IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY EIGHTH DAY OF JULY, TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.384 of 2007 Between: Budda Ramachandraiah @ Chandraiah. … Appellant/accused No.1 And State of A.P., Represented by Public Prosecutor, High Court of A.P., Hyderabad … Respondent This Court made the following: THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.384 of 2007 JUDGMENT: (per the Hon’ble Sri Justice A.Gopal Reddy) Appellant/A1, who faced the trial along with his mother- A2, in Sessions Case No.225 of 2006 on the file of the Principal Sessions Judge, Medak at Sangareddy, was found guilty for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “the Act”) and was sentenced to suffer imprisonment for life and also to pay fine of Rs.500/-, in default to undergo simple imprisonment for six months, while A2 was acquitted of the charge framed against her, filed this appeal challenging the conviction and sentence recorded against him. 2. The substance of the charge framed against the accused is that on the intervening night of 27/28.01.2005 at about 3.00 A.M. at Thegarpalli village, Kondapur Mandal, the accused caused the death of one Budda Laxmaiah by killing him. 3. The case of the prosecution in brief is as follows: - A1 is the son and A2 is the wife of the deceased. P.W.2 is the daughter of the deceased and A2. P.W.4 is the mother of P.W.5 and mother-in-law of P.Ws.3 and 6, who are the neightbours. P.W.7 is the relative of the deceased. A1 and A2 were living together at their house in B.C.Colony, Thegarpally, whereas P.W.2 stayed at the farmhouse of Galla Bagirtha in the same village. One day prior to the incident i.e., on 27.01.2005 while P.W.6 was washing the utensils in the house of P.W.9 at the 40th day death function of one Khader Sab, A1 went to her and offered Rs.50/- to fulfill his sexual desire. In turn P.W.6 scolded him and the people present there admonished and thrashed him. Then P.W.6 went to the house of Byagari Srinu-P.W.7, who was a distant relative and informed the same to him. From there they went to her home and informed the incident to P.W.5-husband of P.W.6 and all of them went to the house of the accused and questioned him for his indecent act. To find out the truth, all of them went to the house of P.W.9, where the persons present there revealed the incident. While returning from the house of P.W.9, the deceased scolded A1 and beat him with chappals, by saying that he is defaming his family. Then P.W.7 separated them and sent them to their house. On 27.01.2005 at about 3.00 A.M., while the accused was beating his father with a stick and causing head injury, then P.W.2 who was staying in the house heard the cries. On hearing the cries, P.Ws.3, and 4 woke up and heard the galata from the house of the deceased Laxmaiah and they tried to stop the accused from beating. In the morning they found the deceased died. On the information received at 7.00 A.M. from P.W.10 about the death of the deceased, P.W.1, who was working as a Panchayat Secretary, went to the house of the deceased along with Neeradi Manaiah and found A1 and A2 present in the spot and both confessed that they killed the deceased and after enquiring with P.Ws.4 and 2, he scribed a complaint and sent the same to the police station through the village servant Manaiah under Ex.P1. On receipt of information, P.W.15, the Sub-Inspector of Police registered a case in crime No.8 of 2005 for the offence punishable under Section 302 IPC and issued F.I.R. under Ex.P8 and recorded the statement of P.W.1. P.W.16 the Circle Inspector of Police, who took up investigation, prepared a rough sketch and seized the blood stained clothes of the deceased i.e., M.Os.1 and 2, blood stained earth-M.O.7 and controlled earth-M.O.8 under Ex.P3, recorded the statements of P.Ws.2 to 10; conducted inquest panchanama under Ex.P2 over the dead body of the deceased in the presence of P.W.11 and another; sent the dead body to the Government Hospital, Sangareddy for post mortem examination. P.W.14 the Civil Assistant Surgeon conducted autopsy over the dead body of the deceased and issued Ex.P7 post mortem report opining that the cause of death was shock due to haemorrhage and injuries to the brain and left lung, which are vital organs. During the course of investigation, P.W.16 along with P.W.15 arrested A1 and A2 and at their instance recovered their clothes M.Os.9 to 11 under Ex.P6 in the presence of P.W.13 and sent the material objects to F.S.L. After receipt of the F.S.L. report and all the relevant reports and after completion of the investigation, he filed the charge sheet. 4. On committal the learned Sessions Judge, framed a charge under Section 302 IPC, and when the same was read over and explained to the accused in telugu, they pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution examined P.Ws.1 to 16 and marked Exs.P1 to P9, besides the case properties M.Os.1 to 11. 6. After the prosecution evidence is closed, the accused was examined under Section 313 Cr.P.C., for which they denied the incriminating evidence put to them. No oral evidence was adduced on behalf of the accused, but the admissible portions in the evidence of P.Ws.2 and 9 were marked as Exs.D1 to D3. 7. The learned Sessions Judge on appreciation of the oral and documentary evidence held that the testimony of P.Ws.2 to 4 who are eye witnesses are cogent and convincing; that the evidence of P.Ws.5 and 6 also supports the motive of the accused for killing the deceased; that there is no dispute about the homicidal nature of the death of the deceased; that the ocular evidence has been corroborated with the medical evidence; that the prosecution failed to prove the guilt of A2 for the offence with which she was charged; and accordingly convicted the appellant/A1 and sentenced him to undergo imprisonment as aforementioned. 8. The appellant was provided with legal aid by the Legal Services Authority in preferring the appeal. Sri G.Vijaya Saradhi, learned counsel for the appellant contends that P.Ws.2 to 4 are planted witnesses and the evidence of P.W.2 is falsified with the evidence of P.Ws.5 to 7. The entire investigation is over by 2 P.M. and all the statements recorded have not been sent along with the F.I.R., which reached the Magistrate at 8.00 P.M. Admittedly, P.W.2, who is the daughter of the deceased and the sister of the appellant, is residing in some other house, which is 200 yards away from the incident and hence, she cannot be an eyewitness to the incident. When P.Ws.2 and 4 stated that they are not present at the time of inquest, the investigating officer-P.W.16 examining them at the time of inquest does not arise. There is a variance in the evidence of P.Ws.3 and 4 about the incident occurred. Therefore, P.Ws.2 to 4 cannot be the eyewitnesses to the incident and it is unsafe to convict the accused on the basis of the evidence available on record. 9. On the other hand, learned Additional Public Prosecutor sustained the conviction, contending that P.W.2, who is the daughter of the deceased and sister of the appellant, cannot speak against him and allow the real culprit to escape and P.Ws.3 and 4, who are the neighbours, are natural eyewitnesses. When the prosecution successfully established the motive by examining P.Ws.5 to 7, the minor variations in the evidence of P.Ws.3 and 4, will not go to the route of the prosecution case to discard the entire evidence of the prosecution about the incident. Therefore, the conviction and sentence recorded by the trial Court, does not call for any interference. 10. In the light of the above submissions, the only point that arises for consideration is Whether the prosecution is able to prove the guilt of the accused beyond all reasonable doubt? P O I N T : - 11. P.W.1, who set the criminal law into motion by filing Ex.P1, in his evidence deposed that at about 7.00 A.M., while he was in his house, one Suryapet Ananth Rao-P.W.10, informed him about the death of Budda Laxmaiah, who was beaten by his son A1 and was killed in front of his house. Then he came along with Neeradi Manaiah to the spot where the dead body of the deceased was found. At that time A1 and A2 were present at the spot and both confessed that they killed Laxmaiah. Then he enquired with P.Ws.3 and 4, whose houses were situated by the side of the house of the deceased. P.W.4 informed him that the deceased requested her to save him from the hands of A1 and A2 as they were attacking and beating and that at the request of the deceased she went to A1 and accosted him why he is beating his father Laxmaiah. Then A1 told her that in the previous night the deceased beat him and unbearable to the said beatings, he beat his father. He also enquired with P.W.5, the son of P.W.4. Then P.W.5 informed that when the deceased accosted A1 why he has asked P.W.6 to have intercourse with him and offered her to pay Rs.50/-, the deceased scolded A1 and also beat him, due to which A1 bore grudge and killed him. He further deposed that he has seen one boulder lying by the side of the dead body of the deceased. In the cross-examination he stated that after sending Ex.P1 complaint to the police station he intimated about the incident to the village secretary P.W.11. By the time police came to their village, P.W.11 was present in the village and his house is situated about two furlongs from the house of the deceased. By the time he reached the spot there were about 100 people of their village gathered at that place and both the accused were present there. The dead body of the deceased was not lying in front of his house and it was lying in front of a plot situated by the side of his house. The police arrested both A1 and A2 and took them into custody after their arrival to the village and after enquiring with him and others. Both the accused were present when the police conducted investigation in this case at the time of examining the witnesses and seizure of M.Os.1 and 2. P.W.2 is not residing with her parents. 12. P.W.2, who is the daughter of the deceased and A2, deposed that she is working as a labourer and her parents used to stay in B.C.Colony. When she was sleeping in the house on the date of the incident, in the mid night she heard the cries of her father saying “Nenu chachi pothunna nanu kapadandi.” Immediately, she woke up and witnessed A1 beating his father with a stick and then she asked him why he is unnecessarily beating his father and to leave him. Then A1 by saying that he would kill his father as he is his father, beat his father. On her raising hues and cries people gathered. A1 was also threatening to kill those who goes and rescue his father and got a boulder and hit on the head of the deceased. M.Os.1 and 2 are the stone and stick. She further deposed that Chinna Maruthamma alone was present and witnessed the incident. A2 was present there and she instigated A1 to kill his father. A2 also instigated A1 to kill him when she intervened to rescue his father. A1 killed the deceased infront of his house. The reason for the said incident is when P.W.6 was cleaning the utensils, A1 consumed liquor heavily and in intoxication condition he offered Rs.50/- to have intercourse with her. She was present there at that time. Her father was also present and heard about A1 saying with P.W.6. Her father beat A1 by saying why he talked like that and it is his disgrace to have given birth to such a bad fellow. P.Ws.5 and 6 then told his father that they would talk about the incident in the morning. The incident of offering money by A1 and the above incident occurred at 3.00 P.M. on the previous day of occurrence. A1 and A2 after the incident ran away from the place. In the cross-examination she admitted that since four years she was living separately from her parents. None of the villagers came to the house of her father on hearing the cries as it was dark night and there were no street lights and one cannot say what is going on there. She also stated to the police that the deceased raised hues and cries saying “nenu chachi pothunnananu nannu kapadandi” and she also disclosed about the previous incident of A1 offering Rs.50/- to the eldest daughter-in-law of Rathamma and the deceased scolding A1. P.W.3, who is the neighbour of the deceased, deposed that when she woke up at the night to facilitate her son, who was aged five years, to attend calls of nature she heard some galata from the house of the deceased. She saw A1 beating his father with a stick and when the deceased fell down A1 continued to beat him. A2 was sitting by the side of the deceased. Then she woke up her mother-in-law-P.W.4 and both of them stood in the courtyard of their house and P.W.4 scolded A1 not to beat his father. On hearing her voice deceased got up and ran to P.W.4 and fell down on the feet of P.W.4 with bleeding injuries and requested her to save him from the clutches of A1. Then both A1 and A2 came there and A1 thrown the stick there and lifted him and by dragging his father took him towards their house. Then A2 took the stick and again handed over it to A1. Again A1 started beating his father with the stick. Thereafter inspite of repeated advices not to beat his father A1 beat him severally and they went inside their house. In the morning they found the deceased lying there dead. P.W.4, mother- in-law also corroborated the evidence of P.W.3 stating that the deceased ran towards them by saying that he is being killed by his son and requested to save him from the beatings of his son A1. Then he told A1 to take the deceased from infront of the house, then due to fear herself and her daughter-in-law-P.W.3 went inside the house. On the next day morning they came to know that the deceased died. P.W.5, husband of P.W.6-Maruthamma, stated that his wife was employed in the house of Khader Sab on the 40th day death ceremony. A1 went to take food. After having food A1 offered Rs.50/- to his wife to have intercourse. A1 was in drunken condition when he offered Rs.50/- to his wife to have intercourse. She informed the same to himself and P.W.7 and all of them went to the house of Laxmaiah to find out about the offering of Rs.50/-. After going to the house of Laxmaiah, he talked with A1 about the said illegal act. Then A1 denied the offer made by him. Then himself, his wife, P.W.7, deceased, A1 and A2 went to the house of Khader Sab and made enquiries with the persons present there and they informed that A1 was in drunken condition and offered Rs.50/- to his wife to have intercourse. At the house of Khader Sab the people asked them to go to their respective houses and can settle the matter next day morning. After reaching near the house of Byagari Srinu, Laxmaiah scolded his son by saying that why he does always such bad things and beat A1 with a chappal. Immediately thereafter A1 lifted his father and thrown him on the ground. Then he told A1 why he has thrown his old aged father and by saying so he separated and asked them to go to their house. On the next day morning he learnt that A1 and A2 both killed the deceased. 13. P.W.6 deposed that while she was washing the utensils at the 40th day ceremony of Khader Sab, A1 came to her and offered Rs.50/- to have intercourse, then she scolded him and the Muslims present there thrashed him not to say so. On her informing the same to P.W.7 both went to her house and informed to P.W.5, her husband and all of them went to the house of A1, where the deceased and A1 were present and asked why A1 doing such bad things. To find out the truth all of them went to the house of Khader Sab and at the house of Khader Sab also the persons present there revealed the same. While returning from the house of Khader Sab, A1 and his father both beat each other. P.W.5 separated both of them. On the next day morning she came to know that A1 murdered the deceased. P.W.7 also corroborated the evidence of P.W.6 disclosing about the previous incident to her. P.W.8 deposed that himself and P.W.6 gone to the labour work in the house of Khader Sab and when both were washing the utensils, A1 came there and offered Rs.50/- to P.W.6 to satisfy his sexual lust. Thereafter the inmates of Khader Sab drove A1 from their house. P.W.9 also corroborated the evidence of P.Ws.6 and 8 about the accused offering Rs.50/- to P.W.6 to fulfill his sexual lust. P.W.10 who passed the information to P.W.1 that P.W.4 informed him that the deceased was murdered by A1 and A2. 16. P.W.11, the Village Secretary of Thegarpally village deposed about the seizure of M.Os.1 to 8 by the police and conducting inquest over the dead body of the deceased by the police. 17. P.W.14, the Doctor who conducted the post mortem examination found the following injuries: 1. Fracture middle of Right and left humerus. 2. Fracture both bones of right and left legs at upper 1/3rd with contusion 2 X 5 cms. Horizontally. 3. Laceration 2 in numbers each 5 X ½ X ½ cms. On mid parietal eminence. 4. Fracture skull at the region of injury number 3. 5. Fracture 7th and 8th ribs anterolaterally on the left chest. He issued Ex.P7-Post mortem report opining that all the said injuries might have been caused with blunt object and are anti mortem in nature and the proximate time of the death is 12 to 18 hours prior to the post mortem examination and the cause of death is shock due to haemorrhage and injury to the brain and left lung. 18. P.W.15, the Sub-Inspector of Police, deposed that on receiving Ex.P1-complaint from P.W.1, he registered a case in crime No.8 of 2005 under Section 302 IPC and issued Ex.P8-F.I.R. P.W.16, the Circle Inspector of Police, who took up investigation deposed about seizure of material objects; preparation of rough sketch; recording the statements of P.Ws.2 to 10; conducting inquest over the dead body of the deceased; arrest of the accused on 31.01.2005 and recovery of M.Os.9 to 11 on the confessional statement made by the accused. 19. From the above evidence, it is clear that no suggestion was made to P.W.2 that she was not present in the house on the date of incident. Whereas in the cross-examination P.W.2 stated that her father’s house is situated near to sugar factory in Thegarpally village and the farmhouse of Bagirath is situated nearly at a distance of one furlong from her father’s house. If any galata takes place near the house of her father, it will be audible to the villagers. After hearing the cries, P.Ws.3 to 5 and herself went to the house of the deceased. Further, P.Ws.3 and 4, who are the neighbours, deposed in one voice that A1 beat the deceased with the stick and even after he fell down he continued to beat him and after seeing P.W.4, the deceased got up and ran towards her and requested her to save him from the clutches of A1. Then A1 and A2 came there and A1 thrown the stick there and lifted his father and dragged him towards his house. There is a minor variance in the evidence of P.Ws.3 and 4, where P.W.4 stated that due to fear herself and her daughter-in-law P.W.3 went inside the house, which is not a material contradiction to the averments made by them about their witnessing the beating of the deceased by A1. Their evidence is also corroborated by the evidence of P.W.14, the Doctor and the post mortem report-Ex.P7 about the injuries received by the deceased. P.Ws.5 to 9 also deposed about the incident which has happened at about 3.00 P.M. on the previous day at Khader Sab’s house, where A1 offered to give Rs.50/- to P.W.6 and asked her to satisfy his sexual desire and that A1 was scolded by the people at the Khader Sab’s house and when the said matter was informed to the deceased by P.Ws.5, 6 and 7, the deceased slapped the accused and when both of them beat each other, P.W.5 separated them and asked them to go to their hose and on the next day morning they came to know that the accused killed the deceased. 20. The evidence of P.Ws.2 to 6, who were examined by the Judicial Magistrate of First Class, Special Mobile Court, Sangareddy under Section 164 Cr.P.C., was also consistent with their earlier versions recorded by the police and they stated the same facts when they were examined in the Court. Therefore, the prosecution successfully demonstrated that the deceased died due to the beating of A1 with the stick and due to the incident that occurred on the previous day, he developed grudge against the deceased for his slapping in the presence of P.Ws.5 and 7 and accordingly beat the deceased with the stick in the night and set his death. Therefore, the conviction and sentence recorded against the appellant by the trial Court for the offence punishable under Section 302 IPC, do not call for any interference. We accordingly confirm the conviction and sentence recorded by the trial Court against the appellant/A1. 21. In the result, the Criminal Appeal is dismissed confirming the judgment of the trial Court in all respects. _____________________ A. GOPAL REDDY. J ______________ K.C.BHANU.J 28th July, 2010 Lmv.