IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY THE TWENTY THIRD DAY OF AUGUST TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE G.KRISHNA MOHAN REDDY CRIMINAL APPEAL No.1547 of 2007 Between: Vullungula Sambaiah .....APPELLANT/ACCUSED No.1 And: The State of A.P. through Sub-Inspector of Police, Guntur Rural, Guntur, rep.by Public Prosecutor, High Court, Hyderabad .....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON'BLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRIMINAL APPEAL No.1547 of 2007 JUDGMENT: (per Hon’ble Sri Justice V.Eswaraiah) This criminal appeal is filed by Accused No.1 against the judgment in Sessions Case No.44/2006 on the file of the VIII Additional District & Sessions Judge (Fast Track Court), Guntur, dated 27.09.2007 in convicting him for the charge under Sec.302 IPC and sentencing him for life imprisonment and to pay a fine of Rs.200/- and in default to undergo simple imprisonment for one week. 2. The case of the prosecution, in brief, is as follows: The appellant/A1 is the resident of Namburu village, Peddakakani of Guntur Rural, Guntur District. The appellant/A1 is the son of A2. PW 1, PW 2 and A2 are the brothers. The deceased is the son of PW 1, PW 3 and PW 5 are the brothers of the deceased. PW 4 and PW 11 are their neighbours. PW 7 is the son of PW 2. PW 6 is the wife of the deceased. PW 1, the father of the deceased gave Ex.P1 complaint to the police on 25.09.2005 at 9 a.m in which it is stated as follows: They are shepherds and living by tending sheep. He got three sons. His younger son is the deceased-Vullangula Hanumantharao. He has taken Ac.7.00 of land from Vuyyuri Brahmareddy on lease for a period of one year for grazing sheep. The agreed lease amount is Rs.3,000/-. His brother Veeraiah (A2) has got a buffalo and he requested to permit him to graze his buffalo in the said leased land of PW 1 on payment of Rs.400/- for one year. PW 1 agreed for the same. But, in spite of repeated demands made by himself and his deceased son, A2 did not pay the agreed amount even after two months of grazing of his buffalo, and was postponing the same on one pretext or the other. As he was repeatedly demanding to pay the lease amount, A1 and A2 grew wild and started scolding PW 1 and his deceased son, and therefore, PW 1 and the deceased objected the accused for grazing their buffalo in the leased land of PW 1. But the accused did not heed them and still they continued to graze their buffalo in the subject land. While so, on 24.09.2005 PW 1 and the deceased went to Guntur on their personal work and came back at 9.30 p.m. The second son of PW 1, namely, Sivanagaeswararao (PW 5) told the deceased stating that A1 came to the house in their absence and directed him to come to his house to collect the agreed amount. Then the deceased went to the house of the accused around 10 p.m. to collect the amount. PW 1 also accompanied him. But the moment they reached the house of the accused, A1 having seen them scolded them and stated that he was waiting for them, and so saying, A1 went into the house very speedily. Anticipating danger in the hands of A1, PW 1 caught hold of one of the hands of the deceased and advised the deceased to go away from the said place, but the deceased did not accept. Then PW 1 went for calling his brother, namely, Subbarao (PW 2) who got a cattle shed nearby the house of the accused. In the meanwhile, A1 axed on the head of the deceased, then the deceased has fallen down. A1 put his leg on the backside of the deceased, and then axed twice on the head of the deceased and fled away. PW 1 and PW 2 witnessed the incident in the lighting of the street bulb. PW 17-the Sub-Inspector of Police, Peddakakani PS registered the report given by PW 1 as a case in Cr.No.187/2005 under Sec.302 r/w.34 IPC on his file and sent copies of the FIR to all the concerned. Ex.P12 is the FIR. PW 16, the Inspector of Police, on receipt of the information from PW 17, proceeded to the scene of offence along with PW 17 and prepared ExP6 observation report, Ex.P10 rough sketch and recovered chappals and bloodstains at the scene of offence. MO.3 is the chappals. He recorded the statements of PWs 1 to 3, 5, 7, 8 and conducted inquest over the dead body of the deceased under Ex.P8-inquest report in the presence of PWs 12 to 14 and sent the dead body for post mortem examination. On 10.10.2005 PW 16 apprehended the accused and recovered MOs.1 and 2 i.e. Axe and stick. 5. PW 15 is the Professor in Forensic Medicine, Guntur Medical College who conducted post mortem over the dead body of the deceased Hanumantharao on 26.09.2005 and found the following external and internal injuries: External Injuries:- 1. Chopped injury measuring 10 x 2 cm, skull cavity deep present on left parito expital area 2 cm, lateral to mid parietal area of scalp. 2. Chopped injury measuring 7 x 2 cm present on upper part of nape of neck transverse direction cutting C2 and C3 (cervical) and corresponding cervical spine. 3. Chopped injury measuring 7 x 2 cm skull cavity deep, slight transverse direction present on posterior aspect of occipital area of scalp 4 cm above the injury No.2. 4. Incised injury measuring 15 x 0.25 cm x 1 cm transverse in direction in mid scapular area. 5. Abrasion 7 x 0.25 cm linear abrasion over the left scapular on back of chest. 6. Incised injury 7 x 2 cm on lower part of back of neck, a linear abrasion 4 x 1.5 cm over left shoulder. Internal Injuries: 1. Sundural and sub-arachnoid haemorrhage of left parieto-occipital area of brain (this is correspondent to injury No.1). 2. Sundural and sub-arachnoid haemorrhage of occipital area of cerebral hemispheres correspondent to injury No.2. PW 15 opined that the death was due to multiple touched injuries and the time of death was between 24 to 48 hours prior to the post mortem. Ex.P9 is the post mortem certificate. He also opined that the external injuries 1 to 3 and 4 could be possible by M.O.2-Axe. The injury No.6 could also be possible when a sharp edged weapon touched the superficial of the body. Further the said injuries were sufficient in the ordinary course of events to cause the death. In the inquest report also the same injuries were noticed. It is also noticeable that the deceased died of those injuries. 6. On the appearance of the accused, the learned Sessions Judge framed the charge against both the accused under Sec.302 IPC, read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried. 7. In support of its case, the prosecution examined PWs 1 to 17 and got marked Exs.P1 to P13 and Mos.1 to 3. After the completion of the prosecution side evidence, the accused were examined under Sec.313 Cr.p.c. and they denied the incriminating evidence adduced against them. No oral or documentary evidence was adduced on behalf of the accused. 8. On an analysis of both oral and documentary evidence, the learned Sessions Judge convicted the Accused No.1 for the offence punishable under Sec.302 IPC and sentenced him, as stated supra, and acquitted Accused No.2, as he was found not guilty of committing the offence punishable under Sec.302 IPC. Aggrieved thereby, this criminal appeal is filed by the Accused No.1. 9. The father of the deceased, Vullangula Brahmaiah examined as PW 1 deposed as follows: A1 is the son of his brother, and they are the residents of Namburu village. The deceased is his younger son and he has taken Ac.7.00 of dry land from Vuyyuru Brahmareddy on lease for Rs.3,000/- for grazing cattle for a period of one year. His brother-A2 wanted to graze his buffalo in the subject land and promised to pay Rs.400/- per year, and accordingly he agreed for the same. However, in spite of repeated demands made by him and his deceased son, A2 did not pay anything. He informed the same to his elder brother PW 2 about the attitude of A2. PW 2 advised A2 to pay the money as agreed, but A2 did not pay the same. On the day of the incident, himself and the deceased went to Guntur and returned back at 9.20 pm. His another son PW 5 informed them that A1 came to the house and stated that he would pay the money. Accordingly, the deceased went to the house of the accused to collect the money. PW 1 also accompanied the deceased to the house of the accused. He stated that the deceased went on cycle and he went on foot. By the time he reached to the house of the accused, there was an altercation between A1 and the deceased, and A1 was abusing his deceased son for frequently demanding the money. He went to the nearby house of PW 2, his another brother, and in the meanwhile, A1 came and beat with an Axe on the back of the head of the deceased. On hearing the cries, he turned back and found his deceased son on the ground. Then A1 put his foot on the back of the deceased, and beat on the head of the deceased with the same Axe. When they raised cries, PWs 8, 4, 11 and 14 came there. On seeing them, the accused ran away towards canal. PW 1 further stated that his son died on the spot. On the next day at 9 a.m. he went to the police station and presented Ex.P1 report. 10. On 01.08.2007 PWs 1, 2 and 3 were examined in chief and at the request of the defence counsel, the cross examination of PWs 1, 2 and 3 was deferred and the matter was adjourned to 03.08.2007. On 03.08.2007 when PW 1 was cross examined, he turned hostile. It is stated by him then that they have entered into compromise with the accused. It is admitted by him that the police came to the scene of offence and conducted inquest over the dead body of the deceased. 11. PW 2, the brother of PW 1, corroborated the evidence of PW 1. He also deposed as follows: He is having cattle shed near the house of A2 and he used to sleep there. At about 10 p.m. while he was sleeping, PW 1 came there and informed him that a galata was going on. He came out of the cattle shed, and witnessed the incident. According to him, further A1 gave three blows with the sharp edged portion of the Axe and gave two blows on the back of the deceased with the butt portion of it. In the cross examination also he stick on to his earlier version, as stated in his chief examination. He denied all the suggestions put on by the defence counsel. 12. PWs 3 and 5 other sons of PW 1 stated about the intention for causing the murder with regards to the lease amount of Rs.400/- for grazing the buffalo of the accused in the subject land, and about the incident that took place on 24.09.2005. When they were cross examined two days after their chief examination, they also turned hostile i.e, did not support the case of the prosecution. 13. PW 6 the wife of the deceased was examined on 03.08.2007 i.e. after the compromise, said to have been entered into between the parties. She stated that her husband was killed in September 2005 and his father-in-law-PW 1 took the land of Vuyyuru Brahmareddy for grazing sheep on a lease of Rs.3,000/- per year and A2 also used to graze his buffalo in the said land and agreed to pay Rs.400/-, but he had not paid the said amount. Her father-in-law told that in spite of repeated demands, A2 did not pay the said amount. 14. Though PWs 1, 3, 5, 7 to 14 have not supported the case of the prosecution, as per the evidence available on record with regards to the cause of death, as stated by PW 2, coupled with the evidence of PW 5- Doctor, the inquest report and post mortem reports, it is clear that the death of the deceased is homicidal. The next question that arises for consideration is who caused the murder of the deceased. 15. PWs 1 to 3 when examined on 01.08.2007, they supported the case of the prosecution, but when they were cross examined on 03.08.2007, except PW 2, PWs 1 and 3 did not support the case of the prosecution. PW 1 categorically stated that they entered into compromise with the accused. Therefore, it is obvious that they (PWs 1 & 3) did not support the case of the prosecution in the cross examination because they compromised with the accused, in spite of the fact that the offence punishable under Sec.302 IPC is not compoundable. 16. Though they have compromised, still whatever incriminating material is there against the accused is to be taken into consideration. It is reiterated the established principle of law that incriminating evidence deposed by even hostile witness is to be taken into consideration in order to prove a charge or charges in a criminal case. What is required is the overall and judicious approach of the matter or assessment of the matter and arrive at truth separating genuine evidence and false evidence and do justice to the accuser and accused. The evidence of PW 2 wholly and the evidence of PW 1 & PW 2 in their chief examinations is natural with regard to the lease of the land and non-payment of the lease amounts and also about the incidental murder. It is not a case of previous enmity between the parties whereas it is only a case of arising of a dispute to pay the lease amount and asking to pay the amount following which the alleged incident is said to have taken place. It is unbelievable that a false case was foisted due to any reason leaving the real culprits or culprit. In any case, in view of the absence of any prior enmity such a possibility is to be ruled out. Therefore, their evidence which is incriminating against the accused is to be accepted. 17. There is no dispute that the body of the deceased was found at the house of the accused. As per the evidence of PWs 1, 2 and 6, it is clear that as the accused agreed to pay a sum of Rs.400/- for grazing their buffalo in the leased land of PW 1 and when PW 1 and the deceased went to Guntur on the day of incident, in their absence, A1 went to the house of the deceased and informed the inmates of the house, to send the deceased to their house to collect the money and on receipt of information, the deceased and PW 1 went to the house of the accused, where the incident took place. The presence of A1 at the scene of offence is clearly established by the evidence of PWs 1 and 2. Though PW 1 did not support the case of the prosecution in his cross examination on the ground that they compromised in the matter by which it cannot be said that the evidence of PW 1 in his chief examination is falsehood. PW 2, being the eyewitness of the incident, clearly narrated the incident including the overt-acts of A1 against the deceased, as corroborated by the medical evidence. 18. The intention for causing the death of the deceased is the demand made to the accused to pay the lease amount of Rs.400/-. Emphatically A1 went to the house of the deceased and wanted the inmates of the house to send the deceased to collect the amount and when the deceased went there accordingly, instead of paying the amount involved in altercating with the deceased and then resorted to killing the deceased which clearly establish foul play and pre-determination to attach and cause injuries to the deceased or even to kill the deceased on the part of the accused. However, even assuming that there was no pre- determination to cause the death of the deceased, the way in which the injuries were caused by A1, as spoken by PW 2, establishes that A1 establishes that he developed intention to cause the death of the deceased and went into the house and came out with the axe and inflicted grave injuries with the same dangerous weapon and murdered him on the spot. In the facts and circumstances of the case, it cannot be said that there was a sudden provocation for causing such injuries, grave in nature. 19. We are unable to accept the contention of the learned counsel for the appellant/A1 that PWs 1 and 2 had not witnessed the incident and that PW 1 foisted a false case against the appellant/A1 whereas in fact, PW 1 having narrated the incident supporting the case of the prosecution in his chief examination after 3 days turned hostile during his cross examination as he entered into compromise with the accused and the evidence of PWs 1, 2 and 15 clinchingly establishes that in view of the injuries caused by A1 the death of the deceased took place. Further the fact that A1 involved in foul play by making the request to come to his house to receive the lease amount and involving in killing the deceased without paying the amount amply establishes that he had a motive to kill the deceased though there is no sufficient evidence about the actual reason to develop the motive. Even otherwise when there is direct evidence to prove the incident, establishment of the motive is not relevant. Therefore, we are of the opinion that the learned Sessions Judge rightly appreciated the oral and documentary evidence available on record and convicted the appellant/A1 for the offence punishable under Sec.302 IPC and sentenced him, as stated supra. We do not see any merit in the appeal and interfere with the well considered judgment of the learned Sessions Judge. The Criminal Appeal is accordingly dismissed. ________________ V.ESWARAIAH,J ___________________________ G.KRISHNA MOHAN REDDY,J Dated: 23.08.2011 Dsr