THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.70 OF 2008 JUDGMENT: 1 A case in Crime No.34 of 2005 was registered against the appellant herein by the Ponnalur Police for the offence punishable under section 302 of IPC and after conducting a detailed investigation the police filed the charge sheet, which was taken on file as PRC No.16 of 2006 by the learned Judicial Magistrate of I Class, Kandukur and after committal the same was numbered as S.C.No.207 of 2007. During the course of trial, the prosecution examined P.Ws.1 to 12 and exhibited Ex.P.1 to P.15. The learned Sessions Judge at Ongole, having analysed the said evidence extensively, came to the conclusion that the petitioner is not guilty of the offence punishable under section 302 of PC, however, found him guilty of the offence punishable under section 304-I of IPC and accordingly convicted and sentenced him to suffer rigorous imprisonment for a period of ten years and also to pay a fine of Rs.100/- in default, to suffer simple imprisonment for a period of fifteen days. The said judgment is questioned in this appeal. 2 The case of the prosecution, in brief, is that one Jannalagadda Raju (P.W.1) is the minor son of the deceased Jonnalagadda Veeranjamma through her late husband Jonnalagadda Chennaiah. After the death of said Chennaiah, the appellant who discarded his first wife, married the deceased and that the appellant is of a suspicious character and he used to harass the deceased on the allegation that she was looking to the faces of others. While so on 25.12.2005 the appellant took the deceased and P.W.1 to Z.Mekapadu to a church for offering prayers and after return, the appellant, having asked P.W.1 to stay on the way, took the deceased saying to go to attend calls of nature to some distance on the tank bund and fell her down inside the tank bund and strangulated her. As the appellant and the deceased did not return and after waiting for some time, P.W.1 proceeded to the place of offence and saw the appellant strangulating the deceased and on seeing the same P.W.1 went in panic and ran to his hut and slept in the hut due to fear. On the next day morning P.W.5 went to the hut of the deceased and there he came to know about the act committed by the appellant through P.W.1 went to the place of offence along with others and found the dead body of the deceased. Thereafter a panchanama was recorded and in that connection a case in Cr.No.34 of 2005 under section 302 of IPC was registered and investigated into and after completion of investigation the charge sheet was filed. 3 Heard both sides. 4 Mr. Surender Reddy learned counsel for the appellant submitted that the trial court erred in convicting the appellant on the highly and improbable testimony of the prosecution witnesses. Further, according to him the alleged offence took place on 25.12.2005 whereas the F.I.R. was registered on 27.12.2005 i.e. after a lapse of more than 24 hours and similarly there was a further delay in sending the said F.I.R to the concerned criminal court and hence these circumstances clearly prove that the entire case is foisted for obvious reasons. 5 On the other hand the learned Additional Public Prosecutor while opposing the said submissions made by the learned counsel for the appellant submitted that there is a clear, cogent and convincing evidence placed by the prosecution on the basis of which only the trial court found the appellant guilty of the offence punishable under section 304-I of IPC. 6 P.W.1 is the son of the deceased and he was aged about 11 years at the time when he gave evidence. The court below after asserting the fact that P.W.1 is in a position to give proper evidence only, recorded his evidence and his evidence clearly establishes that the appellant has committed the said offence. In fact, a perusal of the said evidence clinchingly establish that the appellant alone is responsible for the death of the deceased. There is absolutely nothing to discredit the said testimony of P.W.1, who is a child witness. In his evidence P.W.1 categorically narrated as follows: “………. Having waited for about 5 or 10 minutes approximately, for both did not turn up I proceeded towards them to notice them, by that time I reached them I noticed the accused tied the saree of my mother around the neck of my mother and tying from both ends of the saree (throttling). On seeing it I felt afraid and raised a huge cry and from that when the accused was chasing me I run over out of his clutches and reached home at Vorugantivaripalem.” 7 As stated supra, there is absolutely nothing to discredit the said testimony of P.W.1. He is the eye witness who has seen the appellant committing the said act and the court below had rightly come to the conclusion that the appellant is guilty of the offence punishable under section 304-I of IPC. Accordingly I see no merits in this appeal and the same is thus dismissed. 8 At this juncture, the learned counsel for the appellant Mr. Surender Reddy submitted that the appellant surrendered himself before the court on 20.04.2007 and ever since he is in jail. He further submitted that even during the course of trial, the appellant was in jail and as on date he had suffered imprisonment of about 3 ½ years and he requested the court to take a lenient view in so far as the quantum of sentence is concerned. 9 This court is unable to appreciate the said submission. Because of the act committed by the appellant P.W.1 lost his mother. In those circumstances, this court cannot reduce the said sentence to that of the period already undergone. However, having regard to the fact that the alleged offence took place on 25.12.2005 and the appellant is having two more daughters and his age is 40 years, the said sentence of imprisonment for a period of ten years imposed by the trial court is reduced to Six years. -------------- 16.11.2010 Kvsn