THE HON'BLE SRI JUSTICE A. GOPAL REDDY & THE HON'BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No.86 OF 2008 JUDGMENT: (Per the Hon’ble Sri Justice A. Gopal Reddy) The appellant-sole accused was put on trial for the oﬀence under Section 302 IPC for causing death of Orumpati Sekharaiah alias Sekhar, S/o Jalaiah (hereinafter called as ‘the deceased’) in S.C.No.180 of 2004 on the ﬁle of the I Additional District & Sessions Judge, Nellore and was convicted for the said oﬀence and sentenced to undergo life imprisonment and to pay a ﬁne of Rs.500/- and in default of payment of ﬁne, to undergo simple imprisonment for a period of six months. The prosecution story against the accused as unfolded before the trial Court is stated briefly as under: The accused, deceased and material witnesses are the residents of Pallipadu village. P.W.3-O. Bhaktavatsalam is the husband of P.W.4 and younger brother of the deceased. P.W.5 is the elder sister of the deceased Sekharaiah. The accused married one Lakshmikanthamma, the daughter of aunt of P.W.4 and so, he is related to P.Ws.3 to 5 and the deceased. Out of their wedlock, they were blessed with four children, but none of them survived and later, they were blessed with one male child. When the disputes arose between P.Ws.2 and 3 regarding usage of passage in front of the house of P.W.3, the accused interfered in the matter and tried to pacify the same. Five months prior to the death of the deceased, the accused peeped inside the bathroom (Tadikala Doddi) of P.W.4, while she was taking bath. She raised shouts on suspicion that somebody peeped into the bathroom and reported the matter to her husband-P.W.3 when he returned home in the night, and on the direction of her husband, she reported the matter to the deceased. Thereafter, the deceased along with P.W.3 went to the house of the accused and questioned him for his indecent behaviour and slapped him on his cheek with his hand. There was some altercation between the accused and the deceased. Then, P.W.3 took the deceased to the house saying that there should not be any galata. Keeping that in mind, on 18.2.2004 on Sivaratri day at about 5 p.m., the accused keeping a knife at his waist went to Porlukatta where the deceased was playing Atchu Bomma (head and tail country game) along with P.Ws.1, 2, 6, 8 and 10 and 13 and others and stood behind the deceased. After waiting for some time, the accused took out a knife from his waist and cut the throat of the deceased and escaped from there. On being informed, P.Ws.3 and 4 went to the spot, P.W.5, who is residing at Gudur, on being informed about the incident, went to the Pallipadu village. On 18.2.2004 at about 19.45 hours, on receipt of telephonic information, P.w.15-S.I. went to Pallipadu village, where P.w.7 gave Ex.P4 report to the S.I. P.W.15 posted a guard at the scene of oﬀence and returned to the police station and registered Ex.P-4 as a case in Crime No.15 of 2004 for the oﬀence under Section 302 IPC and submitted Ex.P-12 FIR to the Court. On issuing FIR, P.W.16 went to Pallipadu village and took up investigation. On the next day at 6 a.m., P.W.16 secured the presence of P.Ws.7 and 9 and examined the scene of oﬀence and prepared the observation of the scene viz., Ex.P-5 and rough sketch of the scene of oﬀence Ex.P13 and got the deceased photographed under Ex.P14 along with negative. During the course of observation of the scene of oﬀence, P.W.16 seized M.Os.1 to 6 and 8 and held inquest over the dead body of the deceased and prepared Ex.P-6- inquest report in the presence of mediators. While so, the accused surrendered before the Court on 21.2.2004 and P.W.16 took the accused into police custody on 23.2.2004 and secured the mediators viz., P.Ws.9 and 12 and in their presence, interrogated the accused and on his confession, P.W.16 seized M.O.7-knife, which was produced by the accused, under Ex.P-9. Later M.O.9-lungi and M.10-shirt of the deceased were handed over to the police after post mortem examination. The properties were sent to the RFSL, Guntur for chemical examination. On completion of the investigation, P.W.16 ﬁled the charge sheet before the learned IV Additional Judicial Magistrate of First Class, Nellore and the learned Magistrate took the case on ﬁle and committed the same to the Court of Sessions, Nellore. On committal, the learned Sessions Judge registered the same as a Sessions Case and made over the same to the learned I Additional District & Sessions Judge, Nellore, for disposal. The learned Sessions Judge after hearing both sides framed charge for the oﬀence punishable under Section 302 I.P.C against the accused, read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried. In order to substantiate its case, the prosecution examined as many as 16 witnesses as P.Ws.1 to 16 and got marked Exs.P1 to P18 and material objects -M.Os.1 to 11. After completion of the prosecution evidence, the accused was subjected to 313 Cr.P.C., examination. He denied the same and he had not chosen to lead any oral evidence, but he got some portions of 161 Cr.P.C. statement of P.W.3 marked as Exs.D1 and D2. On appreciation of oral and documentary evidence, the learned Sessions Judge found the accused guilty of the charge under Section 302 IPC and convicted and sentenced him to undergo life imprisonment and also to pay a ﬁne of Rs.500/- in default to undergo simple imprisonment for a period of six months. The accused was provided with a legal Assistant by the Legal Services Authority for preferring the appeal. Smt.S. Sasikala, learned Counsel for the appellant strenuously contended that P.Ws.1, 2, 6, 8 and 13, who are projected as eye witnesses, had not supported the case of the prosecution and they were treated as hostile witnesses and that the child witness-P.W.10, whose name was not shown in the inquest report, was examined and basing on the evidence of P.W.10, the Court below convicted the accused, but it is unsafe to rely upon the evidence of the child witness when the other eye witnesses turned hostile. On the other hand, the learned Additional Public Prosecutor sustained the conviction by taking us through the entire evidence adduced by the prosecution. No doubt, all the eye-witnesses viz., P.Ws.1, 2, 6, 8 and 13 had turned hostile and they have not supported the case of the prosecution. P.W.4-who is the wife of P.W.3 stated that ﬁve months prior to the incident, while she was taking bath in a bathroom (Tadikala Doddi), which is attached to her house, the accused came inside the house and saw her, while she was taking bath at about 7 p.m., and then, she raised shouts as ‘who is there’ and went inside her house and that her husband came to the house at about 10 p.m., or 11 p.m., on that day and then, she informed him about the incident, and that her husband directed her to inform the same to the deceased and on the next day morning, she went to the house of the deceased and at that time, the deceased was not in house and at about 7 p.m., or 8 p.m. he came to his house and on the next day, she informed the deceased about the incident and then, her husband and the deceased went to the house of the accused and questioned him for his indecent behaviour and the deceased slapped the accused on his cheek with his hand. The evidence of P.W.3 is in corroboration with that of P.W.4. P.W.3 further stated that on the date of incident, he returned home at Pallipadu at 5 p.m., and about 10 children of his village, who are aged about 15 years, came to him and informed him that the accused had cut the throat of the deceased-elder brother at Yetikatta of the village, while they were playing Atchu Bomma game. In the cross- examination, he deposed that he came to know about the incident at about 6 p.m. and he did not state before the police as in Ex.D1. He deposed that he has not informed to the elders of the village about the incident that the accused peeped inside the bathroom while his wife was taking bath and he only informed to the deceased elder brother and he has not given any report against the accused. When a question was put by the Court that his wife is the daughter of the junior paternal uncle of the wife of the accused, he admitted the same and deposed that he has not informed about the incident to the police. To another question of the Court, he stated that the accused gave a report to the police in respect of the slapping incident and the police had not examined the deceased elder brother and his wife in connection with the report given by the accused. P.W.5-elder brother of the deceased visited the scene of oﬀence on the information about the death of the deceased. P.w.7-V.R.O., stated that while he was in Grampanchayat oﬃce, P.W.13 came to him and informed that one person by name Orumpati Sekharaiah was found dead on the Yetikatta of the village and then, he went to the spot and sent a report through a village servant and Ex.P.4 is the report sent by him to the police. He also mediated to the seizure of M.Os.1 to 4. He deposed that the deceased was in the habit of taking liquor and making galatas in an inebriated condition. P.W.10, who is the child witness, deposed that while he was going to the shop, he went to the place where the deceased, Mohan, Chalamaiah, Chetty and some others of Pallipadu village were playing Atchu Bomma game at Porlukatta and some time thereafter, the accused came to the spot and started witnessing the game and after half a hour thereafter, the accused removing the knife from his waist and saying to the deceased “Eerojutho Nee Aayussu Theerindira” cut the throat of the deceased and that all the persons, who were there, started running from that place and that the deceased after going to some distance fell down and died and that P.W.10 went away from that place and returned the said place by 9 p.m., and by that time, he went there, there were number of people belonging to his village and they were saying that 5 months ago when sister- in-law of the deceased was taking bath in her bathroom, the accused had peeped inside the bathroom and Padmamma had informed the same to the deceased and when the deceased questioned the accused, the accused told him as what happened when he peeped inside and then, Sekharaiah i.e., the deceased had beaten the accused and keeping that grudge in mind, the accused had murdered the deceased. He admitted in the cross-examination that P.W.3, C. Venkataramanaiah and himself sat on the table at the other Court and that himself and P.W.3 belonged to the same community. He did not inform the relatives of the deceased about the incident. P.W.12 is a mediator to the seizure of M.O.7 knife. He deposed that the accused led him, P.w.9, C.I. and the staﬀ to the sandy quarry which is in between Veguru and Leguntapadu and there is a dilapidated well and by the side of the said well, there was some grass and the accused removed the grass and picked up a knife and produced the same and the C.I. seized it. P.W.13 who is one of the witnesses to the incident though declared hostile, admitted that on that day, himself, the deceased, Chalamaiah, Yellareddy, Seshaiah Chetty, Mohan, Mahadeva, Hanumanthu (P.W.10) played Atchu Bomma game. P.W.16-Investigating Oﬃcer, who obtained custody of the accused in the presence of P.Ws.9 and P.W.12, seized M.O.7and after post mortem examination, he obtained clothes of the deceased M.Os.9 and 10 and sent the same for examination to the RFSL. It is the case of the prosecution that there was an altercation between the deceased and the accused in respect of the incident happened ﬁve months prior to the death of the deceased viz., when the accused peeped into the bathroom while P.W.4 was taking bath in her bathroom and keeping that in mind, the accused killed the deceased. In this regard the evidence of P.W.4 is corroborated with the testimony of P.W.3 and their evidence in their cross- examination remained unshaken. Thus, the prosecution could able to prove the motive for commission of the offence. Perusal of Ex.P18-RFSL report discloses that on items No.1,2,4,5,6 and 7 viz., (1)one blue coloured left foot slipper; (2) Earth; (4) One torned light rose coloured with red colour checks designed full sleeved shirt with dark brown stains; (5) One black coloured with white and red colour ﬂowers and dots designed lungi; (6) One knife and (7) One snuﬀ colured with white colour stripes designed full sleeved shirt’, human blood is detected and the Blood group detected on item Nos.4,5,6, is of B group. According to the report, lungi, shirt and the knife contain same blood group viz., B. The blood group on the knife is matching with the blood found on the clothes of the deceased. Therefore, it can be said that Ex.A18 clearly establishes that M.O.7, which was produced by the accused, was the weapon used for commission of the offence. It is the contention of the learned Counsel for the appellant that the Court below having believed the evidence of sole witness viz., P.W.10, who is the child witness, convicted the accused, but it is not safe to rely upon the solitary testimony of child witness to convict the accused. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be inﬂuenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. The only precautions the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. P.w.10 was aged about 15 years at the time of incident and his evidence is not shaken in any aspect in his cross-examination. Apart from that, P.W.13 deposed about the presence of P.W.10 at the time of the incident along with deceased and others. On close scrutiny of evidence of P.W.10, this Court is convinced about the quality thereof. It is now well settled that the quality of evidence is required to prove the case of the prosecution but not the quantity of evidence and where the testimony of a single eye witness is of such sterling quality the conviction can be based thereon. Under the above circumstances, we have no hesitation to hold that the prosecution established the case of the prosecution beyond all reasonable doubt and the judgment under appeal does not warrant any interference by this Court and hence, the appeal is liable to be dismissed. Accordingly, the Criminal Appeal is dismissed. No order as to costs. ___________________ Justice A. Gopal Reddy __________________ Justice R. Kantha Rao Date: 16.11.2011 Nn THE HON'BLE SRI JUSTICE A. GOPAL REDDY & THE HON'BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No.86 OF 2008 (Judgment delivered by the Hon’ble Sri Justice A. Gopal Redy) 16.11.2011