannot give the individual overt acts of each accused. Except hearing the cries of the deceased, she does not know what happened in the room. While, the deceased was running away from the house in the lane, which is about 5 feet width, the accused killed him. She saw the overt acts of the accused in the lane. She does not know whether A-5 gave any report to the police prior to his report or later on. After returning from the police station, she saw A- 5 and A-6 present in the house, where 100 persons gathered. On the same day, A-5 and A-6 were taken into custody by the police. In Ex.P- 1, she stated that the accused hacked the deceased in the lane and all the accused participated. She denied a suggestion that she did not state either in Ex.P-1 or in Sec.161 Cr.P.C., statement about the weapons arming by the accused. Police recorded her statement as in Ex.P-1. They also recorded Sec.161 Cr.P.C., statement. She also stated in Sec.161 Cr.P.C., statement as stated in her chief. P.W.2 deposed that the deceased and A-5 acquired some properties and there are some disputes between them with regard to not having children. The deceased is his fourth elder brother. His son studied from 1st to 6th standards while staying in the house of the deceased. P.W.3 is the cousin brother of P.W.2. P.W.3 approached the deceased to arrange his marriage with the sister of A-5 and thereby P.W.3 used to visit the house of the deceased. One week prior to the incident, he came to know that the deceased contacted second marriage. After second marriage, when he met the deceased, he informed him that his brothers-in-law ie., brother of first wife, are trying to kill him as the properties will go to the second wife. He advised the deceased to come over to their village and settle the dispute before the elders. P.Ws.3 and 4 spoke about the marriage between A-5 and the deceased and their not having any children during their wedlock. P.W.5 is the mother of Nagalakshmi ie., P.W.6, to whom the deceased married 12 days prior to the incident. She deposed about the marriage and the deceased going to his house (1st wife’s house) on 13th day. She further stated that second marriage was performed at Dwaraka Tirumala and none of the brothers of the deceased attended the 2nd marriage. P.W.10 is the Village Administrative Officer of Gunadala. She acted as a mediator to the observation report covered under Ex.P- 2 and seizure of M.Os.1 to 3. She drafted inquest report covered under Ex.P-3. P.W.12 is the Doctor who conducted autopsy over the dead body of the deceased found the following injuries: 1. Cut injury measuring 17 cms x 1 cm x 5 cms on the left side of face and neck extending from angle of mouth to left side of neck transverse in position, cutting through the ramus of mndible (lower jaw) and the major blood vessels of neck. Blood clots present in the wound. Margins clean cut and contused. 2. Cut injury measuring 7 cms x 1 cm x 1 cm present on front of neck at the level of thyroid cartilage, cutting underlying muscles and thyroid cartilage. Blood clots present. Margins clean cut and contused. 3. Cut injury measuring 7 cms x 1 cm x bone deep present on right temporal occipital region of head, cutting the outer table of skull. Margins clean cut and contused. He issued postmortem certificate covered under Ex.P-6 opining that the cause of death was due to shock and hemorrhage as a result of injuries and they might have caused with heavy weapon and also sharp edged weapon. P.W.13-Police Constable deposed that himself, P.W.14, P.W.10 and another mediator Durga Rao-P.W.11 went to Ayyappa Nagar on coming to know that the accused are in the house. On interrogation, A-1 informed that A-2 and A-3 are his brothers, A-4 is his father; A-5 is his sister and A—6 is his mother. The accused confessed that they have committed the offence. A-1 and A-2 produced M.Os.6 and 7 before them. A-3 produced gold chain covered under M.O.5 from his pant pocket. He drafted mediators reports covered under Exs.P.4 and P-5. P.W.11 is the mediator in whose presence accused confessed and on enquiry, A-1 and A-2 revealed their names and confessed that they beat the deceased with a chutney pounder as he got 2nd marriage. They dragged the dead body into the lane and A-2 cut the throat of the deceased with a knife. A-2 also confessed that he has thrown the knife at Ariti Thota (Plantain garden) and led them to the said garden and picked up knife and same was seized under a cover of mahazar. Police seized blood stained shirts of A-1 and A-2. Police also seized gold chain from A-3. M.O.4 is the knife. M.O.5 is the gold chain. M.Os.6 and 7 are the blood stained shirts. M.O.8 is the towel with which M.O.4 was wrapped. On all the documents, P.W.11 and P.W.10 signed. P.W.14, who is the then Investigating Officer and who filed charge sheet after completion of investigation, deposed that he came to the police station early hours on 21-6-2006 after night rounds. At about 4-30 AM, P.W.1 came to the police station. He recorded her statement. He registered it as a case in Cr.No.357/2006 and issued First Information Report covered under Ex.P-7. He sent copies of Ex.P- 7 to all the officers concerned. He sent a requisition to Mandal Revenue Officer to depute Village Administrative Officer. He also summoned Dogs Squad and Clues Team. P.W.10 drafted observation report covered under Ex.P-2. He seized blood stained earth at the scene of offence. He also seized bed sheet covered under M.O.1 stained with blood. He also seized soft hair with blood stains on the almyrah covered under M.OP.2 and chutney pounder covered under M.O.3. He arrested accused on 26-6-2006 in the presence of P.W.11. A-1 voluntarily produced M.O.6 and A-2 produced M.O.7. He seized the same under a cover of mediators report. A-1 led them to plantain garden to show the knife (M.O.4). He again stated that A-2 led them to Garden. He also taken steps to record Sec.164 Cr.P.C., statement of P.W.1. On 20-9-2006 the Sec.164 Cr.P.C., statement of P.W.1 was recorded. Ex.P-12 is the statement of A-5, but they have not registered any crime basing on Ex.P-12, which was given at about 5-45 AM. In the cross-examination, P.W.14 stated that according to his investigation, the scene of offence is in the bed room and in the pathway ie., varandah, where the dead body is found lying. He cannot say where the deceased had his last breath. There are blood stains from bed room to the end of the pathway where the dead boy was present. There is over writing/correction of the time when he recorded Ex.P-1. He denied a suggestion that as A-5 gave a statement, he has corrected the time of Ex.P-1 with ante time from 6-30 to 5-30 at two places. P.W.1 did not state before him that there are disputes between the deceased and A-5 due to his 2nd marriage and with regard to properties. P.W.1 did not state before him that she woke up after hearing cries and found A-1 to A-4 armed with knives and axes. P.W.1 also did not state before him that A-1 to A-4 hacked the deceased with knives and axes and killed him. Learned Senior Counsel was emphatic in his submission that Ex.A-12 statement given by A-5 was earlier in point of time, and to suite the prosecution case, timing of Ex.P-1 was altered. In the evidence of P.W.1, she stated that she woke up and saw A-1 to A-4, who are the brothers of A-5, armed with axes and knives, killing the deceased. It is impossible for her to see what transpired in the bed room. She has not stated that the deceased was hacked in the pathway as stated in Ex.P-1. Though the argument is attractive, we see no force in the said submission. In Ex.P-1, P.W.1 stated that her aunt-A-5 telephoned to her and informed that the deceased again married and she was feeling pain on that affair and requested her to come over to see her. On her request, P.W.1 went to the house of the deceased and A-5, and asked the deceased about his 2nd marriage. The deceased confirmed the same. At the request of the deceased, she stayed there. A-5’s mother-Venkateswaramma was also staying with them at the house. During the absence of the deceased, the father of A-5, and the brothers of A-5, namely, Venkatedswara Rao, Babu Rao and Nagaraju used to visit the house and had discussions with A-5. She could understand that there were some disputes between the deceased and the father and brothers of A-5 with regard to the property. On the date of incident ie., on 20-6-2006, after taking dinner, herself, A-5 and her mother were slept in one room. At about 12 o’clock the deceased came to the house and A-5 opened the door and later the deceased slept in the bed room. After sometime, on hearing some sound, she woke up and found Venkateswara Rao and Babu Rao hacking the deceased in the lane between the house and the compound wall and when the deceased fell down they left the place. A close scrutiny of timing mentioned in Ex.P-1 would disclose that it was between 4 to 5 hours but was altered as “4- 30 to 5” hours but not from “5-30 to 6” hours as contended by the learned Senior Counsel. In her evidence before the court, P.W.1 stated that she woke up and saw A-1 to A-4, who are the brothers of A-5, killing the deceased; that later they disappeared; that she went near the deceased and found the deceased lying with number of injuries; that out of fear, she came out of the house along with her child and went to the police station in an auto and gave a statement covered under Ex.P-1. She has not stated that she saw the incident as happened in the bed room either in Ex.P-1 or in her evidence as P.W.1. In the cross-examination, she stated that except hearing the cries of the deceased “Nannu champakandi Champakandi”, she does not know what had happened in his room. While the deceased was running away from the house in the lane, which is about 5 feet width, the accused killed him. The deceased fell down in the lane. While lying on the cot, she saw the incident. She stated in Ex.P-1 that the accused hacked the deceased in the lane and all the accused participated. She also stated in Sec.161 Cr.P.C., statement as stated in her chief. In Ex.P-12 statement given by A-5, it was stated that her mother stayed with her. Along with her mother, P.W.1 who was brought up by herself and the deceased was also stayed with them. The deceased used to come to the house late in the night and at sometimes, he has not come to the house, and is not dining in the house, but he looked after her well. On 20-6-2006, the deceased left for the shed at Auto Nagar and at about 11-30 PM, he returned to the house. When she asked him to take dinner, he stated that he had it already. When he asked for drinking water, she gave him water. A-5, her mother and Kanakadurga-P.W.1 with her children were slept in one room and her husband alone slept in the bed room. The evidence of P.W.1 with regard to the deceased returning to the house at 12 ‘o clock and slept in the bed room is corroborated with the statement of A-5 covered under Ex.P-12. Further, A-5 in her statement covered under Ex.P-12 stated that on her hearing some sound, she opened the door and found two persons are running away by jumping the wall of their house and her husband was lying in a pool of blood. She afraid of it and she wake up her mother and went near the deceased and was found dead. Then, A-5 along with her mother went to the house of her eldest brother, Sykam Venkateswara Rao. On the advise of her father, A-5 went to Patamata Police station and lodged report. It is always possible once A-5 and her mother leaving the place P.W.1 who