THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.A.No.1796 of 2007 JUDGMENT: (per the Hon’ble Sri Justice G.Krishna Mohan Reddy) 1. This Criminal Appeal is preferred under Section 374(2) Cr.P.C. against judgment of conviction and sentence recorded against the appellant-A1 (for short ‘A1’) for offence punishable under Sections 302, 307 and 326 IPC in Sessions Case No.429 of 2006 dated 13.11.2007 on the file of VI Additional District and Sessions Judge (Fast Track Court), East Godavari, Rajahmundry. 2. A1 who was tried along with A2 in the case for the said offences read with Section 114 IPC was found guilty of committing those offences (apart from that under Section 114 IPC) and was sentenced to suffer life imprisonment and also to pay a fine of Rs.50/- and in default of payment of the fine amount, to suffer simple imprisonment for (7) days for the offence punishable under Section 302 IPC and further sentenced to suffer rigorous imprisonment for a period of (5) years and also to pay a fine of Rs.50/- and in default of payment of the fine amount, to suffer simple imprisonment for (7) days for the offence punishable under Section 307 IPC and further sentenced to suffer rigorous imprisonment for a period of (3) years and to pay a fine of Rs.50/- and in default of payment of the fine amount, to suffer simple imprisonment for 15 days for the offence punishable under Section 326 IPC whereas A2 was acquitted under Section 235(1) Cr.P.C. of the charge. 3. It is necessary to note briefly the prosecution case, at the outset, which is as follows: (a) P.W.1 in the case is the son of P.W.2, Talluri Nagamma (late) (for short ‘D1’) was the elder sister of P.W.1 and Podugu Bhadra Rao (late) (for short ‘D2’) was the father of P.W.1. They were all the residents of Plot No.1, Block No.2, Vambay group houses at Narayanapuram, Rajahmundry. A1 was the husband of D1 and A2 is a close associate and relative of A1 and both of them are the residents of Kandregula village of Pedapudi mandal. (b) A1 married D1 in the month of February 2003 at Sri Venugopalaswamy Temple at Kakinada. After their marriage, both of them lived at Kandregula in the house of the first of them. After six months of the marriage, A1 started suspecting that his wife (D1) was having illicit intimacy with another person in his village. D1 became pregnant and went to her parent’s house and delivered a male child. Then, A1 started harassing and threatening to kill her on the ground that the child was not his son as the child was not possessing his resemblances. Then the parents of D1 tried to convince him that at the tender age of the child, his resemblances would not appear, but however, A1 did not get himself convinced of that. Further, his suspicion about her character raised to such an extent that he decided to kill her. (c) Thereafter, A1 visited the house of his in-laws four or five times and asked her parents to send her with him. But she refused to go to the house of A1 expressing her fear that he may kill her. Thereby her parents informed A1 that they would not send her with him unless and until his family was shifted to some other place from Kandregula. Then A1 threatened and warned that he would kill all their family members if his wife was not sent with him. Further, about 3 days prior to the incident in question, again A1 went to the house of the parents of D1 and further demanded to send her to him following which, an altercation took place between A1 and the family members of D2. Then also A1 seriously threatened to kill the family members of D2 including D2 and went away. (d) Further, on the evening of 27.2.2006 A1 went to Nadakuduru village by his Hero Puch moped bearing Regn. No.AP 5 M 5089 and purchased a curved knife from a black smith namely Kanithi Arjuna Rao for Rs.110/- and got it sharpened. Further, on 28.2.2006 A1 consulted A2 and expressed his intention to kill his wife and thereby A2 promised to help him in the commission of offence. In consequence of that, on the same night of 28.2.2006, A1 and A2 went to the house of the parents of D1 at 11 p.m. keeping the knife outside and stayed there for that night. Then the parents of D1 arranged a tape cot for A1 and A2 to sleep, whereas the father, mother and brother of D1 and also D1 along with the child slept on the floor in the same room. (e) During the midnight, A1 woke up, went outside and secured the curved knife and put on tube light and at first attacked and hacked the neck of D1 two or three times with the curved knife uttering “chavave lanja” and on hearing the cries, D2 woke up and interfered and then A1 hacked the neck of D2 with the knife uttering “chavara”. Further, in the meanwhile, A2 stood up and witnessed the assault without making any alarm or attempt to stop A1 from doing so. Further, P.W.2 interfered and requested A1 to stop the violence, but A1 hacked the neck and hands of P.W.2 with the knife and caused serious injuries to P.W.2 also. Further then P.W.1 also requested A1 to stop the violence, then A1 mercilessly hacked on the neck, head and back of P.W.1 with the knife declaring that he would not let them all alive. Thereafter A1 escaped from the scene towards Lalacheruvu by his moped and threw away the bloodstained knife into the bushes near CWC godowns on high school road, Narayanapuram, whereas A2 also escaped from the scene of offence separately. Further, due to the said attack, D1 Talluri Nagamma and D2 Podugu Bhadra Rao died instantaneously at the scene of offence whereas P.Ws.1 and 2 were seriously injured. (f) Further, within 15 minutes of the incident, the brother of P.W.1 Podugu Veerabbau and some other relatives arrived and shifted P.Ws.1 and 2 to the Government Hospital, Rajahmundry for treatment. On receipt of hospital intimation from the Government Hospital, Rajahmundry, the Sub-Inspector, I-Town (L&O) P.S. visited the hospital and recorded the statement of P.W.1 on 1.3.2006 at 8.30 hrs and on that basis registered the case in Cr.No.77 of 2006 under Sections 302, 307, 326, 498-A read with Section 114 IPC. Thereafter, the Inspector of Police, Rajahmundry took up and conducted the investigation of the case. P.W.10 the Civil Assistant Surgeon, District Hospital, Rajahmundry conducted autopsy over the dead body of D1 and opined that he died of haemorrhage due to multiple injuries anti-mortem in nature and P.W.9 Civil Assistant Surgeon in the same hospital conducted post-mortem examination over the dead body of D2 and opined that she died due to haemorrhage due to anti-mortem cut injury of neck with involvement of the grate vessels of the neck left side. 4. For the prosecution, P.Ws.1 to 16 were examined and Exs.P1 to P21 and M.Os.1 to 18 were marked and for the defence, none was examined, but Ex.D1 was marked. 5. The case of A1 and A2 is of total denial of the charges and also incriminating evidence adduced against them. 6. On the consideration of the matter, the learned Sessions Judge having held A1 to be guilty of the charges framed against him and accordingly convicted and sentenced him as stated supra, further held that the prosecution failed to prove the guilt of A2 and as such gave benefit of doubt to him and accordingly acquitted him of the charges. 7. Therefore, it is to be mainly considered for the purpose of disposing of the appeal as to whether the prosecution placed sufficient evidence in order to establish the charges under Sections 302, 307 and 326 against A1. Since the charges against A2 have not been established, Section 114 IPC has no application here. 8. P.Ws.1 and 2 brother and mother of D1, son and wife of D2, examined as direct witnesses deposed about the incident. They also identified M.O.1 as the weapon used by A1 to cause the injuries. P.Ws.4 to 6 residents of same locality where the incident took place and P.W.7 resident of Pallakadiam were examined as circumstantial witness to the incident. P.W.8 was examined to speak about A1 purchasing the knife in his shop and identification of the knife. P.W.1 to P.W.6 and P.W.8 supported the prosecution version while P.W.7 did not. P.Ws.9 and 10 Medical Officers deposed about the autopsies over the dead bodies, P.W.11 another Medical Officer deposed about treating P.Ws.1 and 2 and issuing wound certificates, P.W.12 deposed about standing as mediator for scene of offence observation panchanama, inquest over the dead body of D1 and arrest of A1 and A2 and confession of A1 leading to the recovery of knife, P.W.13 deposed about inquest over dead body of D2, P.W.14 Head Constable of the Police Station deposed about receiving information from the hospital about the injuries caused to P.Ws.1 and 2 and informing about it to the S.I. of Police, I Town P.S. Rajahmundry, P.W.15 S.I. of Police, I Town P.S. Rajahmundry deposed about receiving necessary information and recording the statement of P.W.1 and registering the case and P.W.16 the Inspector of Police, Rajahmundry Town deposed about the investigation of the case. 9. Whereas, P.Ws.1 and 2 supported the prosecution version as direct witnesses, P.W.3 deposed that on the relevant night at about 1.30 a.m. one Sreenu approached her and informed that dispute took place at the house of the deceased and then she left her house and found P.Ws.1 and 2 with bleeding injuries and when she asked P.W.2 about it, the latter informed her (P.W.3) that her son-in-law caused the injuries and then she went into the house of P.Ws.1 and 2 and found the dead bodies of D1 and D2. 10. P.W.4 deposed that during the fateful night A1 knocked the doors of D2 and half an hour later only D2 opened the doors and then A1 and A2 went inside the house and at about 1 a.m. he heard the cries of A1’s son. She also deposed that some time later, she found A1 jumping over the backside wall of the house of D2. P.W.4 deposed in her cross- examination that her house was at a distance of 100 yards from the house of D2. In such case, it was not possible to notice during that night that A1 knocked the doors of the house of D2 and later A1 and A2 entered the house and she heard the cries of A1’s son and she also noticed later that A1 escaped from the scene, which proves that she is only a planted witness. 11. P.W.5 deposed that during the relevant night at about 4 a.m. while he was walking being the watchman of Doctors Apartments there he noticed one person taking a child on a Scooter while the child was crying. There was no identification of the said persons by him by which his evidence is not helpful here. 12. P.W.6 deposed that during the fateful night she opened the doors of his house and found P.W.1 with bleeding injuries and P.W.1 informed him that A1 hacked him, P.W.2 and both D1 and D2 and then he went to the house of the deceased and found P.W.2 with bleeding injuries and he also found P.W.3 and others and on the advice of some neighbours gathered there, he brought one Auto and then himself and P.W.3 shifted P.Ws.1 and 2 to the Government Hospital, Rajahmundry. 13. P.W.9-Civil Assistant Surgeon at District Hospital, Rajahmundry deposed that on 1.3.2006 at about 4.40 p.m. she held post-mortem examination of D2 on receiving requisition from I Town P.S. Rajahmundry and found cut injury on the front side of the neck on the left side below the chin between the mandible and thyroid cartilage i.e. straight oblique downwards and laterally to the left upto supra clavicular area extending from the right side submandiblar area, spindle shaped with clean cut with everted edges with gaping of the wound with ovation of the bone flop of the wound exposing severed structures of that area exposing the skin, muscles, vessels, nerves, cartilages and trachea covered with blood clots measuring 4” x 1” x 1”. Further she deposed that on internal examination, she confirmed the external injury and opined that the cause of death was due to shock and haemorrhage as a result of that cut injury of the neck and the time of death was about 12 to 24 hours prior to the post-mortem examination. She further opined that the injury sustained by the deceased was possible in the ordinary course of nature to cause the death being fatal injury. She also opined that the injury may be possible by means of a knife like M.O.1. 14. P.W.10-Civil Assistant Surgeon, District Hospital, Rajahmundry deposed that on 1.3.2006 at about 4.40 p.m. she conducted post- mortem examination over the dead body of D1 on receiving requisition from I Town P.S. Rajahmundry and found the following injuries, namely; 1. A cut injury on the right side of the neck in the middle extending from the middle of the neck on the back to the front of the neck anterior to the sterna mastoid muscle of transverse spindle shape with clean cut margin and everted edges with gaping of the wound and retraction of the skin and muscle on the right side of the neck and exposure of the severed structures of that area including skin, muscles, nerves and vessels covered with blood clots measuring about 5” x 2” x 1” and cutting across the stenoid muscles. 2. Cut injury present on the right side of the face i.e. on the cheek oblique by downwards and medially to the midline extending from the posterior mandibular border on the right side of the mandible 1” lateral to the chin, spindle shaped with clean cut margins and everted edges with gaping of the wound with retraction of the skin and muscle on the mandible exposing the severed structures including skin vessels, nerves, muscles and mandible bone and lacerated injury on the earlobe of the right ear covered with blood clots about 3” long and 1 ½” width and bone deep. 3. Cut injury present on the left side of the neck below the left ear and left angle of mandible transverse, spindle shaped extending from the posterior border of the left sterno mustoid muscle 1” lateral to the midline on the left measuring about 2” x 1” x 1” with clean cut margins and everted edges covered with blood clots, exposing the severed structures of that area below the mandible border including skin, muscles, vessels and nerves. 15. She opined that the injuries were anti-mortem in nature and the cause of death was due to haemorrhage and shock due to the multiple injuries received and the approximate time of death was 12 to 18 hours prior to post-mortem examination. She further opined that all the three external injuries were particularly the injuries 1 and 3 were fatal and there was possibility of causing the death of the deceased with the cumulative effect of all injuries in the ordinary course of nature. She also opined that the injuries were possible by means of a knife like M.O.1. 16. P.W.11 Civil Assistant Surgeon, District Hospital, Rajahmundry deposed that on 1.3.2006 at about 4.30 a.m. he examined P.W.1 and found the following external injuries: 1. Incised injury on the left parito occipital region 2” x ¼” x scalp deep. 2. Incised injury on the back of the head on hairline. 3. Incised injury vertical to the 2nd injury on the left side of upper end of the neck. 4. Compound fracture of the left hand with laceration of the dorsum of the hand with the extended tendons severed. 5. Incised injury on the left side of the chin. 6. Traumatic amputation of the middle phalanx of the right little finger. and he issued Ex.P5 wound certificate and the injuries sustained by P.W.1 were possible by means of a weapon like M.O.1. He further deposed that the injury No.1 and 4 sustained by P.W.1 with cumulative effect of other injuries are life threaten injuries. He also deposed that he examined P.W.2 at about 2.30 a.m. on 1.3.2006, but he mentioned the time as 2.30 p.m. instead of 2.30 a.m. According to him, he found the following injuries on P.W.2; 1. Big irregular laceration starting from the left side angle of the mouth averting lower 1/3rd of the ear upto the left half of the occipital region through and skin upto to the cavity of the mouth. 2. Big laceration of 6” x ½” x bone deep of the skull on the hair line of the back with bleeding present. 3. Laceration from the right angle of the mouth to the lobul of the right ear exposing parotid glands mandible. Bleeding present. 4. Vertical laceration on the centre of the lower limb from the skin to the inner aspect of mouth cavity with averting gum of 2” in length. 5. Traumatic amputation of the right index finger at the distal end of meta carpel bone with attachment of small skin tag. 6. Incised injury on the ventral aspect of the left fore arm lower 1/3rd 2” x ½ x muscle deep. 7. Laceration of 1” x ½” x bone deep on the medial aspect of back of the right thumb. 17. Before this Court, no dispute is raised about the scene of offence, inquest and medical evidence to consider aspects in detail. However, number of discrepancies are pointed with reference to the evidence of P.Ws.1 to 3, delay in giving the report to the police and sending the F.I.R. to the court which I examined. 18. P.W.1 deposed in his cross-examination that D-1 was shifted to Rajahmundry hospital on 06-07-2005 because treatment in Kakinada hospital was not proper and A-1 and his parents visited the hospital to see the newly born child who was delivered on 06-07-2005 and in fact P.W.2 admitted in his cross-examination that A-1 admitted D-1 in the hospital at Kakinada. P.W.1 also admitted in his cross-examination that A-1 took himself, his parents, D-1 and the child to Dwarapudi Ayyappaswami temple and also brought new clothes to D-1 and the child for January 1st festival. The learned defence counsel contends that all those circumstances emphasize that in fact there were no strained relationships between D-1 and A-1 even later to the birth of the child with regards to the paternity of the child and therefore it is something unnatural that A-1 had chosen to kill D-1 and D-2 having suspected the paternity of the child. 19. Further, P.W.1 testified that on seeing the child A-1 raised the issue of paternity which makes it clear in the circumstances of the case that it was done by him when he visited the child in the hospital. On the other hand, P.W.2 testified in his cross-examination that A-1 raised the topic at a later point of time that is twelve days after the delivery at their house which is contradictory to the deposition of P.W.1 noted above. Further, though P.Ws.1 and 2 alleged in their evidence that A-1 threatened to kill them for not sending D-1 along with them P.W.1 admitted in his cross-examination that they did not give any police report. The learned defence counsel contends that the discrepancy with regard to when A-1 raised the issue disproves that in fact A1 raised that dispute and further the conduct of P.Ws.1 and 2 in not giving any report to the police against such threats of A-1 is unnatural which therefore is not acceptable. 20. P.W.1 testified that while they were sleeping he heard the cries of D-1 and then he woke-up and switched on tube light and then witnessed A-1 hacking with the knife the neck of D-1 holding it with his right hand while catching hold of D-1 with his left hand and meanwhile D-2 woke up and asked A-1 to stop the violence and then A-1 hacked D-1 and D-2 following which D-2 fell down and meanwhile, his (P.W.1’s) mother woke-up. On the other hand, P.W.2 testified that while D-2 was waking-up, A-1 hacked on the neck of D-2. A-1 also deposed that the entire incident lasted for five minutes. The learned defence counsel contends that the evidence of P.W.1 that as A-1 hacked D-2, the later fell down and meanwhile, his mother woke-up falsifies that P.W.2 witnessed any part of the incident as narrated by him and further P.Ws.1 and 2 failed to account for as many as 18 hacking injuries received by them and so also received by D-1 and D-2 and the evidence of A-1 that the incident lasted for five minutes only is not acceptable which thereby throw lot of doubt about their veracities. 21. P.W.1 admitted in his cross-examination that there were two other doorways one from the eastern side and the other from the northern side to reach front side road and backside road and they used to close the eastern doors and open the northern doors. The learned defence counsel contends that when many inmates of the house were sleeping along with A-1 and A-2 and there was a possibility for some outsider to enter the house and the prosecution failed to establish any motive on the part of A-1 to kill D-1 and D-2 it is improper to hold that the incident was caused by A1 only. 22. Further P.W.1 deposed that at about 10 p.m. on that day himself and others had taken meals. P.W.10, the medical officer, testified that he did not notice any faecal matter in the large intestine of D-1 and further her urinary bladder was empty and it would take six hours for digestion of food. Further, P.W.9 who conducted autopsy over the dead body of D-2, deposed that it would take 8 to 10hours for the digestion of food. The learned defence counsel contends that if no faecal matter found in the large intestine of D-1 it can be logically concluded that she had gone for answering the calls of nature after 4 a.m. only which rules out that the incident would have taken place during mid-night and in addition to that if the evidence of P.W.9 is accepted, the incident would have taken place after 6 to 8 a.m. only. Further, whereas it is the evidence of the ocular witnesses that A-1 hacked the injured by means of knife, P.W.10 deposed that D-1 received lacerate injury on her right ear lobe which was caused by means of blunt object and further P.W.11 deposed that as per Ex.P-5, P.W.1 received an injury by means of a blunt weapon. 23. Further, P.W.1 deposed that at about 9 a.m. the police visited the hospital, but P.W.15 deposed that he recorded the statement of P.W.1 in between 6.30 a.m. and 8.00 a.m. and in his cross examination, P.W.15 deposed that he received Ex.P-7 intimation of accident and injuries at 8.30 a.m. and on the other hand, Ex.P-14, F.I.R. reveals that at about 9 a.m. relevant G.D. entry was made in the police station, which disprove that at 9 a.m P.W.15 recorded the statement of P.W.1. Further, the F.I.R. reached the concerned Court at about 2.30 p.m. The learned defence counsel contends that no explanation was given with regards to the discrepancies and the delay caused in recording the statement of P.W.1 and also sending the F.I.R. to the learned Court which therefore is fatal. 24. Further, the defence counsel contends that there is absolutely no evidence as to how the knife was brought inside for which adverse impression is to be drawn. Further, the evidence of P.W.1 discloses that he alone heard the cries of D-1 as A-1 attacked her