THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1487 of 2007 Dated : 30.06.2011 Between : M.Nagaiah …. Appellant-accused a n d The State of A.P. … Respondent THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1487 of 2007 JUDGMENT: (per The Hon’ble Sri Justice A.Gopal Reddy) This Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) is filed by the appellant- accused questioning the judgment of conviction passed in Sessions Case No.281 of 2006 by the I Additional Sessions Judge, Krishna at Machilipatnam, on 16.08.2007 wherein the appellant was convicted under Section 235 (2) Cr.P.C. and sentenced to suffer life imprisonment for the offence punishable under Section 302 of Indian Penal Code (for short ‘IPC’). 2) The Prosecution story as unfolded during the course of trial, in brief, is that the marriage of the deceased was performed with the accused about 8 years prior to the incident in the present case and they blessed with one male and one female child. Sometime after the marriage, accused started suspecting the fidelity of the deceased and used to pick up quarrel with her frequently. The matter was informed to elders and they also admonished the accused. While so, the doctor advised the deceased to undergo operation since she was suffering with stomach pain. Hence, on 27.04.2006 the deceased along with her mother went to Valivarthipadu village to the house of Singavarapu Papa and informed her about her ill-health and returned back at about 3 p.m. On the same day night at about 9.00 p.m. after having dinner, accused called the deceased for having sexual intercourse, to which the deceased refused. On that the accused strongly suspecting her fidelity stated that she is interested to participate in intercourse with her paramours only but not with him and picked up a knife, switched off the light and hacked the deceased indiscriminately, as a result of which she sustained incised wounds on her chest, hands, legs, thighs and all over the body and she raised hue and cry and on hearing the same children woke up and they also raised cries. On hearing the hues and cries, neighbours rushed to the spot, broke open the door and shifted the injured to Area Hospital, Gudiwada. On receipt of intimation from hospital, the ASI of Police visited hospital and recorded the statement of the deceased, basing on which, a case in Crime No.43 of 2006 for the offence punishable under Sections 324 and 307 of Indian Penal Code was registered. While undergoing treatment on 05.05.2006 the deceased succumbed to injuries. Subsequently, the Section of Law was altered to Section 302 IPC. 3) The investigation agency after completion of entire investigation and receiving necessary certificates filed charge sheet against the accused for the offence punishable under Section 302 IPC and the said charge sheet was numbered as P.R.C. No.43 of 2006 by the Judicial Magistrate of First Class, Kaikaluru. 4) On committal of said P.R.C., the Court of Sessions registered the same as S.C.No.281 of 2006. The learned Sessions Judge examined the accused under Section 228 of the Code of Criminal Procedure and framed charge under Section 302 IPC, in which, the accused denied the charge and claimed for trial. 5) In order to prove the guilt of the accused, Prosecution examined PWs 1 to 14 and marked Exs.P.1 to P.19 apart from marking MOs 1 to 9. After closure of Prosecution evidence, accused was examined under Section 313 Cr.P.C. in which he denied the incriminating evidence put to him available in the evidence of Prosecution witnesses. On behalf of the accused, D.W.1 was examined and Ex.D.1 was marked. After hearing the arguments on both sides and on appreciation of entire evidence, the learned Sessions Judge rendered the impugned judgment as stated above. 6) Heard the learned counsel for the appellant and the learned Public Prosecutor for the State. 7) PWs 1 and 2 are the mother and father of the deceased respectively. P.W.3 is the son of the deceased and the accused. P.W.4 is the person who shifted the deceased to hospital. P.W.5 is the sister of P.W.1 and according to her the deceased informed her in the hospital that the accused hacked her with knife. P.W.6 is the witness for inquest. P.W.7 is the photographer, who took photographs of the scene of offence. P.W.8 is the witness for scene observation report. P.W.9 is the Additional Judicial First Class Magistrate, who recorded the dying declaration of the deceased. P.Ws. 10, 11 and 13 are the Investigation Officers. P.W.12 is the Civil Assistant Surgeon who sent intimation to Police about the admission of the deceased into hospital. P.W.14 is the Professor in Forensic Department, who conducted Post- mortem examination over the dead body of the deceased. 8) P.Ws 1 and 2, who are the mother and father of the deceased respectively, are not eyewitnesses to the incident. According to them, the marriage of the accused and the deceased was performed eight years prior to the incident, they lived happily for some time and they blessed with a son P.W.3 and a daughter. They also deposed that the accused used to pick up quarrel with the deceased suspecting her fidelity and also used to beat her and in that connection a panchayat was held by the elders at the instance of her parents wherein the elders have admonished the accused. They further deposed that due to complication at the time of delivery of the second child, the deceased used to suffer from stomachache and doctor advised operation for the same. Therefore, the deceased asked the accused an amount of Rs.5,000/- for getting operated. When the accused expressed his inability to give the hospital expenditure, the deceased approached P.W.1 and she also expressed her inability for the same and advised the deceased to request her sister for such amount. Accordingly, herself and the deceased went to P.W.1’s elder sister by name Papa on 27.04.2005 and she assured them to be present at the time of operation and make the payment. After returning back to the village, the deceased left to her house. On the same day at about 9 or 9.30 p.m. in the night when PWs 1 and 2 were sleeping in the house, they heard cries, upon which they came out of the house and their neighbours informed them that the accused hacked the deceased. By the time PWs 1 and 2 reached the house of the deceased, the deceased was already taken to Government Hospital, Gudiwada. Immediately, PWs 1 and 2 rushed to the Hospital and enquired with the deceased and the deceased informed them that the accused wanted her for sexual intercourse for which she refused on the ground of pain in stomach. On that accused quarreled with her as to where she was for throughout the day and also accused her that she was going around the people and developing contacts and therefore she was not co-operating with him in matrimonial life. The deceased also informed them that the accused hacked her with a Kamma Kathi on the left side of her neck and both hands. 9) P.W.3, who is the son of the deceased and the accused, is an eyewitness to the occurrence and narrated about the incident. P.W.3 being a child witness, the learned trial Judge put some questions to him to ascertain his capacity to give evidence and after satisfying that he was sufficiently intelligent and can understand what he was deposing and after observing the demonour, his evidence was recorded wherein he deposed that on the date of occurrence in the night his father came to the house in a drunken state, sat on the stomach of his mother holding knife and hacked her indiscriminately. Thereafter, M.Pushpaleela, Pandu and Kamalamma took his mother to hospital and he went towards the house of his maternal grand father to call him. 10) The dying declaration recorded by the Magistrate is marked as Ex.P.7 wherein it is categorically stated by the deceased that the accused brought a knife and kept at his head and after altercating for some time with her, he hacked her with the knife on her right hand, right shoulder and all over the body and she does not know who shifted her to hospital. The statement recorded under Ex.P.11 by the A.S.I, Mudipepalli Police Station, is also in consistency with the dying declaration. 11) P.W.4, the neighbour, who shifted the deceased along with others to hospital, stated that she saw the accused coming out of the house holding knife in his hand stained with blood. According to this witness, the accused again went into the house and took clothes and left the scene of offence. The deceased also informed this witness the reason for the accused hacking the deceased. 12) The above evidence also has been corroborated with the medical evidence. Further, the Forensic Science Laboratory Report marked as Ex.P.18 establishes that MOs 5 to 7, the blood stained lungi, the blood stained shirt and the blood stained towel recovered from the possession of the accused, contain human blood. 13) The entire incident has occurred inside the house and P.W.3, who is none other than the son of the accused and the deceased, deposed regarding the offence committed by the accused. Added to this, the accused is continuously absent from the house after the occurrence and even after coming to know about the deceased admitting in the hospital, he has not visited the hospital to see the deceased, which can be treated as a link to connect the accused with the commission of the offence. 14) After carefully going through the entire evidence, we are of the view that the learned Sessions Judge is right in accepting the evidence of the prosecution and coming to the conclusion that it is the accused, who committed the offence. This Court is not able to see any illegality or perversity in the impugned judgment to entertain the present appeal. Hence, the criminal appeal has to fail. 15) Accordingly, the Criminal Appeal is dismissed confirming the judgment dated 16.08.2007 passed by the I Additional Sessions Judge, Krishna at Machilipatnam in Sessions Case No.281 of 2006. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J 30th June, 2011 sur