IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE NINETEENTH DAY OF JANUARY, TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE K.C. BHANU AND THE HONOURABLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 996 OF 2007 BETWEEN: Vanthala Pottu. …APPELLANT/ACCUSED AND The State of Andhra Pradesh …RESPONDENT/COMPLAINANT The Court made the following: THE HONOURABLE SRI JUSTICE K.C. BHANU AND THE HONOURABLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 996 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice N.R.L. Nageswara Rao) The sole accused in Sessions Case No. 80/2005 on the file of VII Additional Sessions Judge (Fast Track Court), Visakhapatnam, who was convicted for the offence punishable under Section 302 Indian Penal Code, 1860 (for short “IPC”) and sentenced to undergo imprisonment for life and to pay a fine of Rs.100/-, in default to undergo Simple Imprisonment for 15 days, is the appellant herein. 2. The case of the prosecution is that PW-1 is the brother of Vanthala Jattu (hereinafter referred to as the “deceased”). The accused and the father of the deceased are own brothers and have got joint landed properties and after the death of the father of the deceased, the accused did not give any share to the deceased and his family members and there were some disputes. On 27-01-2005 at the time of festival at Monjuguda, the deceased asked the accused about the share and the accused threatened him. While so, on 29-01-2005 at about 5-00 P.M., when the deceased was returning from Biriguda, the accused obstructed him near the land of one Somra and hacked him with an axe on his head and caused the death, which was witnessed by PWs. 2 and 3 and another Peddodu. The information was given by them to PW-1 and the family members of the deceased. On 03-01-2005 at about 11-00 A.M., PW-1 reported the matter to the police (LW-16), Munchingputt, who registered it as a case in Cr.No. 4/2005 under Section 302 IPC and investigated into. During the course of investigation, inquest was held over the dead body of the deceased, panchanama of the scene was conducted, and statements of the witnesses were recorded. On 04-02-2005 the accused gave a voluntary extra judicial confession to PW-8 and another Gurumurthy and produced the axe used in the commission of offence and they in turn produced the accused before the police, who recorded his statement and sent him for remand, and sent the axe for Forensic Science Laboratory, for examination. After completion of the investigation, a charge sheet was filed against the accused for the offences under Sections 341 and 302 of I.P.C. 3. The case was taken on file as P.R.C.No. 50/2005 by the Judicial Magistrate of I Class, V.Madugla, and committed the same to the Court of Sessions and it was made over to the VII Additional Sessions (Fast Track Court) Judge at Visakhapatnam, for disposal in accordance with law. 4. After appearance of the accused, the learned Sessions Judge framed the following charge against him: “that you and your brother Vanthala Battu had succeeded to the properties of your father; that you and your brother Buttu had a quarrel relating to the division of the properties; that you did not give any share to your brother; that after the death of Vanthala Buttu his son Vanthala Jattu had asked you for share in the property; that Jattu and you were quarrelling in that regard; that in that connection you have threatened Vanthala Jattu with death if he ask for a share in the property; that on 29- 01-2005 in the evening you and Vanthala Jattu had quarrelled at the field of Vanthala Somra of Mehelputtu village; that there was altercation between you and Vanthala Jattu; that in that altercation you hacked Vanthala Jattu with an axe; that it was witnessed by Vanthala Somra son of Bonnu, Vanthala Peddoru and Vanthala Zamedar who heard the loud altercation between you and Vanthala Jattu and came there; that after hacking Vanthala Jattu you fled the scene and that Vanthala Jattu was found dead with injuries on the head and on the neck; that you with an intention to kill Vanthala Jattu hacked him with an axe and thereby you committed an offence punishable under Section 302 of the Indian Penal Code, and within my cognizance”. Read over and explained to him, he pleaded not guilty and claimed to be tried. 5. To bring home the guilt of the accused, prosecution examined PWs. 1 to 12 and marked Exs.P-1 to P-10 and M.Os. 1 to 4. 6. After the evidence of the prosecution is over, the accused was examined under Section 313 Cr.P.C., for which, he denied the incriminating evidence. No defence evidence was adduced. 7. After considering the evidence on record, the learned Sessions Judge, found the accused guilty of the offence for which he was charged and accordingly, convicted and sentenced him as above. Aggrieved by the said conviction and sentence, the present appeal is filed by the Legal Aid Counsel since the accused has no means to engage an Advocate. 8. Heard the counsel for the appellant and also the learned counsel representing the learned Public Prosecutor. 9. Now the points for consideration are: (i) Whether the prosecution has proved that the accused has committed the murder of the deceased ? (ii) Whether the conviction and sentence imposed by the learned Sessions Judge is legal and sustainable ? 10. PW-1 (brother of the deceased), deposed that the deceased was his brother and the accused was his paternal uncle. There were disputes with regard to the enjoyment of the property between them and the accused. On the date of incident, when he returned at about 5- 00 P.M., he was told by PWs. 2, 3 and 6 about the death of his brother and the attack on him. Thereafter, he went and saw the dead body and found bleeding injuries and went to the M.P.T.C. member and reported the matter. Thereafter, he lodged the complaint to the police, which is Ex.P-1. In the cross-examination it was elicited that the agriculture was the occupation of his family. He denied the suggestion that there was a partition of the properties and the accused was cultivating his own land and living separately. He denied the suggestion that there was no quarrel with regard to the enjoyment of the property between the accused and the deceased. Evidently, he is not a witness to the incident and he claimed to have got a complaint drafted and affixed the thumb impression on Ex.P-1. According to him, there was a mediation in the village Biriguda before presenting of the complaint. 11. PW-2 is a resident of Biriguda and according to him, on the date of incident he was going to his fields to regulate the water and at about 5-00 P.M., he saw the accused beating the deceased with an axe on the neck, on the head, back and back side of the chest and the accused ran away from the scene and he chased him and he questioned the accused as to why he beat the deceased, the accused replied that due to the land disputes, he beat the deceased. Then, he along with PW-3 and others went and informed to PW-1 and he was present during the inquest on the dead body of the deceased. In the cross-examination, it was elicited that the lands of Munjiguda and the lands of Biriguda are in the same locality and he is an agriculturist. The omission that he was going to his field to regulate the water was elicited. So also the failure to mention that the accused stated that he killed the deceased was also elicited. 12. PW-3 is also said to be an eye witness to the incident along with PW-2 and another Peddodu. According to him, there was a quarrel between the accused and the deceased. While he was going to the fields along with PW-2 and another Peddodu, he saw the accused leaving the place with an axe and they found the deceased by the side of a school and he was found dead. Then, they went and informed PW-1 and later, police came and he was present at the time of inquest. In the cross-examination, he stated that he did not see as to who hacked the deceased and he does not know anything about beatings. 13. PW-5 is also the brother-in-law of the deceased and PW-1 and he came to know about the killing of the deceased and went to the scene and noticed the dead body of the deceased. He also spoke about the disputes with regard to the enjoyment of the property. PW-6 also spoke about the disputes between the accused and deceased with regard to the enjoyment of the property and the deceased asked the accused for some of the property during the festival season and the accused did not agree to give the land, later he came to know about the death of the deceased and went there. 14. The evidence of PW-7 reveals that he was the member of Grampanchayat, Biriguda and five or six days before the incident, there was a quarrel between the accused and the deceased with regard to the sharing of the properties and he asked the accused to give the share and subsequently on the date of incident after returning from the shandy, he came to know about the death of the deceased and went there. The police has conducted panchanama and also inquest in his presence under Exs.P-2 and P-3. 15. The evidence of PW-8 is that the accused came to him and gave a voluntary confessional statement under Ex.P-4 and he took the accused along with the axe and produced before the police. PW-9, who is M.P.T.C. Member of Laxmipuram. According to him, PW-1 came to him and informed about the incident and he got drafted Ex.P-1 and accompanied PW-1 to the police station. He claims that he was present at the time of the inquest on the dead body of the deceased. 16. The evidence of PW-10 is about conducting of Post Mortem Examination over the dead body of the deceased and noticing the following injuries: “1) A lacerated injury measuring 7 Cms x 3 Cms x 3 Cms over the occipital region with fracture of occipital bone with a linear abrasion along nuchal region. 2. A lacerated wound measuring 2 Cms x 1 Cm x 1 Cm behind the right ear. 3. A lacerated wound measuring 1 Cm x ½ Cm x ½ Cm over the left ear and fracture of temporal bone on the left side. 4. A lacerated wound measuring 5 Cms x 3 Cms x 3 Cms over scapular region. 5. A lacerated wound the back on the left side. 6. A lacerated wound measuring 2 Cms x 1 Cm x ½ Cm over the left arm. 7. region. 8. A lacerated wound measuring 1 Cm x ½ Cm x ½ Cm over the right scapular Multiple small abrasions over the left shoulder and left measuring 1 Cm x ½ Cm x ½ Cm over the left cheek. 9. A lacerated wound measuring 1 Cm x ½ Cm x ½ Cm over the right temple. 10. A contusion of 6 Cm x 3 Cm x 3 Cm at right temporal region. 11. Contusion on the right side of the neck”. He opined that the deceased appeared to have died of internal bleeding in the brain and internal lung bleeding and head injuries lead to death. He issued a certificate Ex.P-6. The evidence of PWs. 11 and 12 is about the investigation done by them in this case. 17. Mr E.Peddanna, learned counsel for the appellant strongly contends that there is no corroboration to the evidence of PWs. 2 and 3 and it is contradictory and the witnesses does not know Telugu and PW-9 is said to have translated the same from Oria to Telugu and they cannot be taken as true statements. Further, there is a delay in lodging the complaint to the police and therefore, the accused should not have been convicted by the lower Court. The alleged confessional statement relied on by the lower Court is not legal and the recovery cannot be believed. There are no fingerprints on the axe said to have been seized and therefore, the accused is entitled for an acquittal. On the other hand, the Public Prosecutor contends that the learned Sessions Judge has found the evidence of PWs. 2 and 3 as acceptable, that there is sufficient motive for the accused to commit the offence and there is no reason for implication of the accused falsely in the case by the nearest relative if he is not the real culprit. 18. According to the case of the prosecution, the dispute between the accused and the deceased is with regard to the enjoyment of the properties, which the deceased claimed to be in possession of the accused. In order to support this version of the prosecution, apart from the evidence of PWs. 1, 4 and 5, the evidence of PWs. 6 and 7, who are the independent members of the family, clearly goes to show that prior to the incident, a dispute has arisen between the parties and they have advised the accused to give the property or the share to the deceased. Therefore, in view of the above circumstances, the prosecution case about the disputes between the accused and the deceased cannot be said to be not proved or imaginary. 19. If really there are no disputes with regard to the enjoyment of the property, there is absolutely no other reason attributed by the accused to the prosecution witnesses and the nearest relatives to speak falsehood against the accused. If really the accused has got good relationship with the deceased or PW-1 or other family members, there is no reason to leave the real culprit and implicate the accused. Therefore, we have no hesitation to hold that the motive alleged by the prosecution is proved by the positive evidence of PWs.6 and 7 and prior to the incident, there were disputes and differences between the accused and the deceased. 20. When there is direct evidence about the commission of the offence from independent witnesses, the motive may not have much importance and in this case there is sufficient material to support the prosecution case about the motive. In this case we have got the evidence of PWs. 2 and 3, who are said to be the direct witnesses to the incident. Before appreciating the evidence of such witnesses subject to cross-examination in a Court of law, it has to be noted that all of them hail from tribal community living in not very much developed area, which is part of affected militants area and therefore, their answering of the questions and understanding of the questions and behaviour in the Court is quite different from well educated or other witnesses coming from a developed area. Apart from it, the entire incident and the place where the people are residing is a tribal area, which is affected with militants. Therefore, the same nature of education or response from the witnesses cannot be expected from such persons. It is more so, these witnesses are said to be knowing only Oriya and most of the proceedings are conducted in the Court in Telugu. Therefore, there are bound to be some communication difficulties and therefore, the answers given by the witnesses have to be carefully assessed keeping in mind whether they are interested witnesses or whether they are truthful witnesses to the incident. PWs. 2 and 3 are definitely not related to either the accused or the deceased. The fact that PWs. 2 and 3 have got lands near the place, where the deceased said to have been attacked, also not disputed in the cross-examination. The evidence of PW-2 clearly goes to show that he has seen the accused attacking the deceased with an axe and when questioned, the accused also asserted to have killed the deceased due to the land disputes with the deceased. This is a natural conduct in any village by any person, who had seen the attack to question the deceased. Therefore, the conduct of PW-2 cannot be said to be un-natural, and probablise persons at the scene of offence. Though PW-3 in the cross-examination has given some accommodative answers, the fact remains from the evidence of PWs.2, 3 and 1, is that PW-3 was present at the scene of offence along with PW-2. The evidence of PW-3 clearly goes to show that he has seen the accused going away from the accused and immediately gone to the deceased and found him dead with injuries. Except the presence of the accused and PWs. 2 and 3 at the scene, the presence of any other person is not elicited in the cross-examination of PWs. 2 and 3. Merely because PW-3 says that he did not see the actual attack on the deceased, his presence at the scene of incident and the evidence of PW-2 seeing the attack on the deceased cannot be discredited. On the other hand, the evidence of PW-3 does not destroy the evidence of PW-1 and supports his presence at the scene of incident. We feel that contradictions sought to be canvassed by the counsel for appellant are not material contradictions to come to a conclusion that PW-2 is speaking any falsehood. A clear reading of the evidence of PWs. 2 and 3 clearly establishes without any doubt that it was the accused only that was present at the time of the incident armed with an axe and the deceased was attacked with the axe and caused the death. Subsequently, both of them have gone and informed PW-1. Therefore, the reasons given by the learned Sessions Judge in accepting the evidence of PWs. 2 and 3 is very clear and we do not find any error in acceptance of such evidence. 21. The learned counsel for appellant contends that there was a delay in lodging the complaint to the police. As already stated above, it is a Tribal area affected with militants and the communication even by road takes lot of time and evidently the scene of offence is said to be about 30 Kms from police station, Munchingputt and therefore, some allowance has to be given to such cases. Not only that PW-1 has immediately gone and informed to the M.P.T.C., member about the incident. There is nothing to doubt the conduct of PW-1 in lodging the complaint after informing the M.P.T.C., member. Further, when there is no motive to implicate the accused in the crime leaving the real culprit, mere delay by itself cannot be a gorund to discard the positive and assertive evidence of PWs. 2 and 3 about the commission of the offence. Therefore, we are not in agreement with the counsel for appellant that there is unexplained delay on the part of the prosecution in lodging the report. Further more, we add that none of the witnesses were cross-examined to know the reasons for delay in lodging the complaint. So far as the seizure of the axe is concerned, no doubt the confessional statement Ex.P-5 suffers from some infirmity because already the axe and the accused were produced by PW-8 before the police. The fact remains that PW-8 is an independent witness, who is respectable and therefore, he also has no grudge against the accused to implicate him in the crime and as such the extra-judicial confession given to him, which was recorded under Ex.P-4 when he presented before the police the accused along with the axe has also be taken as corroborative piece of evidence from other circumstances. Therefore, absolutely no interference is required by this Court with the conviction and sentence imposed by the learned Sessions Judge against the accused. 22. Accordingly, Criminal Appeal is dismissed confirming the judgment, dated 13-03-2006 in Sessions Case No.80/2005 on the file of VII Additional Sessions Judge (Fast Track Court), Visakhapatnam. Date: 19-01-2011. ​ _____________ K.C. BHANU, J INL/HSD _________________________ N.R.L. NAGESWARA RAO, J THE HONOURABLE SRI JUSTICE K.C. BHANU AND THE HONOURABLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 996 OF 2007 January 19, 2011 INL/HSD