HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1344 of 2007 JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) The State represented by the Public Prosecutor is the appellant herein and the acquittal of the accused in Sessions Case No.373 of 2004 on the file of the IV Addl. District & Sessions Judge, East Godavari at Kakinada, vide judgment, dated 25.04.2005, is under challenge. 2. The gist of the prosecution case is as follows: i) The accused is a resident of Atchutapuratrayam Village and his marriage with one Adabala Sujatha (hereinafter referred to as “deceased”) of Satywada Village was performed on 4.8.2001. At the time of marriage, on the demand made by the accused, the parents of the deceased gave Ac.0.30 cents of land, cash of Rs.10,000/- and Rs.15,000/- towards Adapaduchu Lanchanams. After marriage, the deceased joined the accused and they led marital life. After some time, the accused used to suspect the character of the deceased and harass her to sell the landed property and several times, he sent her to her parents’ house and, on one occasion, her parents paid Rs.25,000/- to the accused after mediations. Being not satisfied with that money, the deceased again started harassing the deceased and suspecting her character and also alleging her with extra marital connections. Thus, the accused harassed the deceased mentally and physically. ii) While so, when the accused and the deceased were staying in the house of P.W.4 on rent, the accused developed an intention to kill the deceased and, accordingly, on 4.6.2003 he secured an agricultural knife and concealed the same in his house and on the next day i.e. 5.6.2003 at 7.30 a.m. he picked up a quarrel with the deceased alleging that she is having illicit intimacy with the son of their house owner and when the deceased denied his accusation, he hacked her indiscriminately, as a result of which, the deceased collapsed in the room. On hearing the cries of the deceased, P.W.5, neighbour, came and witnessed the incident and when he tried to catch the accused, the accused threatened him with knife and absconded from that place. On receipt of information about the same, P.W.3, father of the accused, came and shifted the deceased to the Government Hospital, Kakinada, for treatment. iii) On receipt of police intimation by the duty doctor, P.W.15, H.C., O.P. Police Station, Kakinada, visited the hospital and recorded the statement of the deceased and on the point of jurisdiction transferred the case to Pedapudi Police Station. P.W.16 the Sub Inspector of Police, Pedapudi P.S. registered crime No.72 of 2003 for the offence under Section 307 IPC and took up investigation. Subsequently, on the strength of information that the deceased succumbed to injuries during the course of treatment, P.W.16 altered the Section of law from 307 IPC to 302 IPC and handed over the case to P.W.17 the Inspector of Police, Anaparthi Circle, for further investigation. After completion of investigation and on receipt of necessary reports from the authorities concerned, P.W.17 laid charge sheet against the accused for the offences punishable under Sections 498-A and 302 IPC. The plea of the accused was of total denial. 3. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 17 and got marked Exs.P.1 to P.19 apart from case properties M.Os.1 to 7 on its behalf. But, no oral or documentary evidence was adduced on behalf of the defence. 4. P.W.1 deposed that the deceased is his daughter. She was given in marriage to the accused about three years back. At the time of marriage, he presented Ac.0.40 cents of land towards dowry, gave gifts worth Rs.10,000/- and Adapaduchu Lanchanams of Rs.15,000/-. After marriage, the deceased joined her husband at Atchutapuratrayam Village and for six months they led happy marital life. When he brought the deceased to his home in Ashadamasam, the deceased informed that the accused tried to squeeze her neck and used to cause burn injuries with cigar stubs. After some time, the accused and his parents came and took the deceased. Two months prior to the death of the deceased, the father-in-law of the sister of the accused telephoned to him and asked him to come and take the deceased informing that the accused was harassing the deceased. Then, he sent his wife and later the accused and the deceased came to his house. He refused to allow the accused into his house and asked him to bring his parents and elders and then only he would send the deceased. On the next day, the father of the accused along with elders came and on their assurance, he sent the deceased. Ten days thereafter, he received a phone message that his daughter was admitted in the G.G.H., Kakinada, in a serious condition. Immediately himself and his wife rushed to the hospital and he observed that his daughter was not in a position to speak and when he enquired, P.W.3 Pullayya informed that the accused hacked his daughter and then they returned home. On the next day, on coming to know about the death of his daughter, he went to the hospital and the M.R.O. held inquest over the dead body and Ex.P.1 is his statement recorded by the M.R.O. In cross examination, he stated that because of the differences arose between the deceased and her mother-in-law, the deceased and the accused separated from the family and lived in a rented house and he came to know about the harassment only through the deceased. He further stated that for the first time, on the next day of death of the deceased, he informed to police that the deceased informed about the harassment of the accused and prior to her death, he did not inform to anybody or give any police report. 5. According to P.W.2, P.W.1 is her husband and the deceased is her daughter. She deposed on the same lines as that of P.W.1 with regard to the marriage and presentation of gifts and land to the accused. She further deposed that after marriage, the deceased came to her house for Ashadamasam and then she observed scratch marks, injuries and some burn marks on the body of the deceased. The deceased informed that the accused caused the injuries and was harassing her demanding to sell the land given to her. Later, when the accused came to take her daughter, she refused to join, unless a separate residence is put up, thereupon the accused and the deceased were living separately in another house. One month 15 days thereafter, the husband of the sister of the accused telephoned that the deceased is in serious condition and asked her to come to Atchutapuratrayam. Immediately, she rushed there and then the deceased requested her to take her away informing that the accused is not looking after her and he is harassing her. Then, herself and her daughter came to their village and the accused also accompanied them. On seeing the injuries on the deceased, P.W.1 did not allow the accused to step into their house and sent him away. After five months, on the assurance of the father of the accused and the village elders, they sent the deceased. Within nine days, they were informed that the deceased was serious and she was admitted in the G.G.H., Kakinada. Then, herself and P.W.1 went there and observed the deceased with bandages to her head and hands and she was not in a position to speak and, on the advice of the villagers and elders, they returned to their village and, on the same day evening at about 6.00 or 7.00 p.m. they were informed that the deceased died. On the next day, they went to the hospital and the M.R.O. examined her and Ex.P.2 is her statement recorded by the M.R.O. 6. P.W.3 deposed that the accused is his son and the deceased is wife of the accused and their marriage was performed about three years back. For four months, they lived at his house and later misunderstandings arose between them and the deceased left to her parents’ house. For two months, the deceased did not come, thereupon himself, the accused and the village elders went to the house of the parents of the deceased and brought the deceased to their house. One week thereafter, at the request of the accused, the accused and the deceased lived in a rented house. On one day, a boy of their street informed that the accused and the deceased were quarrelling. Immediately he went and observed the deceased with injuries on her head and other parts and he has not observed the accused in the house. Immediately he admitted the deceased to the G.G.H., Kakinada and, when he enquired the deceased, she informed that on the previous day night, they went to a picture and in the morning she and her husband quarrelled and she received injuries and, on the same day at about 4.00 p.m. the deceased succumbed to injuries. In cross-examination he stated that on being informed by the boy, while he was going to the house of the accused, on the way he found the accused coming in opposite direction and observed injuries on his head and left hand palm. When questioned, the accused informed that the deceased inflicted the injuries and he has to go to police station. He further stated that the deceased informed that in a spur of moment, the incident occurred. 7. P.W.4 deposed that he knows the accused and the deceased and they were tenants in his house. On the date of incident at about 7.30 p.m., when he returned after fetching water, he observed the deceased with injuries in a pool of blood and the accused standing by the side and on seeing blood, he swooned and after 15 minutes he regained conscious and later the father-in-law of the deceased P.W.3 took the deceased to hospital. 8. According to P.W.5, the incident took place about two years back at about 7.00 or 7.30 a.m. and in the early morning, he went to collect tapped toddy and returned and while he was preparing his children to attend to school, he heard shouts from the portion of the accused. Immediately, he went and pushed the door and observed the deceased and the accused with hack injuries and he also observed a knife in the hand of the accused and snatched the same and he also took the knife from the hand of the deceased. Thereafter, the accused ran away in a perturbed stage. He observed the deceased with injuries on her head. On hearing his cries, father of the accused P.W.3 came and admitted the deceased in the hospital. In cross-examination he stated that by the time he pushed the door, he observed a third person who is aged about 23 or 24 years and he fled away after pushing him. 9. P.W.6 is the mediator. He deposed that the marriage between the accused and the deceased was performed about three years back and after marriage, the deceased joined her husband and for six months they lived amicably and thereafter, the deceased was brought by her parents. The deceased refused to join her husband, since he was physically harassing her as the land gifted to her was not sold. Later, the accused and his father came and requested him to mediate and then he advised P.Ws.1 and 2 to send the deceased and, accordingly, they sent the deceased by giving some amount. Two months thereafter, he came to know that the deceased was in a serious condition and she was admitted in the G.G.H., Kakinada. Then, he along with P.W.1 and others rushed there and he observed the deceased with bandages and she was not in a position to speak and at about 4.00 p.m. she died. In cross examination, he stated that the father of the accused P.W.3 came to him and requested to see that the deceased is sent to their house and the accused also came to him thrice and requested to see that the deceased is sent. 10. P.W.7, Panchayat Secretary, deposed that on 5.6.2003 he along with the Sarpanch of the village were present, when the police observed the scene which is the house of P.W.4. They observed blood stains on the floor, varandah and on the door. They also observed a shirt, a lungi and handle of a suitcase having blood stains and also cut hair of a male person. He is the scribe of Ex.P.3 observation report of scene of offence. The S.I. of police seized the above said articles in his presence. M.O.1 is the green coloured lungi with flower design. M.O.2 is the Kanakambaram coloured shirt. M.O.3 is the cement coloured suitcase. 11. P.W.8 is the M.R.O. He conducted inquest over the dead body of the deceased and recorded the statements of P.Ws.1 and 2. At the time of inquest, he observed bandage to the head and hand of the deceased, a green coloured shirt M.O.4, Kanakambaram coloured jacket M.O.5, dark green coloured half saree M.O.6 on the dead body. The elders opined that the deceased would have died due to hack injuries over the head, face and body. Ex.P.4 is the inquest report. 12. P.W.9 is the photographer who took photographs on the dead body of the deceased. P.W.10 is the Village Assistant Secretary. He deposed that he is the scribe of the inquest report in Ex.P.4 and at the time of inquest, he found injuries on the dead body of the deceased and it is opined that the deceased would have died due to hack injuries caused by the accused with a knife suspecting her fidelity. He further deposed that on 8.6.2003 at about 4.00 p.m. he along with the present Sarpanch of Atchutapuratrayam were called by the C.I. of Police and they all went to a metal road in between Kovvada and Ramachandrapuram villages and they observed the accused near a tree and when he was perturbed, the C.I. detained and enquired him and, when he was interrogated, he made a confession and promised to show the knife used by him in the occurrence. Pursuant to his confession, the accused led them to the bushes by the side of the house of P.W.4 and produced M.O.7 knife. Ex.P.7 is the mediators’ report for recovery of M.O.7 knife. In cross examination, he stated that the signature of the accused was not obtained in his confession statement and at the time of his arrest, they observed the accused having injuries on his forehead, left thumb and stomach. He further stated that it is also brought to their notice that the accused gave a complaint to Pedapudi P.S. that his wife deceased caused injuries to him and that he was referred to the G.G.H., Kakinada, by Pedapudi police. 13. P.W.11 is the doctor who examined the injured-accused and observed the following injuries: 1. A lacerated injury 6 x ½ cm musle semi lunar sharp present over middle of the fore head, active bleeding. 2. Abrasion 1 x 1 cm present over left thumb 3. Seven linear lacerated injuries 1 x ¼ cm, skin deep each present over the gastric and umbilical region. 4. He opined that the above injuries are simple in nature and they could have been caused by hard and sharp object. He issued Ex.P.8 wound certificate. He opined that the above injuries are simple in nature and could have been caused by a hard and sharp object and Ex.P.8 is the wound certificate issued by him. In cross examination, he stated that the injured-accused alleged that the injuries were caused by his wife with a knife. 14. According to P.W.12, he conducted post mortem examination on the dead body of the deceased and found the following injuries: External injuries: 1. A surgically sutured wound of 5 cm in length with 4 black thread stitches is present on the occipital region of the scalp, one end of which is 9 cm above the upper attachment of left ear and other end is 10 cm above the external occipital obliquely placed. Brown scab is present. 2. A surgically sutured wound of 1 cm in length with the black stitch is present on the left parietal region of the scalp 5 cm above the upper attachment of left ear. 3. A surgically sutured wound of 10 cm in length with 7 black thread stitches on the left parietal region and part of right parietal region of scalp 10 cm above the upper attachment of left ear and 8 cm below the injury No.1 slightly obliquely placed. Brown scab is present. 4. A surgically sutured wound of 9 cm in length with 6 black thread stitches is present on the left side of the forehead extending from the inner and of left eye brow above and upwards towards the right side of frontal region of scalp 7 cm below the injury No.3. Brown scab is present. 5. A scratch abrasion 1 ½ x ½ cm is present on the right cheek 2 2/1 below the middle of right lower eyelid. Reddish brown in colour. 6. A surgically sutured wound of 3 cm in length with 2 black thread stitches is present on the back of right forearm above the right wrist. On opening the suture, it is muscle deep. 7. An abrasion of 3 ½ x 1 cm is present on the dorsal aspect of right wrist. Reddish brown in colour. 8. A linear cut of 2 ½ cm x ½ cm is present on the inner aspect of right forearm 9 cm above the right wrist. Obliquely placed. Dried blood clots are present in the wound. 9. A surgically sutured wound of 4 cm in length with 3 black thread stitches is present on the palmer aspect of right hand extending above from the base of right ring finger. On opening the suture, it is bone deep and corresponding underlying bone is with clean cut edges and stained with blood. 10. A surgically sutured wound of 3 cm in length with 3 black thread stitches is present at the base of left thumb running around the base. On opening the suture, it is muscle deep. 11. A surgically sutured wound of 5 cm in length with 3 black thread stitches is present on the palmer aspect of left hand running upper wards and above from the base of the left index finger. Obliquely placed. On opening the suture, it is muscle deep. Internal Injuries: 12. A haematoma of 25 x 14 cms is present under the scalp o both frontal parietal and occipital regions. Red in colour. 13. A chop wound of 7 cm in length is present on the left side of occipital bone corresponding to injury No.1. The bone edges are clean cut and blood stained. 14. A curved chop wound of 8 cm in length is on both parietal bones with bevelling clean cut margins and the bevelling margins facing down wards and below towards the frontal region and curved cut bone chip is raised out of the surface. The edges are clean cut and stained with blood. The injury is corresponding to injury No.3. 15. A curved chop wound of 10 cm in length is present on the right side of the frontal bone with bevelling clean cut margins facing upwards towards the top of the skull. The edges are clean cut and stained with blood. The injury is corresponding to injury No.4. 16. Doral membrane is cut and brain is lacerated at the area as corresponding to injury Nos.13,14 and 15 with diffuse subdural and sub arachnoids haemorrhages. All the above injuries are ante mortem in nature. He opined that the cause of death is due to crania cerebral injury (head injury) as a result of hacking or chopping with curved sharp edged moderate to heavy weight cutting weapon. He issued Ex.P.9 post mortem certificate. 15. P.W.13 deposed that he worked as Casualty Medical Officer in the G.G.H., Kakinada. On 5.6.2003 at 9.50 a.m. he has given police intimation to Out Post Police, G.G.H., Kakinada, regarding admission of a female patient by name Adabala Sujatha and Ex.P.10 is the police intimation. He gave Ex.P.11 requisition to the Magistrate to record the dying declaration. By the time the Magistrate arrived, the patient became unconscious and she was not in a fit state of mind to give any statement. 16. P.W.14 deposed that in the month of June, 2003, he was the Duty Surgeon of 5th Ward, G.G.H., Kakinada and while undergoing treatment, the deceased died at 4.40 p.m. due to head injuries and Ex.P.13 is the police intimation regarding death of the deceased sent to Out Post Police, G.G.H., Kakinada. 17. P.W.15, H.C., Out Post Police Station, G.G.H., Kakinada, deposed that on 5.6.2003 under Ex.P.10, he went to record the statement of a female by name Adabala Sujatha and observed that she was having injuries on her head and left hand thumb and she was in a fit state to give statement. Then, he recorded her statement ad after the contents were read over and explained, she admitted them to be true and affixed her left thumb impression and Ex.P.14 is the statement of said Adabala Sujatha. The Casualty Doctor was present, when he recorded her statement. In cross examination, he stated that the deceased did not state that her parents gave Ac.0.30 cents of land and that the accused was harassing her to sell the same and she did not state about the presence of P.Ws.4 and 5 at the time of incident and she also did not state about her husband receiving any injuries. P.Ws.16 and 17 are the Investigating Officers. 18. The trial Court, after appreciating the oral and documentary evidence available on record, found the accused not guilty of the offences and, accordingly, acquitted him of the charges leveled against him. Challenging the same, the State preferred this appeal. 19. The grievance of the State is that the learned trial Judge failed to appreciate the evidence of P.Ws.1, 2 and 6 and also the complaint which is in nature of dying declaration by the deceased. The trial Court also failed to consider the evidence of P.Ws.4 and 5 who deposed about the presence of the accused at the scene of offence. 20. We have heard the learned Addl. Public Prosecutor for the State and the learned counsel for the respondent-accused and perused the entire record. 21. According to the prosecution, the learned trial Judge has not considered the evidence in an elaborate manner and also has not decided the issue that the accused is the person who caused injury on the deceased. But at the same time, the learned Sessions Judge, after accepting the case of the prosecution in toto that the accused is the person who committed the crime, acquitted him of the offences, mainly relying on the decisions in Laxman Singh Vs. Poonam Singh and others[1], James Margin Vs. State of Kerala[2], and Raghavan Achari Vs. State of Kerala[3], holding that the facts and circumstances do not disclose that the accused exceeded his right of private defence. 22. Since the learned Sessions Judge has accepted the case of the prosecution and considered the evidence deposed by the witnesses in its favour, there is no need to discuss further the evidence adduced by the prosecution witnesses. 23. In the 3rd cited case (supra), their Lordships dealt with Exception-1 to Section 300 of IPC as to whether the culpable homicide is not murder and further relied on Section 100 of IPC which speaks about the right of private defence of the body extends to causing death. 24. Section 100 of IPC defines as to when the right of private defence of the body extends to causing death. The 1st explanation is, such an assault, as may reasonably cause the apprehension that death will otherwise be the consequence of such assault. The 2nd explanation is, such