THE HONOURABLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO +CRIMINAL APPEAL No.883 OF 2007 % Dated 28.12.2010 # Kakarapalli Rupulayya ... APPELLANT V. $ State of Andhra Pradesh ...RESPONDENT ! Counsel for the Petitioner : ^ Counsel for the Respondent : < Gist : > Head Note: ? Cases Referred: 1. (1969) 2 SCC 872 C/15 THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.883 OF 2007 JUDGMENT: (Per Hon'ble Sri Justice K.C. Bhanu) This Criminal Appeal, under section 374(2) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), is directed against the judgment, dated 13.10.2006, in Sessions Case No.331 of 2006 on the file of VII Additional Sessions Judge, Kakinada, whereunder and whereby, the appellant/sole accused was found guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “I.P.C.”), and accordingly, convicted and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.500/-, in default to undergo simple imprisonment for two months. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: The accused is no other than the husband of the deceased. They had three sons and one daughter. They were living by doing agricultural coolie work. The deceased used to attend to agricultural coolie work in the land of one Sreekakulapu Appa Rao. The accused used to suspect the fidelity of the deceased on the ground that she developed illicit intimacy with the said Appa Rao. For that reason, some disputes arose between the accused and the deceased. The accused insisted the deceased on several occasions not to go to the land of said Appa Rao for coolie work. But she paid a deaf ear to him and was continuously attending for agricultural coolie work in the land of said Appa Rao. Lady friends of the deceased used to come to their house. On 05.03.2006 at about 06:00 AM, the deceased went to the agricultural coolie work in the land of Appa Rao and returned home at about 06:00 PM. Around 07:00 PM, while the deceased was cutting onions by sitting on the pial situated in the rear side of the house, the accused came there with a curved knife, attacked the deceased from behind and hacked her with the said knife on her neck repeatedly. On that, she fell on the pial by raising cries. This was witnessed by the children of the deceased and accused. On hearing the cries of the children of the deceased, the neighbourers reached the spot and noticed the deceased lying on the cement floor on the back side verandah of the house with severe bleeding hack injuries. On seeing them, the accused ran away with the knife used in the attack. Father and paternal uncle of the deceased shifted her to Government General Hospital, Kakinada. Doctor declared that the deceased was brought dead. On receipt of information from the hospital, PW.12 proceeded to the hospital on 06.03.2006 at about 05:00 AM and recorded the statement of PW.1, returned to the police station and registered the same as a case in Crime No.51 of 2003 for the offence punishable under Section 302 I.P.C. Later PW.13 took up investigation. The investigating officer visited the scene of occurrence, observed the scene of occurrence in the presence of mediators, got photographed the scene of occurrence and prepared observation report of the scene of occurrence. During the course of investigation, on 09.03.2006 at about 01:00 PM, the accused was produced before PW.13 by the Panchayat Secretary, Kondapalli Village and the accused made a confession in his presence, and in pursuance of the same, the curved knife used for the commission of offence was recovered and seized. After completion of investigation, Police filed the charge sheet. The case was taken on file as P.R.C.No.19 of 2006 by the Additional Judicial Magistrate of First Class, Peddapuram and committed the same to the Court of Sessions. 3. The trial Court framed the following charge against the accused: "That you on 05.03.2006 at about 07:00 PM at your house in Kondapalli Kothuru Village, did commit murder of Kakarapalli Raghavamma alias Raghava, your wife, by intentionally hacking her with a curved knife on her neck repeatedly, and thereby committed an offence punishable under Section 302 of the Indian Penal Code, and within my cognizance." When the above charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution examined PWs.1 to 14 and got marked Exs.P1 to P11 besides case properties M.Os.1 to 6. 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 no evidence either oral or documentary was adduced on his behalf. 6. The trial Court accepting the evidence of PWs.1 to 3, children of the deceased and the accused who rushed to the scene of occurrence after hearing the cries of the deceased, came to the conclusion that it is accused, who hacked the deceased with knife and found him guilty of the offence punishable under Section 302 I.P.C. and accordingly, convicted and sentenced him as stated above. Challenging the same, the present Criminal Appeal is filed. 7. Now the point for determination is whether the prosecution proved its case against the accused of the offence punishable under Section 302 I.P.C beyond all reasonable doubt and whether the judgment of the trial Court is correct, legal and proper? 8. The learned counsel appearing for the appellant contended that PWs.1 to 3 are not eye witnesses to the incident; that they were playing in front of the house at relevant point of time of incident; that there was no scope for them to witness the incident, which had allegedly taken place in the rear side of their house; that there was no illumination of light at the time of incident, so as to identify the assailant of the deceased; that there is any amount of doubt with regard to lodging of Ex.P1; that the persons to whom the accused allegedly gave extra judicial confession and who produced the accused before the Investigation Officer - PW.13, are not examined, and therefore, an adverse inference has to be drawn for their non-examination under Section 114 (g) of the Indian Evidence Act, 1872 (for short, “the Act”); that the accused came to the house at about 07:30 PM and found the deceased lying in a pool of blood and on seeing her in pool of blood, he fell down and then he was taken to police station; that there is possibility of some persons, who used to visit the house of the deceased, committing the murder, cannot be ruled out; that this aspect has not been taken into consideration by the trial Court; that as seen from the evidence of PWs.7 and 8, there were no ill-feelings between the accused and the deceased; that they were living very cordially and there were no other disputes so as to enable the accused to take an extreme step of causing severe injuries to the deceased and hence, he prays to set aside the impugned judgment. 9. The learned counsel appearing for the learned Public Prosecutor contended that the evidence of PWs.1 to 3 is very clear that upon hearing the cries of the deceased, they rushed to the scene of occurrence and found their mother lying in a pool of blood; that at that time, the accused was holding a knife in his hand and later he ran away from the scene of occurrence; that if really some third parties caused injuries to the deceased, PWs.1 to 3 would not have implicated falsely their own father in a case of this nature; that the charge light was burning at the time of incident, which would have enabled PWs.1 to 3 to identify the assailant of the deceased; that furthermore, as the accused is no other than the father of PWs.1 to 3, it is not that difficult for them to identify the assailant even in the slightest illumination of light; that after arrest of the accused, he made a confessional statement leading to recovery of MO.1, which contained the same blood group of the blood of the deceased and so, it conclusively establish that MO.1 is the weapon used in the commission of offence; that it was seized in pursuance of the confessional statement made by the accused; that minor discrepancies with regard to the place where Ex.P1 was recorded and that some other persons used to come to the house of the deceased, cannot be taken as sole basis to acquit the accused as they were very trivial in nature; that those discrepancies do not go to the root of the prosecution case; that there are no grounds to interfere with the well reasoned judgment of the trial Court and hence, he prays to dismiss the Criminal Appeal. 10. PW.13 is the investigating officer who held inquest on the dead body of the deceased in the presence of mediators under Ex.P10 – Inquest Report. The inquest mediators opined that the deceased died as a result of injuries sustained by her. 11. PW.11 is the doctor who conducted Autopsy on the dead body of the deceased and found the following injuries: “External:- 1) A bone deep chop wound of 7 x 2 cms size is present on the left side of fore head extending from the inner end of left eye brow, to a point 4 cms above the outer end of left eye brow. Obliquely placed. Blood clots present in the wound margins clean cut. 2) A bone deep chop wound of 8 x 2 cms is present on left frontal parietal region of scalp. The frontal end of the wound is 3 ½ cms above the upper attachment of left ear and parietal end of the wound is 8 cms below left parietal eminence obliquely placed. Margins clean cut. Blood clots present in the wound. Head hair is matted with blood around the wound. 3) A bond deep chop wound of 4 cms x 1 cms present on the back of mid neck region. Horizontally placed. It is 11 cms below the external occipital protrubance and 5 cms above the face of the neck on the back. Margins clean cut. Blood clots were present on the wound. 4) A bond deep chop wound of 4 x 2 cms size is present on the right shoulder blade on the back of chest, on the upper borde (upper curvature) of right scapula. It is 11 ½ cms above the tip of right shoulder (lower triangular portion) and 5 cms away from the mid line of back of chest. Margins clean cut. Blood clots present in the wound. 5) A bond deep chop wound of 5 x 1 ½ cms size is present on the back of right side of neck at its base, extending obliquely from the midline to a point 10 cms below the right mastoid process and it is 4 cms medial to and away from the injury No.4. Margins clean cut. Blood clots present in the wound. 6) A skin deep incised wound of 6 x ½ cms size is present on left shoulder blade on the back of chest at its upper aspect. Margins clean cut. Blood clots present in the wound. 7) A bond deep cut incised wound of 3 x ½ cms size is present on the back of left hand extending upwards to the back of left index finger under lying bones intact. Blood clots present in the wound. (Defence wound) Internal:- 1) At the base of the wound, corresponding to external injury No.1 on fore head, the left side of frontal bone is clean cut edges are bone are blood stained. 2) Corresponding to external injury No.2, at the base of part of the frontal bone is clean cut involving both tables of cranial vault through which dural membrane of brain is visualized. Dural membrane is intact. Cut edges of bone blood stained. 3) Corresponding to external injury No.3 at the base of the wound 3rd cervical vertebra is clean cut exposing the spinal cord with corresponding cut on spinal cord. Cut bony edges are blood stained. 4) Corresponding to external injury No.4, the upper border of under lying right scapular bone is clean cut at the base. The cut bony edges are blood stained. 5) Corresponding to external injury No.5, at the base of the wound, the right transverse process of 6th cervical vertebra is clean cut, cut edges of the bone are blood stained.” The doctor opined that all the above injuries are ante-mortem in nature and they would have caused by medium to heavy size sharp edged cutting weapon. He also opined that the death occurred due to hemorrhage and shock as a result of multiple chop wounds associated with injury to cervical vertebral and spinal cord. The evidence of PW.11 and the recitals in Ex.P6 – Post-mortem Certificate remained unchallenged. From the above evidence, homicidal nature of death of the deceased is established. Now, it has to be seen whether the accused is the assailant of the deceased or not? 12. The scene of occurrence is not in dispute. PW.13 observed the scene of occurrence in the presence of mediators and issued Ex.P8 - observation report. During the course of observation of scene of occurrence, he seized the blood stained cement floor and also other incriminating materials. He also seized clothes of the deceased after inquest and sent them for analysis to Forensic Science Laboratory. 13. The deceased is no other than the wife of the accused. PWs.1 to 3 are the children of the accused and the deceased, who rushed to the scene of occurrence upon hearing the cries of the deceased. PWs.1 to 3 are the children who are aged about 18, 14 and 12 years respectively as on the date of incident. The incident is said to have taken place on 05.03.2006 at about 07:00 PM, in the house of the accused at Kondapalli Kothur Village. PW.7 is the father of the deceased and PW.8 is the brother of PW.7. Admittedly, PW.7 was in his agricultural land at the time of the incident. On coming to know about the incident, he rushed to the scene of occurrence and found the deceased lying in a pool of blood. Immediately thereafter, the deceased was shifted to the Government General Hospital, Kakinada. The doctor who examined her found as brought dead. 14. The presence of PWs.1 to 3 at the relevant point of time of incident is quite natural and probable, because they are the children of the deceased and accused. They were admittedly present at the time of the incident. Even the accused did not deny or dispute about their presence at the time of incident. Their evidence would clearly go to show that they were present in the house on the pial of the house on front side. The house of the deceased and accused is having two doors. One entrance is from the front side and another entrance is from the rear side. The accused and the deceased were sitting on the rear side of the house and at the point of time of incident, the deceased was cutting onions. PWs.1 to 3, after hearing the cries of the deceased, rushed to the rear side of the house and found their mother lying in a pool of blood. At that time, they also saw their father holding a curved knife in his hands. No doubt, they did not witness the actual incident of accused hacking the deceased, but, at the same time, immediately after hearing the cries of the deceased, they rushed to the scene of occurrence and found deceased lying in a pool of blood and accused was present with knife. There was no scope or possibility for any other person to come to that place at that point of time. Furthermore, PWs.1 to 3 have categorically stated that they have got love and affection towards their father, as their father looked after them affectionately. If such is the case, they would not have spoken false against their father, unless they saw what had happened on the date of incident. Therefore, their evidence is convincing, trustworthy and reliable. There is no other reason for them to foist a false case against their own father. 15. Even, it is not the case of the accused that they were speaking false at the instance of the father of the deceased and his brother, PWs.7 and 8 respectively. Their evidence would go to show that there were no disputes between the accused and the deceased and at any point of time, the deceased complaining against her husband on any aspect. In considering the question, as to whether the evidence given by PWs.1 to 3 should be accepted or not, the Court has to examine whether these three witnesses are tutored to give false evidence and whether the story deposed by them is probable and whether it has shaken in the cross-examination. There were no serious disputes between the accused and the deceased prior to the incident. If such is the case, PWs.7 and 8, would not have tutored PWs.1 to 3 to give a false statement against their own father. Even after lengthy cross- examination, nothing has been elicited in their cross-examination to discredit the testimony of PWs.1 to 3. Their evidence is crystal clear that after hearing the cries of the deceased, they rushed to the back side of the house and found their mother lying in a pool of blood and they also saw the accused holding knife, MO.1. If really PWs.1 to 3 are tutored by relations of maternal side, they would have as well stated that accused is the person actually hacked their mother. They did not speak to that fact. Therefore, PWs.1 to 3 are witnesses of truth and they have testified what they have observed on the date of incident. 16. Immediately after the incident, PWs.7 and 8 took the deceased to the Government General Hospital, Kakinada, where the doctors declared as brought dead. On coming to know about the incident, PW.12 proceeded to the Government General Hospital and recorded Ex.P1 statement from PW.1. There is a dispute with regard to the place where Ex.P1 was recorded. According to PW.1, it was recorded at his house. PW.1 specifically stated that no statement was recorded from him at the hospital. Basing on this inadvertent admission made by PW.1, it cannot be said that he has not given Ex.P1 report in the hospital. He was deposing about the incident after a lapse of six months from the date of incident. So, some minor variations or contradictions are bound to occur, even in case of truthful witnesses. Therefore, that admission of giving report at his house cannot be a ground to discredit the evidence of PW.1, especially when his presence at the time of incident is proved beyond all reasonable doubt. There is scope for him to rush to the scene of occurrence after hearing the cries of the deceased. The evidence of PW.1 would go to show that while PW.1 and his brother and sister were present in the home, they heard the cries of the deceased and went to the kitchen and found the deceased lying in a pool of blood. The recitals in Ex.P1 are more or less completely in corroboration with the evidence of PW.1. So, the earliest version would clearly go to show that at the time of incident, the deceased was cutting onions and accused came there at about 07:00 PM after attending coolie work and thereafter, at about 07:30 PM, he heard the cries of his mother and rushed to the scene and found his mother in a pool of blood. Though it is stated that accused caused bleeding injuries with a knife on forehead, neck, below the neck of his mother, that was not testified in the Court. Therefore, that aspect of the case i.e., accused causing injuries to the deceased as mentioned in Ex.P1 cannot be treated as evidence. Therefore, when the recitals with regard to main substratum of the case in Ex.P1 are shown to be true and correct, the law is well settled that they can be used to corroborate the evidence of PW.1 under Section 157 of the Act. 17. There is yet another circumstance which would clearly go to show that the accused was produced before the police by three disinterested persons and in pursuance of his confessional statement as in Ex.P4 (Admissible Portion), the accused offered to show the place where he has hidden the knife used in the commission of offence. In pursuance of the confessional statement, the accused led the police and the mediators to the choultry; took out the knife from the eves of the house and produced before them. The same was seized under Ex.P5. Four conditions are required so as to attract Section 27 of the Act viz., (i) discovery of fact in consequence of the information received from a person accused of an offence (ii) the discovery of such fact must be deposed to (iii) at the time of receipt of information the accused must be in police custody (iv) so much of information relates distinctly to the fact discovered. On this aspect it is apt to refer to a decision of the Honourable Supreme Court in Jaffer Hussain Dastagir v. State of Maharashtra[1], wherein it is held thus: “Under section 25 of the Evidence Act no confession made by an accused to a police officer can be admitted in evidence against him. An exception to this is however provided by S. 26 which makes a confessional statement made before a Magistrate admissible in evidence against an accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement. Section 27 is a proviso to section 26 and makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the crime, irrespective of the question whether it is confessional or otherwise. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence….” MO.1 was identified by PWs.1 to 3 as the weapon in the hands of the accused. MO.1 was analyzed by the expert of Forensic Science Laboratory. As per report Ex.P11, MO.1 contained ‘B’ – Group Blood, which is the same Group of Blood of the deceased. 18. From the evidence of PWs.1 to 3 it is very clear that MO.1 is the knife, which was found in the hands of the accused at the time of incident. It is clear from the evidence that MO.1 is the knife used in the commission of offence as it contained the same Blood Group of the deceased. 19. With regard to the motive for commission of offence, the deceased was going to coolie work in the field of one Appa Rao, against the will and wish of the accused, and so, the accused was suspecting the fidelity of the deceased; not heeding to his words doing agricultural coolie work in the land of said Appa Rao, may be the reason for the accused to entertain grievance and take such an extreme step of causing injuries to his wife. This aspect of motive appears to be probable. It is contended that