* HON’BLE SRI JUSTICE D.S.R.VARMA AND *HON’BLE SRI JUSTICE R.KANTHA RAO + CRL.A.NO.573 OF 2007 % Date: 22-09-2009 Between: # Alla Venkatalakshmi and another .. Appellants and $ The State of A.P., rep.by Public Prosecutor, High Court of A.P. Hyderabad., … Respondent ! Counsel for appellant: Sri E.V.Bhagiratha Rao ^ Counsel for respondent: Public Prosecutor < GIST: >HEAD NOTE: ? Cases referred: [1] AIR 2000 SC 1374 HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NO.573 OF 2007 Dated: 22.09.2009 BETWEEN: Alla Venkatalakshmi and another .. Appellants And The State of Andhra Pradesh .. Respondent HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NO.573 OF 2007 JUDGMENT: (Per RKR,J) This appeal is directed against the judgment, dated 19.04.2007 passed by the V Additional Sessions Judge, West Godavari District, Eluru in S.C.No.17 of 2003. 2. The appellants herein who are the accused before the learned Sessions Judge were tried for the offence under Sections 302 read with 34 IPC and they were found guilty by the learned Sessions Judge, and were convicted for the said offences and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/- each. 3. Challenging the said order of conviction and sentence, the appellants preferred this appeal. 4. We have heard the learned counsel appearing for the appellants and the learned Public Prosecutor for the State. 5. Briefly stated, the case of the prosecution is, as follows: The appellant No.1-A1 is the wife of the deceased and her marriage was performed 12 years prior to the date of incident. Few months prior to the incident A1 developed illicit intimacy with A2, which ultimately came to the notice of the deceased – husband as well as relatives and villagers. The deceased admonished A1 to discontinue her illicit intimacy with A2. But A1 did not mend her behaviour and continued the illicit intimacy with A2. The deceased also placed the matter before the near and dear, but invain. A panchayat was convened by the village elders at the instance of the deceased where at the elders admonished A-1 and A-2. The relationship between the deceased and A1 was therefore very much strained on the date of incident. A1 and A2 had conspired together to do away with the deceased, so that there will not be any hurdle to their illicit relationship. In furtherance of their common intention, they dug a pit in the granary of the deceased with a view to burry the dead body of the deceased. Thereafter, on 26.09.2002 at 11 PM while the deceased was sleeping on the floor, A2 entered into the house of the deceased and thereafter, he started beating the deceased with crow bar, for which, the deceased woke up and in that process, he received some injuries on the face. Ultimately, A1 and A2 caught hold of the crow bar on either side and placed it on the throat of the deceased and started pressing it to kill the deceased. The deceased struggled for life and raised cries, which attracted the attention of PW.1 – mother of the deceased, her children PW.2, PW.3, Alla Swathi (LW.5), PW.7 and PW.8. On seeing the said persons, A2 fled away from the house of the deceased. Thereafter, PW.7, PW.8 and Akiveedu Lakshmana Rao (LW.12) shifted the deceased to T.Narsapuram Police Station. PW.13 – S.I of police recorded the statement of the deceased, basing on which he registered a case in Crime No. 45 of 2002 for the offences under Sections 307, 324 read with 34 IPC and started investigation. Subsequently, the deceased – Alla Rama Brahmam succumbed to the injuries on 06.10.2002 in Community Health Centre, Chintalapudi while undergoing treatment. Pursuant thereto, the section of law was altered to one under Section 302 read with Section 34 IPC and another FIR was issued altering the section of law. PW.13 – Inspector of Police took up investigation and filed the charge sheet after completing the investigation. 6. The prosecution in order to establish the guilt of the appellants before the trial Court examined PWs.1 to 14 and marked Exs.P.1 to P.26. On behalf of the appellants, no witnesses were marked, but Exs.D1 to D3 were marked. 7. PWs.2, 3 and Alla Swathi (LW5) are the children of the first appellant and the deceased, PWs.1 and 2 did not support the prosecution version, as they are child witnesses aged 12 and 9 years respectively as on the date of their examination before the trial Court and perhaps they might be under the influence of their grand parents and they were unable to testify anything against their mother as well as A.2. Thus, the entire case of the prosecution mainly rested on Ex.P.21 – statement of the deceased recorded by the Sub-Inspector of Police under Section 161 Cr.P.C., which was rightly treated as dying declaration subsequent to the death of the deceased and also on the evidence of PW-1 the mother of the deceased.There being no direct witnesses to the actual occurrence the prosecution sought to establish the guilt of the appellants basing on Ex.P.21 – statement made by the deceased, the medical evidence and the evidence of PWs.1, 5 and 8. 8. PW.11 is the doctor who conducted autopsy over the body of the deceased and issued Ex.P.16 – wound certificate dated 17.10.2002 and Ex.P.27 – postmortem certificate dated 09.10.2002. PW.11 examined the deceased on 27.09.2002 at 10.30 AM and found the following injuries: i. a red lacerated ¾ inch x ½ inch on left lower front of the neck ii. a red lacerated ½ x ½ inch on the front of left clavicle. iii. A red lacerated ½ x ½ inch on right ear pinna. iv. A red lacerated ½ x ½ inch on right supra orbital region. v. A red abrasion of ½ x ½ inch on the right Mandibular Joint. In his opinion injury No.1 is fatal and the other injuries are simple in nature, caused with a blunt object within 24 hours prior to the examination of the patient. He further stated that the patient (deceased) died on 06.10.2002 at about 4.30 PM while undergoing treatment. His evidence also further discloses that the deceased informed him that he was beaten by known persons with a crow bar. In the opinion of PW.11, the injuries found on the deceased can be caused with the blunt portion of the crow bar. The cause of the death according to PW.11 is due to pressure over the neck leading to asphyxia and to that effect he issued Ex.P.17 – postmortem report. He also mentioned in the postmortem report that he sent the viscera to R.F.S.L., Vijayawada and the report received from R.F.S.L shows that there is no poisonous substance. 9. From the evidence of doctor – PW.11, it is obvious that the death of the deceased though occurred 10 days after the injuries, is undoubtedly homicidal and it might be due to causing pressure over the throat of the deceased which resulted in asphyxia. 10. Coming to the other evidence on record, PW.5 who is the Junior paternal uncle of the deceased stated in his deposition that there was illicit intimacy between A1 and A2 and ultimately the deceased placed the matter before the elders and in respect of which a panchayat was conducted whereat the elders including himself (PW.5) admonished A1 and advised her to desist from continuing illicit intimacy with A2. In spite of the said panchayat, it is stated that A1 continued her illicit intimacy with A2 and further more, she being ashamed for being called at Panchayat at the instance of the deceased developed grudge against the deceased. Similarly A2 also developed grouse against the deceased over the said cause. 11. PW.8, the uncle of the deceased also stated in his evidence that the deceased was unhappy and was feeling like insulted because A2 used to visit his house frequently and he was telling A1 not to allow A2 to his house and in spite of caution given by the deceased, A1 used to allow A2 to his house and that he placed the matter before the elders, in consequence thereto, mediation took place about 20 days prior to the death of the deceased and in the course of the said mediation, the elders advised A2 not to visit the house of the deceased and advised the deceased and A1 to lead their life peacefully. 12. Thus, from the evidence of these two witnesses, it is made out that there was illicit intimacy between A1 and A2 and a panchayat was convened in that regard at the instance of the deceased and as such, the prosecution in this case established through these two witnesses as well as from the contents of Ex.P.21 – dying declaration given by the deceased that both the accused had strong and enough motive to kill the deceased. 13. PW.1, who is the mother of the deceased stated in her evidence that A1, who is her daughter-in-law had extra marital relationship with the A2 and A2 used to come to the house of the deceased regularly on the pretext of watching the TV programmes. She further deposed that the deceased cautioned A1 not to allow A2 to their house, but A1 refused to communicate the same to A2. Thereafter, the deceased placed the matter before the village elders 10 days before the incident. She also deposed that in the panchayat, the elders advised the deceased and A1 to live amicably and not to allow A2 to their house and A1 accepted the advise given by the elders in the mediation. She further stated in her evidence that on the date of incident A1 asked the deceased to bring a crow bar from the fields. The deceased returned from the fields at about 8 PM. A1 prepared semiya payasam ( a sweet drink) and offered to her husband. The deceased who took it told her that it was tasting bitter and and he left some payasam. Thereafter, A1 served dinner to the deceased. 14. The evidence of PW.1 further discloses that while sleeping in the house, she heard cries of her son, she along with her husband and PW-2 went there. It was 12 mid night and she noticed A2 running from the house. She also noticed A1 arming with crow bar and her husband took the crow bar from the hands of A1 and placed it on the ground. Her evidence also discloses that there were injuries on the face and neck of the deceased and when she enquired the deceased, he stated that A1 and A2 caused injuries to him with crowbar. 15. Thus, PW.1, who is a natural witness said to be living by the side of the house of the deceased can be safely relied upon and though she did not witness the actual attack committed by A1 and A2, her evidence clearly shows that she found A2 running away and A1 arming with crow bar which leads no doubt on the aspect that A1 and A2 are the persons who actually attacked the deceased. Thus, the evidence of PW.1 is vital in proving the prosecution case. 16. The learned trial Court placing reliance on the above evidence, recorded conviction under Section 302 read with 34 IPC against A1 and A2 and sentenced them to punishment of imprisonment for life. In our considered view the evidence forthcoming which has been discussed hereinbefore leaves no manner of doubt whatsoever that the appellants and none others are the perpetrators of crime. The finding of guilt arrived at by the learned trial Court thus requires no interference in this appeal. The learned counsel appearing for the appellants contended that the evidence is not enough to convict the appellants for the offence under Section 302 read with 34 IPC and contended in the alternative that since the death of the deceased took place 10 days after the incident while he was undergoing treatment in the hospital, conviction under Section 302 read with Section 34 IPC cannot be sustained and the conviction could be under Section 304 Part-II of IPC. 17. There is absolutely no force in the contention of the learned counsel appearing for the appellant that merely because the death occurred few days after the actual incident, it cannot be said that the trial Court erred in convicting the appellants for the offence under Section 302 read with 34 IPC. The evidence above referred clearly indicates that both the appellants have strong motive to kill the deceased. The way in which they executed their plan clearly shows that it was well designed and pre-meditated. From the evidence, it is also borne out that they dug a pit to burry the deceased, after killing him, which clearly shows that their intention was only to kill the deceased, but not otherwise. 18. The evidence of PW.11 – autopsy surgeon shows that the death might be caused due to placing a crow bar over the throat of the deceased and using the pressure on the throat for which the corresponding injury according to him was found on the throat and the death occurred due to asphyxia. According to PW.11 – doctor, the said injury ultimately proved to be fatal. Therefore, the question as to when the deceased succumbed to the injuries is not of much importance and the punishment imposed by the learned trial Court needs no interference. 19. Therefore, we do not see any sufficient reason to alter the punishment to one under Section 304 Part II IPC. CAMILO VAZ v STATE OF GOA[1] relied upon by the learned counsel for the appellants was rendered relating to altogether different facts and circumstances of the case and is not applicable to the instant case where the fact situation is entirely different. 20. For the foregoing reasons the conviction and sentence passed by the trial Court against the appellants are confirmed and the appeal is dismissed. _________________ D.S.R.VARMA,J ___________________ R.KANTHA RAO,J Dated: 22.09.2009 Note: L.R. copy to be marked. B/o Kvrm [1] AIR 2000 SC 1374