THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.141 OF 2007 Between Golla Kanakaiah …Appellant-accused And State of A.P. rep. by Public Prosecutor, High Court of A.P. Hyderabad. …Respondent-Complainant THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.141 OF 2007 JUDGMENT: (per the HON’BLE SRI JUSTICE K.C.BHANU) This Criminal Appeal by the appellant-sole accused under Section 374 (2) of the Criminal Procedure Code, 1973 (for short ‘Cr.P.C.’) is directed against the judgment, dated 29-11-2006, in Sessions Case No.470 of 2004, on the file of the Sessions Judge, Mahabubnagar, whereunder and whereby the appellant-accused was convicted of the charge under Section 302 of the Indian Penal Code, 1860 (for brevity ‘IPC’) and sentenced to undergo Imprisonment for Life and also to pay a fine of Rs.500/-, in default to undergo Simple Imprisonment for a period of one year. 2. Brief facts, that are necessary for disposal of the present appeal, may be stated as follows: Golla Kistanna (hereinafter referred to as ‘the deceased’) and the accused are residents of Jamisthapur village and they are neighbourers. Two years prior to the incident, the accused tied his cattle and goats towards backside house of the deceased. The deceased and his wife asked the accused to stop tying cattle stating that their house was damaging. Then the accused picked up a quarrel and the matter was placed before the village sarpanch and elders, who advised to stop tying cattle near the wall of the house of the deceased. Three days thereafter, the accused tried to repeat the same objectionable conduct and threatened the deceased with dire consequences. While so, on 01-03-2004, the deceased and his wife went to the agricultural field to watch the crop. At about 11.00 P.M., when they were sitting front of bonfire in the field, the accused came there armed with an axe and beat on the head of the deceased from behind, as a result, the deceased fell down and died on the spot. Then wife of the deceased raised hue and cry and chased the accused, but he escaped. Later, she gave a report to the police, basing on which, police registered a case, examined the witnesses and recorded their statements, seized M.Os.1 and 2, conducted inquest over the dead body of the deceased and subjected the dead body to postmortem examination and after completion of investigation, filed the charge sheet. 3. The learned Sessions Judge, framed the following charge against the accused: “ That you on or about 1st night of March, 2004 at agricultural fields situated in the limits of Jamisthapur at about 11.00 PM did commit murder by intentionally causing the death of Golla Kistanna s/o Golla Laxmaiah, age 38 years resident of Jamisthapur, by axing and that you thereby committed an offence punishable under Section 302 IPC.” When the above charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 11 and got marked Exs.P-1 to P-15 besides case property, M.Os.1 to 5. 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. No evidence either oral or documentary was adduced on behalf of the accused. 6. The trial Court after analyzing the oral and documentary evidence on record, found the accused guilty and accordingly convicted and sentenced him as above. Challenging the said conviction and sentence, the present appeal has been preferred by the accused. 7. Learned counsel appearing for the appellant-accused contended that P.W.1 is totally an interested witness and her evidence cannot be believed in view of the fact that herself and her paramour Chindarpally Raju are responsible for causing the death of the deceased, that except the interested testimony of P.W.1, there is no other evidence available on record to substantiate the case of the prosecution, that the case of the accused is that P.W.1 and her paramour Chindarpally Raju attacked the deceased, that P.W.1 took the deceased with a pre-plan to the agricultural field and at that time, the accused and Raju beat the deceased with an axe, whereas P.W.1 fisted the testicles of the deceased, causing his death and that is the reason why, the police and inquest mediators found swelling of testicles during inquest and hence, he prays to set aside the conviction and sentence recorded against the accused. 8. On the other hand, counsel representing the learned Public Prosecutor contended that the evidence of P.W.1 is very clear that the accused is the assailant of the deceased, that there is no grouse or enmity for P.W.1 to foist a false case against the accused, that the presence of P.W.1 at the time of incident is not in dispute, that the trial Court after elaborate consideration of evidence on record, rightly convicted and sentenced the accused and hence, absolutely there are no grounds to interfere with the said conviction and sentence. 9. Now, the point that arises for consideration, in this Criminal Appeal, is whether the prosecution has proved its case, against the accused of the charge under Section 302 IPC, beyond all reasonable doubt? 10. P.W.5 is one of the inquest mediators who was present when the police conducted inquest over the dead body of the deceased under Ex.P6. The inquest mediators opined that the deceased would have died as a result of head injury. 11. P.W.8 is the doctor, who conducted autopsy over the dead body of the deceased found one deep cut injury 2” x ½” x 1” left side of head with cut (fracture) of left parietal and frontal bones and he issued Ex.P11 postmortem certificate. He did not find any injuries on the testicles of the deceased, but in Ex.P6, the inquest mediators and police found right side testicle was swelling. They found white and green colour a man’s lower garment, red and black colour thread. It is mentioned that after completion of inquest only, the clothes will be seized. In such a case, there was no scope or possibility for the inquest mediators to find swelling on the testicles. So, the doctor evidence is very clear that he found only ante-mortem injury and corresponding internal injury. It is not the case of the doctor that the head injury associated with the fisting of testicles was the cause of the death of the deceased. The cause of the death as spoken to by P.W.8 and as recited in Ex.P11 remained unchallenged. Therefore, homicidal nature of the death of the deceased is established beyond reasonable doubt. 12. Now it has to be seen whether the accused is the assailant of the deceased or not? 13. Scene of offence is not in dispute. P.W.5 is one of the panchayatdars when police observed the scene of offence. The accused and P.W.1 took the deceased to the field in a pre-plan manner with a view to eliminate him so that she can continue her extra marital relationship with Chindarpally Raju. On that aspect, several suggestions were given to P.W.1, but all the suggestions were denied. Mere hurling of suggestions is not evidence. As the accused had taken a plea that P.W.1 and Chindarpally Raju allegedly committed the murder of the deceased, it is for him to establish the same. For that purpose, he need not examine the witnesses, but he can as well elicit with regard to that aspect from the prosecution witnesses. There is no material elicited from the prosecution witnesses to infer that P.W.1 was having extra marital relationship with Chindarpally Raju. 14. P.W.1 is having four children, two male and two female. After keeping them in the house, herself and the deceased went to the field with a view to watch the red gram crop. They put up the fire near the place of incident. At about 11 P.M., the accused came from behind and beat the deceased with an axe, as a result, he fell down. Then immediately she went to the village, which is situated at a distance of ¼ K.M from the scene of offence and informed the same to Sarpanch, Anjineyulu, who was examined as P.W.4. She also got scribed Ex.P1 through one Ramulu. The fact of P.W.1 went to the house of P.W.4 was also spoken to by P.W.4. Then, P.W.4 immediately rang up to the police and informed the same. After informing the same to P.W.10, P.W.10 came to the village and proceeded to the field and found the dead body as well as P.W.1. Then P.W.1 presented Ex.P1-report to P.W.10. Then he sent it to the police station for registering the case. P.W.9 registered a case and informed the same to P.W.11. 15. With regard to actual timings, there is some discrepancy in the evidence of P.Ws. 1 and 4. According to P.W.1, the incident had taken place at about 11.00 P.M., whereas P.W.4 stated that P.W.1 came to the house at about 10.00 P.M. even prior to the incident in question. According to him, police came to the scene of offence at about 10-30 or 11.00 P.M. According to P.W.10, he rushed to the scene of offence on receipt of information at about 11.30 P.M. on 01-03-2004. Then he proceeded to Jamisthapur village, which is at a distance of 8 K.Ms. from Rural Police Station, Mahabubnagar, which can be covered within 10 or 15 minutes. Therefore, at about 12 mid- night he visited the scene of offence and found the dead body. P.W.1 is a rustic witness. Simply because there is a discrepancy with regard to actual timings of the incident and P.W.1 going to the house of P.W.4 to inform about the incident, it cannot be a ground to disbelieve the entire prosecution case. The discrepancy with regard to actual timing is minor in nature, which cannot go to the root of the prosecution case because her presence at the time of incident at the scene of offence has been admitted. She is a solitary eyewitness to the incident. When a case rests upon the solitary testimony of a witness, it must be unimpeachable, true and trustworthy. If the evidence of P.W.1 is put in the category of wholly reliable, then there is no legal bar to base a conviction solely on the testimony of P.W.1. On this aspect, it is pertinent to refer to a decision reported in VADVIVELU THEVAR V THE STATE OF MADRAS [1], wherein it was held thus: “Generally speaking oral testimony in this context may be classified into these categories, namely: (i) Wholly reliable (ii) Wholly unreliable (iii) Neither wholly reliable nor wholly unreliable In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach on suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.” 16. According to P.W.1, three days prior to the death of the deceased, a quarrel was ensued between the deceased and the accused. The dispute is with regard to tying of goats and cattle to the adjacent wall of P.W.1 and the deceased. In that quarrel, the accused threatened the deceased with dire consequences and in that regard, a panchayat was held. 17. P.W.4 who is one of the village elders has specifically stated that there was no occasion for him to hold a panchayat with regard to disputes between the deceased and the accused. The dispute between the deceased and the accused is very trivial in nature and the same cannot be shown for the accused to entertain an intention to kill the deceased. Therefore, there was no motive for the accused to commit murder of the deceased. Motive is not an integral part of the crime, but it is only an aid and assessment of the criminality. When there is a direct acceptable evidence, motive loses its significance. There must be strong ill-will or grouse or enmity for P.W.1 to foist a false case against the accused. In the cross-examination of P.W.1, nothing has been elicited for her to entertain a grouse to implicate the accused falsely. Therefore, in the absence of any grouse or enmity for P.W.1 to implicate the accused, question of false implication in a case of this nature may not arise. 18. The other evidence available on record is, the evidence of P.W.11, who is the investigating officer said to have arrested the accused and in pursuance of his confessional statement, M.O.5, which is the weapon of offence allegedly produced by the accused was seized. The mediators who were present at the time of disclosure statement of the accused and the accused leading the mediators and the police to his house and producing M.O.5 have not been spoken to by them. Except the evidence of P.W.11, there is no other evidence that M.O.5 was seized in pursuance of the confessional statement given by the accused. Even assuming for a moment that as pointed out by the accused, M.O.5 was seized, but it is not shown that it was used in the commission of offence because it does not contain any human blood stains. 19. In view of the fact that the presence of P.W.1 is established at the time of incident and there is no other reason for her to implicate the accused falsely, that she scribed the report immediately after the incident and handed over to the police as soon as P.W.10 rushed to the scene of offence on telephonic information from P.W.4, it can be said that the accused is the assailant of the deceased. The earliest version as stated in Ex.P1 would go to show that she went to the field along with her husband to guard paddy and ragi crop and watching the field by putting flames. At about 11.00 P.M., the accused suddenly came from behind and hacked the deceased on the left temporal region, as a result, he fell down. The earliest version with regard to sequence of events and the purpose for which P.W.1 and the deceased went to the field putting flames and chit-chatting with each other, the accused coming from behind the deceased and hacking on the head, are completely in corroboration with the evidence of P.W.1. So in the earliest opportunity, P.W.1 has specifically stated that the accused is the assailant of the deceased. If really P.W.1 and Chindarpally Raju committed murder, there was a scope for P.W.1 to inform P.W.4 that some unknown assailants attacked the deceased in the darkness and she would have scribed a report in such a manner. She would not have implicated the accused falsely unless she was having a bitter enmity with him. There is no such bitter enmity against the accused. Therefore, the evidence of P.W.1 is convincing, true and trustworthy. Once the evidence of P.W.1 is put in the category of wholly reliable, law does not require any corroboration to such evidence and the Court can act upon on the solitary testimony and convict the accused. That is the reason why, the trial Court placed reliance on the evidence of P.W.1 and came to the conclusion that the accused is the assailant of the deceased. We have no hesitation to hold that it is the accused who caused single injury on the head of the deceased. This attack cannot be shown to be a pre- planned one. There was no reason for the accused to entertain an idea of killing the deceased. Since the accused is also an agriculturist and Shepard, there is a possibility for him to meet the deceased by chance in the fields. Therefore, some quarrel ensued between the accused and the deceased and in that quarrel and in the heat of passion, the accused must have inflicted an injury on the head. If really he has an intention to cause the death of the deceased, he would have repeated the blows. In the facts and circumstances of the case, we are of the opinion that the act of the accused is squarely falls under exception 4 to Section 300 IPC, which is punishable under Section 304 IPC. In view of the fact that the weapon of offence, i.e, axe and the part on which the deceased sustained injury is very vital one and causing half of the damage to the brain, the intention of the accused is to inflict blow, which is likely to cause the death of the deceased. But, it was done upon a sudden fight and a sudden quarrel without taking any undue advantage by the accused. Therefore, the conviction and sentence recorded by the trial court against the accused of the charge under Section 302 IPC are liable to be set aside and the accused is liable for punishment under Section 304 Part I IPC. 20. In the result, the conviction and sentence recorded against the appellant-accused of the charge under Section 302 IPC, by the Sessions Judge, Mahabubnagar, vide judgment, dated 29-11-2006, in Sessions Case No.470 of 2004, are set aside. However, the appellant- accused is found guilty of the offence punishable under Section 304 Part I IPC and accordingly, he is convicted and sentenced to undergo Rigorous Imprisonment for a period of seven years and also to pay a fine of Rs.1,000/-, in default to undergo Simple Imprisonment for a period of two months. Period of remand, undergone by the appellant- accused during the course of investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. 21. With the above modification, the Criminal Appeal is partly allowed. -------------------------------------- JUSTICE A.GOPAL REDDY ------------------------------- JUSTICE K.C.BHANU DATED: 21-06-2010 Hsd [1] AIR 1957 SC 614