IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT HON'BLE SRI JUSTICE K.C.BHANU AND HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.A.No.859 OF 2007 Date:23-12-2010 Between:- Relangi Adinarayana .. Appellant And The State of A.P., through Rajahmundry Rural Police, Rep.by Public Prosecutor, High Court of Andhra Pradesh. .. Respondent JUDGMENT:- (per Hon’ble Sri Justice N.R.L.Nageswara Rao) The accused in Sessions Case No.370 of 2006 on the file of the V Additional Sessions Judge, Fast Track Court, East Godavari at Rajahmundry, who was convicted for the offence under Section 302 I.P.C and sentenced to undergo imprisonment for life and also to pay fine of Rs.5,000/-, in default, to undergo simple imprisonment for three months, is the appellant herein. 2. The case of the prosecution is that the deceased Gelam Satyanarayana @ Sattibabu is a resident of Diwancheruvu village and Yadava by caste. The accused is toddy taper by profession and he is also a resident of the same village. The accused has occupied a house site in the tank bed situated by the side of road running from Diwancheruvu Centre to Srirampuram and there was a dispute between him and Vulli Ramu-P.W.11. The matter was placed before the elders and the elders directed the accused to remove the fence in which panchayat, the deceased was also said to be one of the members. As the accused has refused to do so, P.W.11 again complained to the deceased and other villagers and they visited the house of the accused and asked them to remove the fence. The accused did not accept their advise and therefore, the accused developed grudge against the deceased for consistent demand for removal of the fence and that on 28-03-2006, at about 8-30 a.m., when the deceased went to the hotel of Chitikena Vigneswarudu, as P.W.7, the accused went behind him and indiscriminately stabbed with a knife on his stomach, hands and right upper arm etc., with an intention to kill him. At that time, P.W.3 intervened and he also received injuries. The incident was witnessed by P.Ws.4 to 6. The deceased was taken to the hospital where his statement was recorded by the Sub Inspector and thereafter, a dying declaration was recorded by the Mandal Revenue Officer on the same day. The statement of the deceased was registered as a case in Crime No.52 of 2006 under Section 307 I.P.C. and was investigated into. During the course of investigation, the panchanama of the scene was conducted, statements of the witnesses were also recorded. P.W.3 was also sent for medical examination. While the investigation was pending, the deceased is said to have died on 14-04-2006 and the section of law was altered into one under Section 302 I.P.C. and the inquest was held on the dead body of the deceased and it was sent for examination. Before the alteration on 03-04-2006, the accused was arrested and his confessional statement was recorded and in pursuance of the contention, the blood stained shirt and knife were seized during the course of investigation and the properties were sent to Forensic Science Laboratory for examination. After completion of the investigation, the accused was charged for the offence under Section 302 I.P.C. 3. The case was taken on file as P.R.C.No.29 of 2006 by the II Additional Judicial First Class Magistrate, Rajahmundry and committed the case to the Court of Sessions and made over to the Court of V Additional Sessions Judge at Rajahmundry. 4. After appearance of the accused, a charge under Section 302 I.P.C. was framed, read over and explained to them and they pleaded not guilty. 5. On behalf of the prosecution, P.Ws.1 to 9 were examined and marked Exs.P-1 to P-29 and M.Os.1 to 7. The contradictions-Exs.D-1 and D-2 in the evidence of P.Ws.1 and 3 are marked. 6. After the evidence of the prosecution is over, the accused was examined under Section 313 Cr.P.C. and no defence evidence is adduced. 7. After considering the evidence on record, the learned Sessions Judge found the accused guilty of the offence charged and accordingly convicted him. Aggrieved by the said judgment, the present appeal is filed. 8. Heard the learned counsel for the accused and learned Public Prosecutor. 9. The points that arise for consideration are: “1) Whether the prosecution has proved that the accused has committed murder of the deceased? and 2) Whether the conviction and sentence imposed by the learned Sessions Judge is legal and sustainable?” 10. POINTS 1 & 2:- In support of the prosecution case, P.W.1, who is the brother of the deceased, claims to have come to the village after coming to know about the incident on 28-03-2006. At about 8 a.m., he received the information. He claims that the deceased was shifted to G.S.L. Hospital in an auto and the deceased subsequently died. According to him, there was a dispute between the accused and P.W.11 for which the deceased was hacked. Evidently, he is not a person who has witnessed the incident. P.W.2 is the son of the deceased who has come to know about the incident and later met his father at the hospital. The evidence of P.W.3 is that on the date of incident, he went to the pan shop of P.W.8 and also went to the hotel of P.W.7. There he saw the accused hacking the deceased on his shoulder, stomach and hands and when he intervened, he got a injury to his left wrist. He identified knife-M.O.4. According to him, the incident occurred at 8.30 a.m. He went to the house and police examined him at 4 p.m. Further, in the cross examination, he stated that he has no personal knowledge about the dispute between the accused and P.W.11 and he further stated that he was sent to the hospital by the police. The evidence of P.W.4 is that on the date of incident, when he was going to coolie work, he went to have a tiffin and he saw the accused hacking one person and he identified the knife-M.O.4 in the hands of the accused. He did not know other details since he belongs to a different village. The evidence of P.W.5 is that he was running an auto and on the date of incident, to take tiffin in Ganapathi hotel, he stopped there and he found the accused hacking another person on the shoulder, hand and stomach and he identified the accused as the person specifically and according to him, there was a dispute between the accused and some other, who was attacked by the accused. In cross examination, he stated that he is a resident of Rajahmundry and he did not give any particulars of his auto or registration to the police. He denied that he was present at the scene of offence. P.W.6 is Yadava by caste and according to him, he came to know about the dispute between accused and P.W.11 and he also went to the house of the accused for pacifying the matter and the accused bore grudge due to that. He has got a pan shop in the turning leading to Palacherla village and P.W.7 has got a hotel 20 or 25 meters away from his pan shop and on the date of incident at about 8 or 8.15 a.m., the accused came behind the deceased and hacked him with a knife on his shoulder and hands, and the deceased fell down and he identified M.O.4 as the knife used by the accused. He also spoke about the presence of P.W.3 and receiving of the injuries by him. The evidence of P.W.7 is that he is running a coffee hotel and on the date of incident, at about 8 or 8.30 a.m., the deceased was coming to the hotel and when the accused came behind and hacked him on the shoulder with a knife and again beat the deceased on the stomach, the deceased fell down and he also stated that P.W.3 sustained injury to his hand when he intervened. He spoke that the accused ran away with the knife. He further confirmed that there are disputes between accused and Vulli Ramu and the deceased acted as a mediator. The evidence of P.W.8 is that he owns a pan shop and knows P.Ws.1, 2, 3, 6 and 7 and on the date of incident, when the deceased was coming, the accused came from behind and hacked him on the left shoulder with a knife and also beat him. According to him, the deceased was taken to the hospital and there was dispute between the accused and P.W.11 and in that connection, the deceased approached an elder. The evidence of P.W.9 is about taking the photograph at the scene of offence. The evidence of P.W.10 is about the disputes between the accused and P.W.11 and the mediation held and the intention to settle the dispute on 28-03-2006 in the evening. He claims that he has come to know that the accused killed the deceased. The evidence of P.W.11 is that he is neighbour of the accused and there were some disputes between him and the accused with regard to the fencing and the deceased supported him and therefore, there was a proposed mediation on 28-03-2006 but the deceased was killed in the morning. The evidence of P.W.12 is that he is an elder of the village and he was asked to settle the dispute at the instance of the accused. The evidence of P.W.13, who is the Sarpanch of the village, is about the complaint given by P.W.11 against the accused to settle the dispute and the suspicion of the accused against the deceased and the ill will developed by him. The evidence of P.W.14 is about his presence at the time of inspection at the scene of offence and the recovery of the properties. He also spoke about the arrest of the accused and recording the confessional statement and seizure of M.O.4 and M.O.7. He also spoke about his presence at the time of inquest over the dead body of the deceased. The evidence of P.W.15 is about examining the deceased, that he was brought to the hospital on 28-03-2006 at 9.05 a.m. and noting the following injuries and sending intimation to the police. 1. An incised wound over the right lumbar region through which all the instines has come out. 2. An incised wound of 15 x 3 x 5 cms over the left iliac fossa. 3. An incised wound over the right shoulder measuring 20 x 5 x 5 cms exposing the bone. 4. An incised wound of 10 x 3 x 5 cm bone depth over the left hand on ulnar border. He also claims to have been present at the time when the dying declaration of the deceased was said to have been recorded by the Executive Magistrate. The deceased died on 14-04-2006 and he sent the death intimation-Ex.P-19. The evidence of P.W.16 is about conducting of post mortem examination with the dead body of the deceased and issuing certificate-Ex.P-20. The evidence of P.W.17 is about the recording the dying declaration of the deceased under Ex.P-21 after intimation from the doctor on the date of incident. The evidence of P.Ws.18 and 19 is about the investigation done by them in this case. 11. Learned counsel for the appellant strenuously contend that the evidence of P.W.3 being present at the time of incident at the scene of offence is highly doubtful since it is not supported by either P.W.1 or P.W.2 and he was not immediately sent to the hospital and the presence of P.W.3 at the hospital and P.Ws.1 and 2 visiting the hospital where the deceased was admitted is not believable. In this case, apart from the evidence of P.W.3, who is injured, there is the direct witness evidence of several persons in the neighbourhood, who have actually seen the attack on the deceased. The fact that all the witnesses know the coffee hotel or pan shop near the scene of offence is not disputed. Furthermore, the incident is said to have taken place, according to the prosecution, at about 8 or 8.30 a.m. and therefore, the possibility of the persons coming to the coffee hotel in a small village and gathering there cannot also be ruled out. Therefore, when such is the situation, there cannot be any doubt about the presence of the persons, who have deposed in support of the prosecution, who are P.Ws.3 to 7, in this case. The learned counsel for the appellant contends that the incident has taken place at about 6 a.m. and the accused was falsely implicated and none of the witnesses have seen the same and in order to support his contention, he wants to rely on the evidence of doctor and on Ex.P-19, which is the intimation received by the doctor at the time of admission of the deceased in the hospital. According to him, the time of offence is said to have been shown as 7.30 a.m. under Ex.P-19, whereas under Ex.P-18 police intimation, the time of offence has been noted as 8.30 a.m. by correcting it from 7.30 a.m. and also the time when the deceased was said to have been brought to the hospital is corrected from 7.05 a.m. to 9.05 a.m. and therefore, it is a case of manipulation of the record. We are not able to agree with the contention of the counsel for the appellant for the simple reason if the time of admission is taken as 9.05 a.m. being corrected from 7.05 a.m. even from Ex.P-19, it does not tally. Sometimes, some allowance has to be given to the memory of the persons, who give the timings and particularly, when villagers and lay persons admit the persons in the hospital, they may not have a clear time sense to fix them and therefore, such omissions or any contradictions are bound to arise. In this case, we have got the solid and unimpeachable evidence of P.Ws.7, 8 and 3 as to the attack on the deceased by the accused supported by the disputes spoken by P.W.11 and also the admitted mediation on 28-03-2006, which ultimately culminates the intention of the accused to attack the deceased and therefore, we do not find any error in appreciation of the evidence of the witnesses by the lower Court. The attempt made by the counsel for the appellant to pick out some minor contradictions in the evidence of P.W.3 or P.Ws.1 and 2 is of no avail. So also P.Ws.1 and 2 are evidently not witnesses to the incident and much information about the incident cannot be expected from them. Whatever may be the genuineness of the dying declaration, the statement recorded by the Mandal Revenue Officer does not fit in with the requirements, which are to be followed in recording the dying declaration, and therefore, we are not inclined to place reliance on that and more so because of the fact that though the deceased survived nearly more than 17 days after the incident, no effort was made by the police to record his dying declaration by Magistrate. Therefore, for all the above reasons, we have no hesitation in holding that the accused alone has attacked the deceased and caused injuries, as alleged by the prosecution. 12. The learned counsel for the appellant contends that the death of the deceased was nearly 15 days after the incident and he has survived and there is absolutely no intention to kill the deceased and there may be a knowledge that the attack on the deceased may cause the death and the provocation of the accused is the denial of P.W.11 to remove the fence and the interestedness shown by the deceased in acting as a mediator and therefore, the offence under Section 302 I.P.C. is not attracted. Taking into consideration the nature of the injuries and also the fact that the death was not immediate and he survived for nearly 15 days after the incident, it is a fit case where the accused can be convicted for the offence under Section 304 Part II I.P.C. and accordingly, we set aside the conviction of the accused under Section 302 I.P.C and accordingly, we convict him for an offence under 304 Part II I.P.C. 13. In the result, the conviction and sentence recorded against the appellant/accused in the judgment dated 31-05-2007 in Sessions Case No.370 of 2006 on the file of V Additional Sessions Judge (Fast Track Court), East Godavari at Rajahmunry for the offence under Section 302 I.P.C. are set aside, instead the appellant/accused is found guilty of the offence punishable under Section 304 Part II I.P.C., accordingly, he is convicted and sentenced to undergo Rigorous Imprisonment for five years. The period of remand underwent by the appellant/accused during investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. 14. Accordingly, the Criminal Appeal is partly allowed. _______________ K.C.BHANU, J ____​________________________ N.R.L.NAGESWARA RAO, J 23rd December 2010 AMD