THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL No. 929 OF 2007 DATED: 30-12-2010 Between: Nadakudi Vara Prasad …Appellant-A1 And State of A.P. rep. by Public Prosecutor, High Court of A.P. Hyderabad. …Respondent-Complainant THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL No. 929 OF 2007 JUDGMENT: (per THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO) This Criminal Appeal is filed by appellant-A1 in Sessions Case No.82 of 2006 on the file of the Special Sessions Judge- cum-X Additional District and Sessions Judge, Krishna at Machilipatnam, whereunder the appellant has been convicted for the offence punishable under Section 302 of I.P.C. for causing the death of his sister, Gandhi Vijayalakshmi (deceased No.1) and sentenced to undergo imprisonment for life and also to pay a fine of Rs.100/-, and also convicted for the offence punishable under Section 326 of I.P.C. for causing grievous injuries to his father, Nadakudi Adesesha Rao (deceased No.2) and sentenced to undergo rigorous imprisonment for five years. 2. The case of the prosecution is that P.W.1 is the eldest son, A2 is the second son and deceased No.1 is the daughter of deceased No.2. As she was discarded by her husband, she was staying with her father and mother. Deceased No.2 was having some landed properties and purchased some other properties and he purchased Ac.2.30 cents of land in the name of his sons and Ac.1.30 cents of land in the name of his wife and Ac.1.00 of land in the name of his eldest daughter-Anthuma Devi. There was no property in the name of deceased No.1. A1 started living at Vijayawada along with his two sons and his wife A2 and he suffered some loss. Deceased No.2, due to troubles sold away Ac.1.30 cents of land, which is in the name of his wife to P.W.7 for a consideration of Rs.6,50,000/- and took an advance of Rs.2,00,000/-. Coming to know about it, A1 came to A.Konduru and constructed a thatched hut near the house of deceased No.2 and demanded share from the sale proceeds, for which deceased No.2 refused. A1 also quarrelling with deceased No.2 frequently. Deceased No.2 gave a report against him and the police warned A1. There was also a panchayat with regard to above disputes. On 15-12-2004, wife of deceased No.2 went to the house of her eldest daughter and A1 thought that she has gone for registration of the land. Therefore, A1 along with his wife and children hatched up a plan to do away with the life of deceased No.2 and on 06-12- 2004 at about 6.00 A.M., when deceased No.2 came out of the house, A1, A2 and their sons picked up a quarrel with him and A1 hacked deceased No.2 with Pota Kathi and deceased No.2 fell down. In the mean time, A2 caught hold of the tuft of hair of deceased No.1 and A1 went to her and with the same weapon hacked deceased No.1 on her neck and she died instantaneously. P.W.1 raised cries and brought an Ambulance and shifted deceased No.2 to Government Hospital, Tiruvuru. Deceased No.2 was unconscious. The statement of P.W.1 was recorded by the police and it was registered as a case in Cr.No.93 of 2004 under Sections 302 and 307 r/w 34 IPC and copies of F.I.Rs were sent to all the concerned. During the course of investigation, inquest was held over the dead body of deceased No.1 and panchanama of the scene of offence was conduced and dead body was sent for post- mortem examination. On 17-12-2004 A1 to A3 were arrested and the confessional statement of A1 was recorded and the weapon of offence was seized. The statement of witnesses was also recorded. The investigation discloses that the name of Srinivasa Rao, who is the son of A1 and A2 mentioned in the F.I.R. is not correct, that he was not involved in the crime, that he was at Calcutta and his name was deleted. Deceased No.2 was discharged from Sowmya Apollo Hospital on 12-02-2005 and thereafter, he died on 13-04-2005. The inquest was held over the dead body of deceased No.2 and the dead body was sent for post-mortem examination. It was opined that the death was due to cardio respiratory arrest, which is due to head injury. Therefore, charge sheet was filed against A1 to A3 for the offence punishable under Section 302 r/w 34 IPC. 3. The case was taken on file as PRC No. 25 of 2005 by the Judicial Magistrate of I Class, Tiruvuru. The learned Magistrate committed the case to the Court of Sessions, Krishna. The Sessions Court made over the case to the X Additional District and Sessions Judge, Krishna at Machilipatnam for disposal in accordance with law. 4. After appearance of A1 and A2, charges under Sections 302 IPC against A1 and A2, 302 IPC against A1, 302 IPC against A2, 302 r/w 34 IPC against A2 and 326 and 307 IPC against A1 and A2 were framed, read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried. 5. On behalf of the prosecution, P.Ws. 1 to 20 were examined and Exs.P1 to P25 and M.Os. 1 to 8 were marked. The contradictory statement of P.W.4 was marked as Ex.D1. 6. After the evidence of the prosecution is over, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating material appearing against them in the evidence of prosecution witnesses. They denied the same. No oral evidence was adduced. 7. After considering the evidence on record, the learned Sessions Judge found A2 not guilty of the offences with which she was charged and accordingly, acquitted her. He found A1 guilty of the offence punishable under Section 302 IPC for causing the death of deceased No.1 and guilty of the offence punishable under Section 326 IPC for causing multiple grievous injuries to deceased No.2 and accordingly, convicted and sentenced him as above. Aggrieved thereby, the present appeal has been preferred. 8. Head the arguments of Smt.A.Gayatri Reddy, learned counsel for the appellant-A1 and also the learned Public Prosecutor. 9. The points that arise for consideration are: 1) whether the prosecution has proved that the appellant-A1 has committed murder of deceased No.1, 2) whether the prosecution has proved that the appellant-A1 has committed grievous injuries to deceased No.2 and 3) whether the conviction and sentence imposed by the learned Sessions Judge are legal and sustainable. 10. POINTS: The evidence of P.W.1, who is the son of deceased No.2 and who is only an eye witness to the incident is to the effect that there were disputes between deceased No.2 and A1 with regard to the share of the property given to the mother when it was purport to be sold and earlier to the incident, A1 demanded his father to give the property and the money, for which he refused. Therefore, they have developed a grouse on the deceased. On 16-12-2004 at about 6.00 A.M., A1 to A3 (since A3 deleted from the charge sheet) came and quarrelled with his father and then immediately, A1 picked up a Pota Kathi and hacked his father on his neck, chin and on his right hand and due to that blows, deceased No.2 fallen down on the ground. With regard to the other attack, it is useful to extract particular statement, which reads that “in the meantime, A2 caught hold of the tuft of my sister (D1) and hacked her with the same Potakathi on her neck and my sister (D1) died instantaneously on the spot in the pool of blood.” Thereafter, his father was taken to Government Hospital, Tiruvuru and his statement Ex.P1 was recorded by the police. In the cross- examination, the previous disputes with regard to the property and the complaint given to the police are elicited. He also identified M.O.2 as the weapon of offence used by the accused. In the cross-examination it was also further elicited that his father was a life convict in the murder case of one A.Dakshina Murthy and he was released on remission after completion of seven years. According to him, his father did not sell the properties given to their mother. According to him, A1 is still having Ac.1.00 of land excluding the land sold by him to an extent of Ac.1.30 cents. He further stated that he does not know whether the deceased father has received any sale consideration from the purchasers, but he came to know that he received only Rs.2,00,000/- from the purchasers. He further stated that he did not save his father from A1 and after A1 hacked his father, he ran towards his sister and he did not come to the rescue of his sister from the hands of A1. He denied the suggestion that A1 was falsely implicated in this case. 11. P.Ws. 2 and 3 did not support the case of the prosecution and they were declared hostile by the prosecution. 12. P.W.4 is no other than the mother of A1 and P.W.1. She spoke about the claim of A1 for money from the properties belonging to her, which was sold and her absence on the date of incident and going to her daughter’s house at Eluvolu and returning after coming to know about the incident. 13. P.W.5 did not speak anything about the attack on the deceased persons and claims to have gone to tuition class and returned after the incident. 14. The evidence of P.W.6 is that on 01-12-2004 a G.D. entry was made about the disputes between A1 and deceased No.2 and Sub Inspector of Police warned them not to quarrel. 15. P.W.7 stated that he purchased Ac.1.30 cents of land from P.W.4 for a consideration of Rs.6,50,000/- and paid Rs.2,00,000/- towards part consideration and also paid Rs.1,00,000/- to P.W.1 towards balance of sale consideration. There is no cross-examination of this witness. 16. The evidence of P.W.8 is that earlier to the incident, there was a quarrel between A1 and his father and he warned them not to quarrel. 17. P.W.9 spoke about taking of photographs of the scene of offence. 18. The evidence of P.W.10 is about mediation for settlement of the disputes between A1 and deceased No.2 and also his knowledge about the sale of the property of P.W.4 and receiving of money. He advised deceased No.2 to approach a civil Court. 19. The evidence of P.W.11 is about his presence at the time of observation of the scene and also the inquest over the dead body of deceased No1. He also claims that in his presence on 17-12-2004, A1 to A3 were interrogated by the police and A1 to A3 gave voluntary confessional statement and the police seized M.O.2. 20. P.W.12 stated that he was present at the time of inquest over the dead body of deceased No.2. 21. The evidence of P.W.13 is that he conducted post- mortem examination over the dead body of Adisesharao (deceased No.2) and found the following injuries: 1.Bed sore is present on the left shoulder- 3 x 3 cm 2.Hed sore is present in between the two buttocks- 10 cm x 10 cm 3.Small bed sore on the right shoulders 1 cm x 1 cm 4.Bed sore is present on the left gluteal region 10 cm x 10 cm 5.Bed sore on the right heel 5 cm x 5 cm 6.Bed sore on the right gluteal region 10 cm x 10 cm 7.Healed scar on the left side f the face below the mandible horizontal in direction 10 cm in length. 8.Healed scar on the left temporal occipital region of the head posterior to the left ear 3 cm x 2cm x 1 cm vertical in direction. 9.Haled scar on the left shoulder 2 cm in length 10.Healed skull fracture (temporal occipital region of the left side of the head is present. He gave Ex.P12 post-mortem certificate. He did not give any specific cause for the death of the individual. 22. The evidence of P.W.15 is that he conducted post- mortem examination over the dead body of P.Vijayalakshmi (deceased No.1) and found the following injuries: 1.Abrasins irregular on right side of lower part of chest and left hypochrondium of abdominal wall measuring 7 cm length and 3 to 4 cm width. 2.Incised wound on right side of anterior surface of neck 6 x 6cm x 4 cm depth involved pars are skin, subcutaneous tissue and right cerotic anterior and vein cut transversely which is total with neck muscle sternomactied latel parly cut and medial head completely cut on right side of neck one inch above the medical end of right clavicle bone. He issued Ex.P18 post-mortem certificate opining that the injuries are ante-mortem and they are sufficient to cause the death. 23. The evidence of P.Ws. 14, 18 and 19 is about the investigation done by them in this case. 24. The evidence of P.W.16 is that A3-Srinivasa Rao was not present on the date of alleged incident as he was at Calcutta. 25. The evidence of P.W.17 is about taking of photographs of deceased No.2. 26. The learned counsel for the appellant contends that there is solitary statement of P.W.1 and that he is related to the accused and the deceased, that he is interested witness and there are improvements in his version and the lower Court having given benefit of doubt on the same statement of P.W.1 about the culpability of A2 and the Investigating Officer having deleted the name of A3-Srinivasa Rao from the crime, the Court should not have relied upon the uncorroborated testimony of P.W.1. Furthermore, the evidence of P.W.1 is inconsistent in all aspects and particularly with regard to the attack on deceased No.1 Vijayalakshmi. Once a benefit of doubt was extended for the attack on deceased No.2 by disbelieving the evidence of the prosecution, the accused should not have been convicted for the cause of the death of deceased No.1. 27. On the other hand, learned Public Prosecutor contends that though P.W.1 is related, but he is not interested in implicating the accused and suppressing the truth to eliminate the real culprit and the lower Court has rightly accepted his evidence and therefore, there is no need to interfere with the finding of the lower Court. 28. As rightly contended by the learned counsel for the appellant the disputes between the accused and deceased No.2 relate to financial liability. Furthermore, P.W.1 is one of the sons and he is also interested in some of the properties and his father was living with him on the date of incident. As can be seen from the evidence of P.W.7, P.W.1 has got sum of Rs.1,00,000/- from the purchaser P.W.7. Therefore, P.W.1 being in management of the affairs of the father and interested in the management further cannot be denied. Therefore, when his father sells the property given to his wife and when he prefers one of the children or some of the children excluding the accused persons, naturally there is a grievance against his father and demand by the accused for a rightful share or a portion of the money to be given to him though he may be having his own properties and that he might have sold some of the properties which have got partitioned. Therefore, from the circumstances and the cross-examination, it is quite clear that there are ill-feelings between deceased No.2 and A1 and they only relate to the derivation of the money by sale of properties. Added to that, earlier also there was a quarrel and a complaint was given to the police and a mediation was held. Therefore, on the date of incident, A1 coming to the house of deceased and witnessed that his mother P.W.4 has gone for registration of the land cannot be ruled out. Furthermore, P.W.1 is a natural witness to be present at the house when the incident has taken place. Merely because there are some differences in the family members, the question is whether a part of the statement given by P.W.1 cannot be accepted and whether the other part of the statement can be looked into. 29. As rightly contended by the learned counsel for the appellant, deceased No.2 survived for nearly five months after the incident because the incident has happened on 15-12-2004 and he died on 13-04-2005. He was said to have been discharged from the hospital within two months. During this period, no effort was made by the Investigating Officer to record the statement of deceased No.2 and he is the best person who could have spoken more about the offence rather than P.W.1. Therefore, the laches on the part of the prosecution in not recording the statement of the deceased No.2 who survived for a long time is a circumstance to some extent favourable to the accused so far as the totality of the incident is concerned. 30. So far as attack on deceased No.1 is concerned, it is the specific case of the prosecution that A2 and his son Srinivasa Rao caught hold of deceased No.1 and A1 is said to have hacked her. This version is given in Ex.P1. But contrary to that, specific allegation in Ex.P1 statement of P.W.1 extracted above clearly goes to show that it was A2 and her son who caught hold of deceased No.1 and hacked her. The evidence of P.W.1 in the Court does not attribute that A1 is the assailant of deceased No.1 and caused her death. In fact from the beginning an effort was made to attribute overt-acts to A2 and in fact a specific charge was framed against A2 being responsible for the murder of deceased No1. When the evidence of P.W.1 before the Court does not show with precision attributing an overt-act against A1 for attack on deceased No1, the Court cannot presume or take into consideration other developments, which he was visualizing during the cross-examination. In fact the Public Prosecutor also did not elicit anything in re-examination as to identifying the actual person who has attacked deceased No.1. Such an ambiguous statement was given by him in the chief-examination. As rightly contended by the learned counsel for the appellant when there is an admission by P.W.1 to show that A2 and A3 are also involved in the crime and when such serious contradictory statement was given destroying the prosecution case, the evidence of P.W.1 about the attack on deceased No.1 by A1 cannot be completely relied upon without there being any corroboration. Evidently except the evidence of P.W.1, there is no corroboration to support his evidence on the attack on deceased No.1 or deceased No.2. Therefore, for the above reasons, we find that the appellant-A1 is entitled for reasonable benefit doubt for causing the death of deceased No.1 and his complicity in causing the death cannot be said to have been established. The reasons for disbelieving the evidence of P.W.1 about the involvement of A2 and A3 shall also be extended as benefit of doubt to the appellant-A1 so far as deceased No.1 is concerned. Hence, the appellant-A1 is found not guilty for the offence punishable under Section 302 IPC for causing the death of Vijaya Lakshmi (deceased No.1). Therefore, we find that the conviction and sentence imposed against the appellant-A1 for the offence punishable under Section 302 I.P.C. are not sustainable and accordingly it is liable to be set aside. 31. So far as attack on deceased No.2 is concerned, the lower Court has found that the deceased No.2 received multiple grievous injuries and there is no proof to cause the death and the lower Court rightly convicted the appellant-A1 for the offence punishable under Section 326 IPC. Though part of evidence of P.W.1 may not be reliable, at the same time so far as the attack on deceased No.1 is concerned, his statement lacks any credibility. Therefore, we do not find any reason to interfere with the conviction recorded against the appellant-A1 for the offence punishable under Section 326 IPC and sentence thereof for causing injuries to deceased No 2. 32. In the result, the conviction and sentence recorded by the X Additional District & Sessions Judge, Krishna at Machilipatnam, vide judgment dated 21.06.2007 in Sessions Case No.82 of 2006, against the appellant/A.1 of the offence punishable under Section 302 I.P.C. are set aside, while confirming the conviction and sentence recorded against the appellant/A.1 of the offence punishable under Section 326 I.P.C. Period of remand underwent by the appellant/A.1 during the course of investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. 33. The Criminal Appeal is, accordingly, partly allowed to the extent indicated above. _______________ K.C.BHANU, J ____________________________ N.R.L.NAGESWARA RAO, J DATED:30-12-2010 Hsd