THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.1448 OF 2007 JUDGMENT: (Per Hon'ble Sri Justice N.R.L. Nageswara Rao) The accused in Sessions Case No.140 of 2006 on the file of I Additional Sessions Judge, Rajahmundry, East Godavari District, who were convicted for the offence punishable under Section 302 read with 34 of the Indian Penal Code, 1860 (for short, "I.P.C.") and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of one year, are the appellants herein. 2. The case of the prosecution is that the deceased, Kanchumarthi Nageswararao, was the husband of PW.1 and father of PW.2. One Lanka Maridiyya is the father of PW.1. He brought up A1, who is his brother's son. Thereafter, after marriage, A1 started living at Bhimavaram. A1 got disputes with his adopted father i.e., father of PW.1 and was demanding to convey his properties to him. Father of PW.1 did not agree for the same. Third daughter of PW.1 and the deceased was given in marriage to the second son of A1. Two years prior to the incident i.e., 11.10.2005, the said Maridiyya transferred the immovable property in the name of PW.1 and he was not having any properties. Therefore, A1 raised dispute with PW.1 and the deceased, and demanded them to give a share, which was refused. Subsequently, on the intervening night of 2/3.06.2005, when the deceased was sleeping in front of his house at Patha Peddapuram, A1 and A2 attacked the deceased, which was the subject matter of a case in Crime No.124 of 2005 registered for the offence punishable under Section 324 read with 34 I.P.C. of Peddapuram Police Station. But, subsequently also A1 did not give up his attempts. On 11.10.2005 at about 07:30 PM, while the deceased and PW.1 were going by walk from Patha Peddapuram to the main bazaar and when they reached near the culvert at Vakkalankavari Street Cross Road, Darga Centre, Peddapuram, all the accused with a common intention armed with knives and weapons attacked the deceased. PWs.2 to 5 came to the scene and they noticed the accused running away and they made enquiries with the deceased and he gave a declaration statement that he was attacked by A1 to A4. Thereafter, the deceased was taken to Government Hospital, Peddapuram, and from there to Government General Hospital, Kakinada, where he was proclaimed dead. On the strength of the complaint given by PW.1, a case in Crime No.242 of 2005 for the offence punishable under Section 307 read with 34 I.P.C. of Peddapuram Police Station was registered and after the death of the deceased it was altered into one under Section 302 read with 34 I.P.C. During the course of investigation, statements of the witnesses were recorded and panchanama of the scene was conducted. After the death of the deceased, inquest was held on the dead body of the deceased and it was sent to post-mortem examination. On 18.10.2005, A2 surrendered before the Court and he was taken into police custody and he gave a voluntary confessional statement and handed over the knife used in the commission of the offence. On 31.10.2005, A1, A3 and A4 were also arrested and in pursuance of their confession, the knives used in the commission of offence were seized. The accused were sent for remand and the seized properties were sent for examination to Forensic Science Laboratory. After completion of investigation, the accused were charged for the offence punishable under Section 302 read with 34 I.P.C. The case was taken on file as P.R.C.No.1 of 2006 by the Additional Judicial Magistrate of First Class, Peddapuram, and committed the same to the Court of sessions, which was made out to I Additional Sessions Judge, Rajahmundry. 3. After the appearance of the accused before the learned Sessions Judge, a charge under Section 302 read with 34 I.P.C. was framed, read over and explained to them in Telugu and they pleaded not guilty. 4. On behalf of the prosecution PWs.1 to 9 were examined and Exs.P1 to P21 were got marked besides case properties M.Os.1 to 8. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. and while maintaining the plea of innocence, to disprove the presence of PWs.1 and 2 at the scene, DWs.1 and 2 were examined and Ex.D1 and D2 were got marked on behalf of the defence. 6. The learned Sessions Judge, after appreciating the evidence on record, found the accused guilty of the offence for which they were charged and accordingly, convicted and sentenced them as stated above. Aggrieved by the same, the present Criminal Appeal is filed. 7. Heard Sri C. Padmanabha Reddy, learned senior counsel appearing for the appellants and the learned counsel representing the learned Public Prosecutor. 8. The points that arise for consideration are: 1) Whether the prosecution has proved that the accused have committed the murder of the deceased? 2) Whether the conviction and sentence recorded by the learned Sessions Judge is legal and sustainable? 9. In support of the prosecution case, PW.1, who is the wife of the deceased, spoke about the relationship between A1 to A4 and the property disputes, which were said to have been given by Maridiyya to her and also the factum of marriage of her daughter to the second son of A1. In cross-examination material particulars about the disposal of the properties by her father and also the fact that the properties were given to her were questioned. Further, the presence of PWs.2 to 4 and herself at the time of incident was disputed. She also spoke about the earlier incident of A1 and A2 attacking the deceased when he was sleeping outside. Further, filing of one criminal case against her husband by one Rajashekar was elicited. PW.2 is the son of the deceased who claims to have been present at the pan shop of one Surampudi Suribabu at about 07:00 PM on the date of incident and on hearing the cries of PW.1 and the deceased, he claims to have gone to the scene and found the accused armed with knives and his father being with injuries. He claims to have made enquiries with the deceased and he gave information about A1 to A4 stabbing him. PW.3 also claims to have gone to the scene and noticed A1 to A4 running away from the scene. PW.4 did not support the prosecution case about the accused attacking the deceased near the scene of offence, after immediately going there and was declared as hostile. PW.5 supported the prosecution case to some extent and the material aspect of PW.1 being present at the scene of incident and also the deceased giving information about the cause of death. He was declared as hostile and he did not support the prosecution case of seeing A1 to A4 armed with knives and going away. PW.6 is the doctor who conducted post-mortem examination over the dead body of the deceased and found the following injuries: “External: 1) A spindle shape penetrating stab injury of 3 x 1 cm size is present on left front mid chest region and it is 7 ½ cms below the inner end of left collar bone and 25 cms above the umbilicus and 1 cm away from front mid line chest (sternum). Blood clots present in the wound. Margins clean cut. 2) A spindle shape penetrating stab injury of 3 x 1 cms size is present on the right front upper chest region and it is 6 cms below the inner end of right collar bone and 27 cms above the umbilicus and ‘1 cm’ away from the front mid line chest (sternum). Blood clots present in the wound. Margins clean cut. 3) A spindle shape penetrating stab injury of 1 ½ x ½ cm size is present on front mid chest region and it is 16 cms below the suprasternal notch and 18 cms above the umbilicus and one and half cms away and right to front mid line chest (sternum). Blood clots present in the wound. Margins clean cut. 4) A skin deep incised wound of 5 x ½ cm size is present on the right front mid chest region. 15 cms below the middle of right collar bone and 25 cms above the umbilicus and 4 cms away from front midline chest. Tailing is present on right end of the wound. Blood clots present in the wound. Margin clean cut. 5) A spindle shape penetrating stab injury of 3 ½ x 2 cm side is present on right lower chest region on outer aspect in the 8th intercostals space. 14 cms below the right nipple. 22 cms above the outer end of right origin and 17 cms away from front mid line abdomen. Margins clean cut. Blood clots present in the wound. 6) An abrasion of 2 x ½ cms size is present on the front mid abdomen region 3 ½ cms above the umbilicus. Red in colour. 7) A muscle deep spindle shape penetrating stab injury of 2 ½ x 1 x 3 cms size is present on the outer aspect of left fore arm 2 ½ cms below the left elbow. Margins clean cut (Defence wound). 8) A muscle deep spindle shape incised wound of 3 ½ x 1 x 2 cms size is present on the inner aspect of and back of left fore arm 13 cms below the back of left elbow. Margins clean cut (Defence wound). 9) A spindle shape 4 x 1 ½ cm size penetrating stab injury is present on right back lower chest region 25 cms below the nap of neck and 30 cms above the upper border of right buttock and 8 cms away from the back mid line chest (spinal coloumn) Blood clots present in the wound. Margins clean cut. 10) A skin deep spindle shape incised wound of 2 x 1 cm size is present on right back chest ½ cm away from mid line 37 cms below the nap of neck and 23 cms above the gluteal fold. Blood clots present in the wound. Margins clean cut. 11) A spindle shape penetrating stab injury of 5 x 1 cm size is present on right back lower abdominal region, 47 cms below the nap of neck and 12 cms above the upper border of right buttock and 5 ½ cms away from back midline abdomen (spinal coloumn) blood clots present in the wound. Margins clean cut. 12) A penetrating spindle shape stab injury of 2 ½ x 1 ½ cms size is present. 1 cm below the external injury No.11. Blood clots present in the wound. Margins clean cut. 13) An abrasion of 2 x ½ cms size is present on the upper boarder of outer aspect left buttock red in colour. Internal: 14) Corresponding to external injury No.1 on dissection it pierced skin, subcutaneous tissues intercostal muscle and entered chest cavity and pierced the anterior aspect of lower lobe of left lung where it measured 2 x 1 x 1 cm size blood clots present in the wound. Direction : Front to back above down wards from left to right. 15) Corresponding to external injury No.2 and dissection in pierced skin subcutaneous tissues and inter costal muscles and entered chest cavity and pierced the anterior aspects of middle lobe of right lung where it measured 1 x 1 x 1 cm size. Blood clots present in the wound. Direction: Front to back above downwards right to left. 16) Corresponding to external injury No.3 on dissection it pierced subcutaneous tissues intercostal muscles where it is measured 1 x 1 x ½ cms size and not entered the chest cavity. Blood clots present in the wound. Direction: Front to back above downwards and right to left. 17) Corresponding to external injury No.5 on dissection it pierced skin subcutaneous tissue muscles and entered peritoneal cavity and pierced right lobe of liver where it measured 4 x 3 x 2 cms size. Blood clots present in the wound. Direction: Right to left above downwards. 18) Corresponding to external injury No.9 on dissection it pierced skin subcutaneous tissues intercostal muscle and entered the chest cavity and pierced posterior aspect of lower lobe of right lung where it measured 3 x 3 x 1 cms size. Blood clots present in the wound. Direction: Right to left back to front and above downwards. 19) Corresponding to external injury No.11 on dissection it pierced skin subcutaneous tissues back abdominal muscles and entered peritoneal cavity and pierced lower pole of right kidney where it measured 1 x 1 x 1 cm size along with injury to mesentery. Blood clots present in the wound. Direction: Back to front right to left and above downwards. 20) Corresponding to external injury No.12 on dissection it pierced skin subcutaneous tissues back abdominal muscles and entered peritoneal cavity and cut the mesentery where it measured 2 x 1 x 1 cm size blood clots present in the wound. Direction: Back to front above downwards right to left. 21) Five hundred M.L. of blood and blood clots present in chest cavity. 22) 800 ML of blood and blood clots present in the peritoneal cavity.” He opined that the death of the deceased was due to hemorrhage and shock. He issued Ex.P4 - post-mortem certificate. PW.7 is the V.R.O. of the village. The evidence of PW.7 is about his presence at the time of conducting panchanama of the scene and also inquest over the dead body of the deceased. He also spoke about the apprehension of A2, interrogation of A2 on 30.10.2005, confession given by him and seizing of the weapons in pursuance of his confession. He also further deposed that on 31.10.2005, A1, A3 and A4 were apprehended and they gave confessional statement and the weapons used in the commission of offence were seized. The evidence of PWs.8 and 9 is about the investigation done by them in this case. 10. Learned senior counsel appearing for the appellants contended that there is no evidence which can be accepted as truthful to convict the accused. The witnesses PWs.4 and 5 were declared as hostile. The presence of PW.3 is not believed by the lower Court. The evidence of DWs.1 and 2 shows that PWs.1 and 2 are not at the scene of offence and they came later and therefore, the conviction and sentence imposed by the learned sessions judge against the accused are not legal. 11. On the other hand, learned counsel representing the learned Public Prosecutor contended that PW.1 is a natural witness, who is said to have accompanied the deceased and the oral declaration given by the deceased to PWs.2 to 5 is proved abundantly by the evidence on record and the learned Sessions Judge has rightly recorded the conviction against the accused on the basis of acceptable and corroborative evidence and hence, there is no reason to disbelieve the prosecution case and to interfere with the conviction and sentence recorded by the learned Sessions Judge. 12. So far as the relationship between the parties is concerned, there is no dispute. The fact that PW.1 was given the property by her father is also not in dispute. Whether PW.1 was born to the legally wedded wife of Maridiyya or not, is not relevant for this case. The dispute is with regard to conveying of property to PW.1 by her father without giving any property to A1, who is also said to have been brought up by Maridiyya. The motive to commit the offence by the accused is also proved from the evidence of PW.1, who spoke about the earlier attack on the deceased by A1 and A2, when the deceased was sleeping outside the veranda. In her cross-examination there is no dispute about this. Therefore, it is quite clear that the disputes were between the accused family and PW.1 as she got the property. 13. Learned counsel for the appellants contends that when the property is in the name of PW.1, the accused attacking on the deceased is not acceptable and any one would have targeted PW.1. This contention does not hold good for the reason that the attack on the husband of PW.1 will be more beneficial to the accused persons since PW.1 will be put to suffering and she has to give in to the threats of the accused. Therefore, clearly because the property is in the name of PW.1, the scope of attacking on the deceased is to be excluded, cannot be accepted. 14. In this case, there is direct evidence of PW.1 and the question before the Court is whether her evidence is to be accepted or not. According to the case of the prosecution, PW.1 and the deceased were going together at about 07:30 PM and near the scene of offence, which is evidently a junction of roads and a busy locality, the deceased is said to have been attacked. The contention of the accused that there was bandh call due to the death of one Muppana Rama Rao and therefore, the shops could not have been opened and the persons could not have been present cannot be accepted since it is a common knowledge that during bandh calls, closure of shops will be only till 05:00 PM and thereafter, every business transaction will take place. Therefore, the deceased and PW.1 going together to the Bazaar for shopping on the date of incident cannot be ruled out as improbable. In fact, from the evidence of PWs.2 to 5, the opening of the shops and the presence of the people at the scene is not disputable, particularly at about 07:30 PM. Therefore, the question is whether really PW.1 was present along with the deceased. In fact PW.2, who is the son of the deceased and PW.1, claims to have come to the scene after hearing the cries of PW.1. He also states that he saw the accused from a distance and they left after he came. Merely because PWs.1 or 2 did not interfere with the attack by the accused, their evidence cannot be discredited. When four persons are attacking the deceased, it is common knowledge that any witness present there will be afraid of interfering because there is a possibility of attacking on the witness also. The learned Sessions Judge did not accept the evidence of PW.3 for the reason that his name was not mentioned in the complaint given by PW.1. But, however, to support the evidence of PW.1, the evidence of PW.5, who is an independent witness and a neighbour of the deceased is believed by the lower Court. His evidence clearly goes to show that he has gone to the scene after immediately hearing the cries and found PW.1 and also enquired from the deceased and the deceased is said to have given oral dying declaration about the attack by A1 to A4. The evidence of PWs.1 and 2 also supports this version of the deceased giving a declaration about the cause of his death. Such statement is evidently admissible under Section 32 of the Indian Evidence Act, 1872. Further, from the cross-examination of PW.5, his presence near the scene of offence and the place where he stayed at the time of incident being close to the scene of offence are not in dispute. He has come immediately after hearing the cries and therefore, if the evidence of PW.5 about this fact is accepted then it is a corroboration to the evidence of PW.1 and the contention that PWs.1 and 2 were not at the scene at the time of attack cannot be believed. The evidence of DWs.1 and 2 therefore, cannot be given much credence and at any rate, at any point of time they have not given any affidavit or evidence before the police that they have seen the deceased with injuries and at that time nobody was present, particularly PWs.1 and 2. Therefore, the lower Court has rightly rejected the evidence of DWs.1 and 2. 15. From the narration of the facts stated above it is quite clear that PW.1 was bodily present with the deceased at the time of incident and there is absolutely no reason for her to implicate the accused persons when her daughter was given in marriage to the son of A1. There is absolutely no reason for her to leave the real culprit and implicate her closest relatives. Therefore, we find that the evidence of PW.1 is trustworthy, acceptable and conclusive about the fact that the accused attacked the deceased with knives and caused multiple injuries. Furthermore, the evidence of PW.1 can be corroborated with the evidence of PWs.2 and 5 about the statement given by the deceased. The learned Sessions Judge therefore, rightly accepted the evidence and convicted the accused persons. Added to that, the recovery is also proved by the prosecution in pursuance of the confessions. The feeble attempt made by the learned counsel for the appellants that the deceased would not have been in a position to give information to PWs.1 to 5 at the scene cannot be accepted, for the reason that the doctor was not examined as to whether the injured can give such a statement or not and further, initially the crime was registered only under Section 307 read with 34 I.P.C. 16. Therefore, for all the above reasons, we do not find any reason to interfere with the conviction and sentence imposed by the learned Sessions Judge against the accused. 17. Accordingly, the Criminal Appeal is dismissed confirming the Judgment, dated 06.10.2007, made in Sessions Case No.140 of 2006, on the file of I Additional Sessions Judge, Rajahmundry, East Godavari District. _______________ K.C.BHANU, J ____________________________ N.R.L.NAGESWARA RAO, J January 21, 2011 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FIRST DAY OF JANUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.1448 OF 2007 Between: Lanka Apparao and others ..... APPELLANTS AND State of Andhra Pradesh ....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.1448 OF 2007 January 21, 2011