THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.443 of 2007 ORAL JUDGMENT: (per the HON’BLE SRI JUSTICE D.S.R.VARMA) Heard Sri C.Masthan Naidu, learned counsel appearing for the appellant, as well as the learned Additional Public Prosecutor, appearing for the respondent-State. 2. Appellant is accused No.1 in the Sessions Case. 3. This Criminal Appeal is directed against the judgment, dated, 13.12.2006, passed by the Special Sessions Judge for trial of cases under S.Cs & S.Ts (PCA) Act-cum-X Additional District and Sessions Jude, Machilipatnam, convicting the accused for the offence punishable under Section 302 of the Indian Penal Code (for brevity “IPC”) and sentencing him to suffer imprisonment for life and to pay a fine of Rs.100/-, and also convicting under Section 201 IPC and sentencing him to suffer rigorous imprisonment for three years and to pay a fine of Rs.100/-. 4. The case of the prosecution, in brief, is that A-1 and one Rahelu (hereinafter referred to as “the deceased”), who are the husband and wife, were working under P.W.1, maintaining all alone his sapota garden; that P.Ws.9 and 10, the wife and husband, were looking after the neighbouring garden of P.W.1; that A-1 was doubting the fidelity of the deceased; that, on the fateful day, the deceased was done to death by beating on her head and later hacked on her neck, with an axe; that, later on, A-1 threw away the iron rod and the axe into the hayrick and set fire to the hayrick in order to screen the offence; that A-1 ran to the neighbouring garden and informed P.Ws.9 and 10 that some unknown persons came to their garden and killed the deceased; that, on the next day morning, P.W.1 gave a report, under Ex.P-1, to the police and that after completion of all the necessary formalities, police laid the charge sheet. 5. The trial Court, having considered the entire material, including the evidence, both oral and documentary, available on record, convicted A-1 for the offences punishable under Sections 302 and 201 IPC and sentenced him, as stated supra, while acquitting A-2 and A-3 of the offences punishable under Sections 302 read with Section 109 IPC and Section 3 (2) (v) of the S.Cs and S.Ts (POA) Act. Aggrieved by the same, A-1 has preferred the present Criminal Appeal. 6. The judgment, impugned in this Criminal Appeal, has become final, only insofar as the acquittal of A-2 and A-3, since no appeal has been preferred challenging the same. 7. In order to substantiate its case, the prosecution examined P.Ws.1 to 16 and got marked Exs.P-1 to P-15, besides M.Os.1 to 5, on its behalf. On behalf of defence, none were examined and no documents were marked. 8. Now, the point that arises for determination, in this Criminal Appeal, is whether the evidence on record is sufficient to convict and sentence the appellant/A-1 for the offences punishable under Sections 302 and 201 IPC? 9. This is purely a case of circumstantial evidence. Therefore, the evidence on record has to be scrutinized with due care and caution. 10. The evidence of P.Ws.9 and 10 is very important and crucial, inasmuch as, the first circumstance is that there is no scope for any other person, except A-1, to enter into the garden of P.W.1. and P.W.1 also spoke to the same effect. He further stated that the deceased and A-1 alone were staying together in the garden. 11. The evidence of P.Ws.2, 3, 4, 5 and 6 is not necessary because their testimony does not throw any light on the case of the prosecution. Therefore, we are not discussing anything about the evidence of those witnesses and there is no dispute also, in this regard, by either side. 12. P.W.9 deposed that, at about 1.00 am, on the fateful day, A-1 came to him by raising cries stating that one unknown person murdered his wife and that he also noticed chilli powder on the body of A-1. 13. P.W.10, who is the wife of P.W.9, also spoke to the same effect. But, she further stated that A-1 came to their garden and told them that four persons took his wife, the deceased, at about 3.00 am., on the date of incident. 14. These are the two areas where there is a discrepancy between the evidence of P.W.9 and P.W.10. Insofar as the discrepancy regarding the time, it need not be given much weight, inasmuch as, it need not necessarily be 1.00 am., or 3.00 am., in the night. If the time is around the said time, it is enough and the said discrepancy cannot be treated as a vital discrepancy and, therefore, cannot be given much significance. Therefore, the same, in our view, is not capable of demolishing the trustworthiness of the evidence of P.Ws.9 and 10. 15. The important factor to be noticed is that, even according to the evidence of P.Ws.9 and 10, on the night of the fateful day, the deceased and A-1 alone were residing in the garden and there is no access to anybody, except A-1, to kill the deceased. Even assuming that somebody gained entry into the garden of P.W.1 and killed the deceased, A-1 did not raise any alarm and further it is on record that the hayrick was also set to fire. This fact also was not given much importance. 16. Therefore, two things certainly happened; firstly, killing of the deceased, and secondly, setting fire to the hayrick. There is no plausible reason by anyone or even by A-1 as to how the hayrick was set to fire, even assuming that some miscreants have entered into the garden and killed his wife, the deceased. Another interesting aspect is that nothing was spoken to by A-1 before P.Ws.9 and 10 about the setting fire to the hayrick. Therefore, that fact was not attached with much importance and just went almost unnoticed. 17. However, the fact remains that on the fateful day it was only A-1 and his wife i.e., the deceased, alone were in the garden, during the night time. In such circumstances, the only possibility is for A-1 to commit murder of the deceased. Therefore, it can be inferred that the opportunity of killing the deceased is available to A-1 only. 18. The other aspect to be noticed is; the presence of A-1 at the mid night, on the fateful day i.e., just before commission of the offence, at the place of occurrence. This is also established by the evidence of P.Ws.9 and 10. 19. The other important aspect that is on record is that through Ex.P-9, which is the arrest mahazar, A-1 was arrested and his confessional statement was marked. The admissible part of the confession was with regard to the recovery of the weapons. 20. As spoken to by P.W.14, who was a mediator, while supporting the case of the prosecution, it is A-1 who took up the iron rod and the half burnt axe from the ashes of the hayrick. 21. Of course, the learned counsel appearing for A-1 was critical about the evidence of P.W.14, inasmuch as, he admitted that he acted as a mediator in some other cases also, therefore, his evidence has to be ignored. We cannot agree with this contention, inasmuch as, merely because he was a party to the earlier proceedings of mediation, automatically his testimony is to be discarded and unless and until his conduct and trustworthiness is demolished. In other words, mere participation as a mediator in some other proceedings does not disentitle the act of mediator so long as his evidence is trustworthy. 22. Further, from the cross-examination of the above witness, except the fact that he acted as a mediator in some other proceedings also, nothing could be elicited. Therefore, we do not find any reason to disbelieve the evidence of P.Ws.9 and 10 and consequently we have no reason to brush aside the admissible portion of the confession of P.W.14 as regards the recovery of he weapons used in the commission of the offence. 23. Further, it is to be seen that insofar as the first weapon i.e., half burnt axe, it is a weapon, which was used to cause injury on the neck of the deceased, as was spoken to by the Doctor, P.W.11, in Ex.P-4, and the iron rod is concerned, it is evident from the medical evidence that there are blebs on the hands and feet of the deceased, which is an indicative factor that before the deceased was done to death by the axe, she was beaten by the iron rod and lastly the death blow was inflicted on the neck of the deceased, resulting in her death, and only in order to destroy the weapons, those weapons were thrown into the hayrick, which was lying before the death of the deceased, and only subsequent thereto, it was put to flames. Obviously, this conduct on the part of A-1 amounts to an offence punishable under Section 201 IPC, inasmuch as, it was a deliberate attempt to screen the evidence relating to the offence. 24. The above two circumstances, in our view, are quite strong and enough to conclude that A-1 alone killed the deceased and no one else. In other words, the circumstances that have narrated by the evidence of P.Ws.9, 10 and 14 is such that the circumstances stated by them suggest that A-1 alone can be fastened with the liability of the offence punishable under Section 302 IPC. Further, the evidence of P.W.14 is sufficient to establish the offence allegedly committed by A-1 for the offence punishable under Section 201 IPC. 25. Another aspect that may fall for consideration incidentally is – what could be the motive for A-1 to kill the deceased? 26. Normally, motive is not relevant in criminal adjudication. But, some times, particularly when the case rests upon the circumstantial evidence, the same may be relevant. 27. In this regard, it is to be seen that P.Ws.3 and 5 spoke about the relationship between the deceased and A-1 and also the dispute regarding the fidelity of the deceased. This also may throw some light. In other words, this aspect of movie cannot be totally brushed aside. Even in the absence of any such motive, we are of the view that the motive sometimes may be hidden and cannot be brought into light. But, in the present case, the motive aspect appears to have some proximity with the conduct of A-1 and the resultant offence committed by him under Sections 302 and 201 IPC. 28. Therefore, we do not find any reason to interfere with the impugned judgment, inasmuch as, the reasoning assigned by the trial Court is cogent and reasonable. 29. For the foregoing, the Criminal Appeal fails and is liable to be dismissed. 30. In the result, the Criminal Appeal is dismissed, confirming the impugned judgment, dated, 13.12.2006, passed by the Special Sessions Judge for trial of cases under S.Cs & S.Ts (PCA) Act-cum- X Additional District and Sessions Jude, Machilipatnam, convicting the appellant/A-1 for the offence punishable under Section 302 IPC and sentencing him to suffer imprisonment for life and to pay a fine of Rs.100/-, and also convicting under Section 201 IPC and sentencing him to suffer rigorous imprisonment for three years and to pay a fine of Rs.100/-. ____________________ JUSTICE D.S.R.VARMA _____________________ JUSTICE R.KANTHA RAO 17TH NOVEMBER 2009 MSR THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.443 of 2007 (Judgment of the Division Bench delivered by The HON’BLE SRI JUSTICE D.S.R.VARMA) 17TH NOVEMBER 2009