THE HON’BLE SRI JUJSTICE K.C. BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.A.NO.810 OF 2007 JUDGMENT (Per NRLN,J) The accused in Sessions Case No.386 of 1993 on the file of the court of Sessions Judge, Karimnagar who was convicted for the offence under Section 302 of the Indian Penal Code,1860 (IPC) and sentenced to undergo imprisonment for “life”, is the appellant herein. The case of the prosecution is that the deceased-Narsamma was aged about 60 years was suspected of sorcery by the accused and due to that on 15-12-1992 at about 11 A.M the accused armed with an iron rod entered into the house of the deceased, beat her and caused the death. PW.1 who is sitting opposite to the house of the deceased was slapped by the accused and threatened and thereafter PW.1 heard cries and went to the neighbours and informed PWS.2 and 3 who came to the scene and they also noticed the accused going away from the scene. On a complaint given by PW.1, a case in Cr.No.173 of 1992 under Section 302 IPC was registered and investigated into. During the course of investigation, the statement of witnesses was recorded and panchanama of the scene and inquest were held and thereafter the dead body was sent for Post Mortem examination and the Doctor who conducted Post Mortem opined that the death was due to haemorrhage and shock due to head injury. On 30-12-1992 the accused was arrested and in the presence of the panch witnesses he made a voluntary confession statement and in pursuance of which blood stained shirt was recovered in the presence of mediators and he was sent for remand. Thereafter, the investigation was completed and a charge sheet was filed against the accused under Section 302 IPC. The case was taken on file as PRC No.12 of 1993 by the Judicial First Class Magistrate, Sultanabad and it was committed to the court of Sessions and the learned Sessions Judge after the appearance of the accused framed a charge under Section 302 IPC for which the accused pleaded not guilty. On behalf of the prosecution PWS.1 to 12 were examined and marked Exs.P-1 to P-12 and MOs.1 to 9. Contradictions in the evidence of PW.4 and 6 were marked as Exs.D-1 and D-2. After the evidence of prosecution is over, the accused was examined under Section.313 Cr.P.C and no defence side evidence is adduced. After considering the evidence on record, the learned Sessions Judge found the accused guilty of the charge and accordingly convicted and sentenced him to undergo Life imprisonment. Aggrieved by the said judgment, the present appeal is fled. Heard both sides. The points that arise for consideration are:- (1) Whether the accused has committed the murder of the deceased? (2) Whether the conviction and sentence imposed by the learned Sessions Judge is legal and sustainable? POINTS:- In support of the prosecution case, PW.1 deposed that she is a resident of Kanagarthi village and she was staying with the deceased who is her maternal grand-mother. According to her, the accused is Erukala by caste and they belong to Medari caste. She also deposed about the location of the houses of PWS.2 to 4 in the neighbourhood. According to her, her mother Pandilla Narsamma came to Kanagarthi about three days before the incident. On the date of incident, she was alone in the house of deceased and at about 11 A.M she sat on the pail of the house. At that time the deceased Narsamma returned after the sale of the baskets. At that time the accused came to PW.1 with an iron rod, which she identified as MO.1 and he proclaimed that he would kill Narsamma and so saying he slapped on her cheek and asked her to go away. After repeated questioning by the Public Prosecutor she stated that the accused entered the hut of the deceased holding the iron rod. She heard the sound of “AMMA” and she went to the house of Eshwaramma who was examined as PW.3, who is also a neighbourer and informed about the incident. She along with PW.3 and PW.4 and her daughter saw the accused coming out of the hut of the deceased and going on the road. The clothes of the accused were bloodstained. They found the deceased in a pool of blood with injuries. She found Mo.1 iron rod, MO.2 axe and Mo.3 a stick by the side of the dead body. Thereafter, she gave Ex.P-1 complaint through Linga Reddy the teacher. About a month prior to the incident, the pigs of the accused damaged the maize crops and there was a quarrel between the accused and the deceased. In cross examination, she stated that she was staying with the Silveru Mallamma since childhood and her house abuts the road. There are neighboring house of Erukalas. According to her, on the date of incident she returned home after herself and two ladies came back to their houses. She further stated that one Deena Rao wrote the report as per the information given by the police. She does not know if the deceased suspected of sorcery. She denied that she was speaking falsity. In further cross examination by the Public Prosecutor an assertion was taken from her that she has seen the incident and also the accused entering into the hut of the deceased and attacking her. PW.2 is the other witness who deposed that PW.1 is the daughter of her younger sister and Pandilla Narsamma is the mother of Pw.1. The deceased is the wife of her elder brother. She has no children and Narasamma died one year one month back and thereupon disputes arose between the accused and deceased. She claims to have gone to sell the baskets in the morning along with Lasmamma and Pandilla Narsamma and returned. She was informed about the death of the deceased. She came back to the village and found Narsamma dead. She made enquiries. PW.1 who informed that the accused caused injuries to the deceased. The evidence of PW.3 is that she knows PWs.1, 2 and accused. According to her on the date of incident at about 11 A.M PW.1 came weeping and informed that the accused was beating the deceased. Then she and Ameena Bee heard the same and they found the accused running away and found blood stains on his shirt. Thereafter, she herself, PWs.1 and 4 along with her daughter Haneefa went to the hut of deceased Narsamma and found her dead. She also found MOs.1 to 3 at the scene of incident. The accused was not in the village for some time after the incident. The accused was also not keeping good health. In cross-examination, she stated that her house is at a distance of 50 to 60 yards from the pan shop of PW.4/Ameena Bee. Many persons used to sit in the pan shop. They can see the house of Erukalas only and not the houses of Medaras from the pan shop. She also deposed about the disputes between Erukalas and Medaras with regard to catering of pigs. According to her, she has seen the accused from the back side and the police came about 1.00 P.M. She also accompanied PW.1 to the police to the dead body. The evidence of PW.4 is also in conformity with the evidence of PW.1 and 3. She also states that on information given by PW.1, they have gone to the house of the deceased and she also noticed the accused going away from the scene. In cross examination she stated that the houses of Medaras cannot be seen from her house as the houses of Erukalas which were higher in level. She has been staying in the pan shop-cum-house since eight hours. She denied having stated as in Ex.D-1 to the police that her daughter saw the accused running away and informed to her. She also stated that some days after the incident, the huts of Erukulas were burnt. The evidence of PW.5 is that the deceased has got agricultural lands where she raised maize and green-gram and that the pigs of the accused spoiled the crop and therefore there was a quarrel between them. The accused intended to see the end of the deceased. The accused was also not keeping good health. His evidence is to prove the motive for the commission of the offence. PW.6 is the village servant and according to him he came to know about the death of the deceased and went to the house of the deceased and found injuries on her and inquired from PW.1 and he proceeded to Peddapalli in a private jeep and met the Sub-Inspector of Police and the police came and conducted the inquest over the dead body. He denied that he has stated to the police that some unknown persons have committed the murder of the deceased. The evidence of PW.7 is about the presence at the time of inquest over the dead body of deceased and also seizure of MOs.1 to 3 by police. The evidence of PW.8 is about the accused giving a voluntarily confessional statement in his presence and producing MO.6 shirt stains with blood. The evidence of PW.9 is about taking of photographs at the scene of incident. The evidence of PW.10 is about conducting the P.M examination and finding of the injuries, opining that the death of the deceased was due to haemorrhage and shock caused by head injury. The evidence of PWs.11 and 12 is about the investigation done by them in this case. The learned counsel for the appellant contends that there is no evidence to show that the accused has committed the murder of the deceased and the evidence of PWS.1 to 4 is inconsistent and the evidence of PW.1 as being an eye witness to the incident is not assertive and only after persistent questions from the Public Prosecutor she could say about the accused entering into the house of the deceased and caused injuries. Further the evidence of PW.2 shows that they have seen the accused from back side and therefore the possibility of identifying him is remote. Further more according to her deceased was suspected of sorcery and there are many enemies to her in the village and added to that there is a conflict between Erukulas and Medaras in the village and the accused being the man of ill-health could not have committed the offence. The learned counsel for the appellant also tried to contend that the post mortem report shows that there are several injuries, which could not have been possibly caused by an axe like Mo.1 and therefore the benefit of doubt has to be extended to the accused. She also stated that the so called confessional statement cannot be taken into consideration. On the other hand, the learned Public Prosecutor contends that the evidence of PW.1 is corroborated by the evidence of PWs.2 to 4 and even if there are any contradictions in the evidence of PWs.1 to 4, which are sought to be relied by the counsel for the appellant, they are minor contradictions, which will not shake the truth of the prosecution case and as such the lower court has rightly convicted the accused. In this case, there is positive evidence of PW.1, who has specifically stated that when she was sitting on the pile infront of her house, the accused came and beat her also and proclaimed that he will kill the deceased and then entered into the house. At the time of incident, it was broad day light and there can be no scope of lack of identification of any known person in the village. The contention that PW.1 is not assertively speaking to the incident is understandable because of the fact by the date of incident, PW.1 was a girl aged about 17 years and noticing the brutality and the conduct of the accused, she might have been frightened and may be in a fix whether to state the truth before the court or not but still she could say as to what has happened. In fact, there is absolutely no material to discredit her testimony. Apart from it she has immediately gone to PWs.2 to 4 and informed the incident and thereafter the accused was seen going away from the scene of offence and his clothes are also blood stained. The evidence of PW.1 therefore attracts all the requirements of res gestae and the evidence of PWs.2 to 4 can be taken as a corroboration of her evidence. The contention that from behind, the accused could not have been seen by PWs.2 is also not acceptable, because of the fact that the accused is not unknown person to PWs.2 to 4 and it was about 11 A.M in the morning and the place from where the accused was seen and PWs.2 to 4 were coming is not far off and therefore the statement of PW.2 cannot cut at the root of the evidence of PW.1 or PWs.3 and 4. Further, in the cross examination of PW.2, there is no further attempt to seek any explanation as to how she can identify the accused when she was seen the accused from the back side. Therefore, from the above material none of the contentions raised by the learned counsel to discard the positive evidence of PW.1 to 4 does not survive for consideration and the learned Sessions Judge has rightly accepted the evidence. Sofar as the medical evidence is concerned, it is to be noted that though PW.1 has stated that the accused armed with an iron rod, entered into the house at the scene of offence, MOs.1 to 3 different weapons were found and therefore the possibility of the use of those weapons by the accused taking advantage of the lonely women in the house, cannot be ruled out. Therefore, on an appraisal of the evidence before the trial court, we do not find any reason to interfere with the finding of the learned Sessions Judge and the conviction and sentence imposed by the learned Sessions Judge does not call for any interference. At this stage the learned counsel for the appellant pleaded for some leniency. Since the offence is one under Section 302 of IPC, there is no scope for extending any leniency since the accused had committed the offence with premeditation armed with deadly weapons and entered into the house of deceased who was lonely present. Accordingly, the Criminal Appeal is dismissed. ____________ K.C.BHANU,J ____________________ N.R.L.NAGESWARA RAO,J 21-12-2010 TSNR