THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE G.KRISHNA MOHAN REDDY CRIMINAL APPEAL No.1847 of 2007 JUDGMENT: (per the Hon’ble Sri Justice V. Eswaraiah) This Criminal Appeal is directed against judgment dated 10- 08-2007 passed in S.C.No.36 of 2007 on the file of the I Additional Sessions Judge, Srikakulam, whereunder and whereby the appellant the sole accused was found guilty of the offence punishable under Section 302 IPC and convicted and sentenced to undergo life imprisonment and also directed to pay a fine of Rs.1,000/- and in default, to undergo simple imprisonment for a period of one month. For the sake of convenience, the parties herein are referred to as they are arrayed before the Sessions Court. The brief facts that are necessary for the disposal of the Criminal Appeal may be stated as follows: The accused and deceased were husband and wife. The marriage between the accused and the deceased had taken place 20 years back. They were blessed with three children. Thereafter, the accused suspected the fidelity of the deceased and used to quarrel with her and she used to retort him accordingly. It is alleged that on 16-9-2006 both the accused and the deceased quarreled with each other and then, PW4 and elders advised them not to quarrel. Next day i.e., on 17-9-2006 at about 4-30 A.M. PW1, the paternal father of the deceased heard the cries of the deceased and hence, he went to the house of the accused and found the deceased Punnamma in a pool of blood and also found the accused there armed with an axe- MO-1. On hearing the cries, PW.s 3 and 4 and others also gathered near the house of accused and they also found the accused near the deceased. As the accused threatened, nobody went near the deceased. Later, PW1 went to Peddamadi Village where the children of deceased i.e. PW2 and her sister by name Vanitha were studying in a Tribal Welfare School and informed them about the incident and brought them to the village. By that time also, the accused was found near the deceased. Then also PW.1 and the children of the deceased did not go near to the deceased. Later, PW1 went to the police station at Meliaputti and gave a report to PW9-the SI of Police at about 3 P.M. Ex.P1 is the report. PW9-the S.I. of police registered the case in Cr.No.53/2006 and issued Ex.P9-F.I.R. Thereafter, PW10-C.I. of police Pathapatnam, took up the investigation of the case, visited the scene of offence and prepared observation report-Ex.P4 there. He seized blood stained control earth and other objects marked as Mos.2 to 6 and got photographed the scene of offence through PW6. Ex.P2 are the photographs. He also prepared rough sketch of the scene of offence as in Ex.P.10. On 18-9-2006 PW 10 held inquest over the dead body of the deceased at Government Hospital, Pathapatnam. Ex.P5 is the inquest report. He sent the dead body for post mortem examination. PW7, Medical Officer, Pathapatnam, conducted autopsy and issued post mortem certificate under Ex.P3. He opined that the death was caused to her due to cardio respiratory failure. On 18-09-2006, the accused surrendered before him and then he seized his blood stained lungi and he made confession in the presence of mediators, which lead to the recovery of axe-MO-1 under a cover of mediators report in respect of all of which over Exs.P-6 to P-8 mediators’ report were prepared respectively. Further, he sent the material objects for chemical examination and report. After the receipt of Post mortem certificate-Ex.P-3 and Regional Forensic Science Laboratory report-Ex.P13, he filed the charge sheet. On the appearance of the accused, he was examined under Sec.239 Cr.P.C. and charge under Sec.302 IPC was framed, read over and explained to him in Telugu, for which, he pleaded not guilty and claimed to be tried. To prove its case, the prosecution examined PWs.1 to 10 and marked Exs.P1 to P13 and Mos.1 to 8. On behalf of the accused, no oral or documentary evidence was adduced. After closure of prosecution evidence, the accused was examined under Sec.313 Cr.P.C. and he denied the prosecution evidence. PW.1, who is the brother of the deceased’s father, gave Ex.P-1 report to the police. He deposed as per the prosecution version claiming to be neighbour of the accused. He specifically stated as follows:- The accused used to suspect the character of the deceased and for which they used to quarrel with each other frequently. On 17- 9-2006 at about 4.30 a.m. he heard cries from the house of the accused, then he went to the house of the accused and found the deceased Punnamma in a pool of blood in the room and the accused was armed with an axe, which was blood stained, and he could not go near the deceased because the accused threatened that he would also hack him. On raising cries, PW.3, PW.4 and his wife Chandramma and other villagers gathered. One Raghavayya also came to the spot. The others also could not dare to go near the deceased due to the fear of the accused. Immediately, he went to Peddamadi village and brought Bharathi and Vanitha to the village. In the evening at about 3.00p.m., he reached Meliaputti police station, which is at far of distance and presented report-Ex.P1. On the same day, Police came to the village and apprehended the accused, who was in the house armed with the Axe at the dead body. They observed hack injuries over the back of the head of the deceased. He was examined by the police. He along with other members was present, when police held inquest over the dead body of the deceased. Mo.1 is the blood stained axe shown to him, which was used by the accused. In his cross-examination, he denied suggestion that his house was at far of distance from the house of the accused. He admitted that immediate neighbour to the house of accused was Lakshmi and another neighbour was Jaggiili. Further, the accused was disputing with the deceased suspecting her fidelity, on the ground that the deceased was having illicit intimacy with Jaggilli. Further there was also dispute on the night of 16-09-2006 and when he tried to pacify, the accused stated that he would settle the issue. He denied suggestion that after the dispute, PW.1 and others sent away the accused from the village and that he was not in the village. He also admitted that there was a dispute between the accused and Jaggilil three months prior to the incident. He further deposed that he and others compromised the issue since both happened to be relatives. It is stated by him that there was no conveyance to their village to go to the police station and have had to go by walk only. PW.2, who is the daughter of the accused, deposed that she was studying 10th class at the time of the incident at a different place along with her sister Vanitha whereas her parents used to reside at Thangini village and she used to visit her parents on Sundays, on public holidays and vacations. Further, she also deposed that there were disputes between her father and mother and her father used to suspect her mother. Further, she deposed that last year, in the month of September, while she was in the hostel at Peddamadi, PW.1 came and informed that her father hacked her mother with an axe and that her mother died and on information she and her sister went to Thangini village to see the dead body. PWs.3, 4 and 5, who are the neighbours of the accused, corroborated the evidence of PW.1 having consistently stated that on hearing cries, all of them went to the house of the accused and found the deceased in a pool of blood and after the incident, the accused fled away from the scene and on the next day he was apprehended by the Police at the Hospital. PWs.3, 4 and 5 are independent witnesses and they have no relation with the accused whereas they are only neighbours of the accused. PW.6 is the photographer, who took photographs of the dead body of the deceased. PW.9 is the S.I. of Police. He stated that on 17-09-2006 at 3.00 p.m. PW.1 came to the police station and lodged a complaint-Ex.P-1 and basing on the complaint, he registered the case in Cr.No.53 of 2006 under Section 302 IPC and issued express FIRs to all the concerned. Ex.P-9 is the original FIR sent to the Court. PW.10 is the Inspector of Police, who stated that he took up the investigation of the case after receiving copy of FIR on 17-09- 2006 at 4.30 p.m. from PW.9 and visited the scene of offence and secured the presence of PW.1 and conducted scene of offence panchanama in the presence of mediators. At the time of observation, he seized blood stained earth and control earth and Mos.2 and 3. He also obtained photographs of the scene of offence and prepared a rough sketch of the scene under Ex.P-10. Further, on 18-09-2006, he held inquest over the dead body of the deceased under Ex.P-5 in the presence of mediators. Later, the dead body was sent to the Government Hospital for post-mortem examination. PW.7 Doctor deposed that on a requisition sent by the Inspector of Police on 17-09-2006, he conducted post-mortem examination over the dead body of the deceased and found the following external injuries:- 1. An incised injury of 5 x 1 x 2 cms over the right front of parietal region of the skull. 2. A semicircular incised injury of 15 x 1 x 3 cms over the occipital region of the head with the fracture of occipital bones of both sides. 3. An incised injury of 3 x 3 x 1 cms on the left preauricular region. On internal examination, he confirmed the external injuries over the skull and fracture of semicircular shape of occipital region of 15 x 1 x 3 cms size and found that the brain tissue exposed in the occipital region. Subdural haematoma of 10 cm. with diameter present and the brain was pale. Ex.P-3 is the post-mortem certificate issued by him. He also deposed that the injuries of the deceased could be caused by means of an axe like MO-1 shown to him in the Court. In his cross-examination, he deposed that there were possibility of causing the two injuries by a weapon like MO-1. He denied specifically that there was no possibility of causing the injuries by means of weapon like MO-1. Further, when he was re-examined, he stated that the death was caused 30 to 40 hours prior to the post- mortem examination. PW.8-Panchayat Secretary corroborated the evidence of PW.10 with regard to the scene of offence, observation panchanama, inquest over the dead body and arrest of the accused in the hospital and seizure of MO-1-axe and also the seizure of blood stained lungi from the accused. It is also the evidence of PW.8 that at the scene of offence, police seized Mos.2 to 6. Learned counsel appearing for the accused vehemently contended that there is a discrepancy with regard to the arrest of the accused. According to PW.1, the accused was apprehended in his house on the date of incident, whereas according to PWs.8 and 10, the accused was arrested in the hospital and there was delay of about ten and half hours in giving the report to the police even though as per FIR, the distance between the scene of offence and the police station is about only 20 kilometres and though there was no bus facility, the same was not properly explained and hence it is fatal. Further, the injuries sustained by the deceased could not have been caused by means MO-1. It is emphatic that there is no enmity between the accused and PWs.1, 3 to 5. Further, PWs.3 to 5 happened to be neighbours of the accused. No suggestion was given to them as to why they had chosen to speak against the accused and in favour of the prosecution. It is also pertinent to note that PW.2 is no other than the own daughter of the accused deposed that her father and mother used to quarrel and her father used to suspect her mother. She also deposed in her cross-examination that there was quarrel between her father and Jaggilli and her father caused injuries to Jaggili with knife and the same was compromised subsequently. No daughter would speak against her own father, who is the accused. The evidence of PWs.1 and 3 to 5 is trustworthy as they stated that on hearing cries, they reached the scene of offence and found the deceased in a pool of blood and near the deceased, the accused was found with the axe-MO-1. They also narrated about the relationship of the accused and the deceased. Further, the ocular evidence is corroborated by the medical evidence. The medical evidence also speaks about exactly what injuries the deceased received. There is no dispute with regard to the scene of offence and also the seizure of various objects, as deposed by PWs.8 and 10. Therefore, there is no reason to disbelieve the evidence of PWs.1 and 3 to 5 and so also the evidence of PW.2 coupled with the evidence of PWs.8 and 10 and accordingly, the same is to be accepted as true and correct. With regards to arrest of the accused, according to PWs.8 and 10, the accused was arrested at the Government Hospital, Pathapatnam whereas according to PW.1 the accused was arrested in his house on the date of incident. As per the evidence of PWs 3 to 5, after the incident the accused fled away from the scene and on the next day he was apprehended by the Police at the Hospital. Therefore, it is clear that the accused was apprehended on the next day of the incident at the hospital. With regard to other contention of the learned counsel for the accused that there was delay in giving the report to the police, it is emphatic from the testimony of PW.1 that after the incident, he went to Peddamadi village by 8.30 a.m. and brought PW.2 and her sister Vanitha and PW.1 also deposed that as there was no conveyance he went to the police station, which according to FIR is 20 kilometers, on foot and gave report at 3.00 p.m. Nothing is elicited from his evidence to disprove his version that there was no bus conveyance to go to the police station and, therefore, he went to the police station by walk. Probably, some time would have taken place before taking necessary decision to give the report to the police, after gathering the kith and kin of the deceased and accused. Further, cover a distance of 20 kilometers, it would take at least 4 to 5 hours. The so called delay can be taken seriously, if there is any basis to prove that there was a possibility of making improvements over what exactly happened and also creating a false case against the accused. When there was no enmity between the accused and PWs.1 and 3 to 5, it cannot be said that they had chosen to foist a false case against the accused. The said delay need not be taken seriously when there was no enmity between the accused and the main prosecution witnesses. With regards to the plea of discrepancy in the medical evidence, PW.7, who is the best person to speak about the injuries, clearly denied that there was no possibility of causing the injuries by means of a weapon like MO-1. No evidence is placed before the Court to substantiate the claim of the defence that the injuries would not have been caused by means of single weapon like M.O.1-axe, in view of the nature of the injuries sustained by the deceased. Therefore, the contentions put-forth by the learned counsel for the accused are not tenable. In the above facts and circumstances of the case, we are of the opinion that the trial court, after examining the oral and documentary evidence, had rightly convicted and sentenced the accused for the offence under Section 302 IPC and the same needs no interference by this Court. Accordingly, the criminal appeal is dismissed. __________________ V.ESWARAIAH, J _______________________________ G.KRISHNA MOHAN REDDY, J Date : 22-09-2011 Prv