THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 808 of 2007 JUDGMENT: (per the Hon’ble Sri Justice K.C.Bhanu) 1. This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’), is directed against the judgment dated 26.02.2007 in Sessions Case No.405 of 2006 on the file of the Sessions Judge, Guntur, whereunder and whereby the appellant/sole accused was found guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, ‘IPC’), accordingly convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/- in default to suffer rigorous imprisonment for a period of six months. 2. The case of prosecution, in brief, is that the accused is husband of Sajja Siva Parvathi(hereinafter referred to as ‘the deceased’). P.Ws. 1 and 2 are their sons. The deceased was running a hotel in front of her house and the accused had no work. He had debts in the village. The deceased used to ask him to clear off the debts with the amounts received from the lease of lands, which was being objected by him. On 20.6.2006, the accused beat the deceased for the same cause. During night on that day, P.Ws. 1, 2 and the deceased slept inside the house while the accused slept in verandah of the house. At about 12.00 mid night, the accused entered inside the house, sat on chest of deceased and started fisting her face and also throttling her neck. On hearing cries of deceased, P.Ws. 1 and 2 woke up, but did not raise any alarm due to fear of the accused. The deceased forcibly threw away the accused, on that he fell down and received a small injury to his right hand. When the deceased tried to get up, the accused caught hold of her tuft, hit her head to leg of a cot. Then the deceased fell down without movement. Thinking that the deceased died and P.Ws. 1 and 2 were asleep, the accused went away. Thereafter, P.Ws. 1 and 2 came out and raised cries. On that, P.W.5 and others rushed to the spot and found the deceased unconscious. They shifted the deceased to hospital, where she was declared dead. On the report given by P.W.1, police registered the case, observed the scene of occurrence, drafted observation report in the presence of mediators and also prepared a rough sketch of the scene of occurrence. Police held inquest on the dead body of the deceased and thereafter sent the same to postmortem examination. After receiving relevant documents and completion of investigation, police laid the charge sheet. 3. The trial Court framed the following charge against the accused. “That you on or about the 20th day of June, 2006 at about 12.00 mid night in the premises of your house at NALLURI PALEM VILLAGE, Repalle Mandal, did commit murder by intentionally (or knowingly) causing the death of SAJJA SIVA PARVATHI, W/o. Krishna Rao, 38 years, NALLURI PALEM VILLAGE, Repalle Mandal i.e. your wife, by throttling her neck, and hit her head to the leg of cot, and that you thereby committed an offence punishable under Sec.302 of Indian Penal Code and within my cognizance.” When the charge was read over and explained to the accused in telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the case of prosecution, P.Ws. 1 to 9 were examined and Exs.P1 to P8 were got marked, on behalf of the prosecution, besides case properties M.Os. 1 to 5. 5. After completion of the evidence on prosecution side, the accused was examined under Section 313 Cr.P.C. to explain the incriminating evidence appearing against him in the evidence of prosecution witnesses. He denied the same. No oral or documentary evidence was adduced on behalf of the defence. 6. After considering the material available on record, the learned Sessions Judge, vide the impugned judgment, found the appellant/accused guilty of the charge levelled against him and accordingly convicted and sentenced him as stated above. Aggrieved by the said judgment, the present appeal has been preferred by accused. 7. Now, the point for determination is whether the prosecution is able to bring home the guilt of the accused for the charge levelled against him beyond all reasonable doubt and whether the conviction and sentence recorded by the trial court is legal and proper ? 8. The learned counsel for the appellant contended that P.Ws.1 and 2, who are boys aged about 16 and 18 years respectively, would have interfered with the accused while beating the deceased if they had really present at the time of the alleged incident, and because they have not interfered, it establishes that they were sleeping at the time of the alleged incident; that, there are discrepancies in their evidence; that, there is no motive for the accused to commit murder of the deceased; that there is no evidence to show that the accused squeezed neck of the deceased, which is contradictory to the contents in First Information Report; that, there is a delay of 11 hours in lodging the report to police; that, even the Head Constable of Police, who went to the hospital at about 3.00 AM, did not examine any person, and so the delay was taken with a view to implicate the accused falsely, and therefore, he prayed to set aside the conviction and sentence recorded by the trial court. 9. On the other hand, the learned counsel representing the Public Prosecutor contended that presence of P.Ws. 1 and 2, being children of the accused and the deceased, at the time of the incident is quite natural and probable; that, as the incident was preceded by a quarrel, there was possibility for both the witnesses to wake up, and so there was a scope for them to witness the incident; that, simply because they have not reacted in the manner expected from a prudent man, it cannot be a ground to discredit their testimony; that, the presence of P.Ws. 1 and 2 at the relevant point of time of the incident has not been denied or disputed; that, they have no other reason to implicate the accused falsely, if somebody had committed the murder of the deceased; that, after an elaboration consideration of the evidence on record, the trial court rightly convicted and sentenced the accused, and there are no grounds to interfere with the same. Hence, he prayed to dismiss the Criminal Appeal. 10. P.W.6 is one of the mediators present when the police conducted inquest on the dead body of the deceased under Ex.P3-inquest report. The inquest mediators opined that the deceased died due to the injuries inflicted by her husband. 11. P.W.7 is the Doctor who conducted inquest on the dead body of the deceased on 21.6.2006 at about 4.20 PM, and found the following ante-mortem injuries. 1) A contusion of 2 cm x 2 cm on below left mastoid process. 2) An abrasion of 1 cm x 1 cm below the chin. 3) A nail bitten marks of 3 in number on the front of neck on right side, at middle and nail marks of 3 in number on the left side in front of the neck. 4) A contusion of 5 x 5 cm on the forehead. 5) A contusion of 4 cm x 4 cm on right temporal region. 6) An abrasion of 2 cm x 2 cm on the back of right ear. 7) An abrasion of 2 x 2 cm on the back of left ear. He stated that hyoid bone was fractured on either side and opined that the deceased would appear to have died of asphyxia due to throttling and multiple injuries and injury to vital organ brain, and the death must have occurred between 24 and 36 hours prior to his examination. He issued Ex.P5-post mortem report. The evidence of P.W.7 and the recitals in Ex.P5 remained unchallenged. From the evidence of P.Ws.6 and 7 and the recitals in Exs.P3 and P5, homicidal nature of death of the deceased is established beyond reasonable doubt. Now, it has to be seen whether the accused is the assailant of the deceased or not. 12. It is not in dispute that the accused is none other than husband of the deceased. They were living together in Nalluripalem village. P.Ws. 1 and 2 are their sons. The deceased was selling coffee, tea and edibles in front of their house. They were also having Ac.3.00 of land which given to lease. The case of prosecution is that prior to the incident, the accused was beating the deceased on flimsy reasons. With regard to presence of P.Ws.1 and 2 at the time of the incident, their presence at the time of the incident is not specifically denied or disputed by the accused. But, the contention of the learned counsel for the appellant is that they were sleeping at the time of the incident and therefore there was no possibility for them to witness the alleged incident. The evidence of P.Ws. 1 and 2 would go to show that while they were sleeping inside the house, around midnight, the accused beat their mother and that she raised cries after receiving the beatings; then, they woke up and saw the accused beating the deceased and also saw blood was oozing out from her head, and that, the accused also caught hold of head of the deceased and hit her head to the frame of the cot; on that, the deceased lost consciousness and fell down; then, the accused went out of the house. It is also clear from the evidence of P.W.1 that he immediately came out and informed the same to P.W.5 and also telephoned to hospital for ambulance, and that ambulance came to their house in pursuance of the telephone call, and the body was taken to the hospital. After receipt of hospital intimation, P.W.8-Head Constable of Police went there at about 3.00 AM on 21.6.2006, and as nobody was present, he might not have recorded statement of any persons. He waited for arrival of the report. At about 11.00 AM, P.Ws. 1 and 2 along with their maternal uncle P.W.3 went to police station and lodged Ex.P1-report. The recitals in Ex.P1 are more or less in the same lines as that of evidence of P.W.1. The fact that P.Ws. 1 and 2 woke up after hearing the cries of their mother is found to be probable. As all of them are residing in a single hut room, even for a slight noise in the hut, there is a scope for the inmates of the hut to wake up, and especially when the deceased raised cries as the accused was beating her, there was every possibility of P.Ws. 1 and 2 waking up and they had an opportunity to witness the incident. In view of the fact that only four persons were residing in one room hut, it can be said that it is the accused alone and none else, who is the assailant of the deceased. 13. The contention of the learned counsel for the appellant is that because P.Ws. 1 and 2 have not intervened when the accused was beating their mother, it can be said that they were sleeping at the time of the alleged incident. But, we are unable to accept the said contention because P.W.1 categorically stated that due to fear that his father might beat them, they did not interfere with the quarrel. The said explanation is satisfactory and that possibility cannot be ruled out. The reaction of a person in a particular situation varies from man to man. Because P.Ws. 1 and 2 have not reacted in the manner expected from a prudent man, that cannot be said to be a ground to discredit their testimony, when their presence at that time is found to be natural and probable. They both are children of the accused and the deceased. If really any other person committed murder of the deceased, they would not have implicated the accused, who is their own father, as the assailant of the deceased leaving the real assailant. Nothing has been elicited to discredit the testimony of P.Ws.1 and 2. It is suggested to them that due to pressure from their maternal uncle, a false case is foisted against the accused. But, the maternal uncle of P.Ws. 1 and 2 is not shown to have any grouse or enmity against the accused so as to implicate the accused in a case of this nature falsely. Therefore, the contention of the learned counsel for the appellant that at the instance of their maternal uncle, P.Ws.1 and 2 have given false evidence, cannot be accepted. 14. Coming to the discrepancies, no doubt, it is stated in the First Information Report that the accused squeezed neck of the deceased, but that aspect of the case has not been spoken to, by P.Ws.1 and 2. This discrepancy, in our considered opinion, is not a discrepancy which will affect the main substratum of the prosecution case. Some discrepancies which are trivial in nature, are bound to occur even in the case of truthful witnesses who are made to depose about the incident after lapse of 5 or 6 months of its occurrence. 15. It is further contended by the learned counsel for the appellant that there is absolutely no motive for the accused to commit murder of the deceased. No doubt, the prosecution has not come forward with a specific motive for the accused to commit the murder of the deceased. But, frequent quarrels were occurring in between the accused and the deceased, because the deceased borrowed certain amounts from her sister and when she received lease amount from the land, she wanted to clear off the debt due to her sister for which the accused was not agreeing. For that reason, there is a possibility for the accused and the deceased to quarrel with each other. In any view of the matter, motive is not an integral part of the crime and it is only an aid in assessment of criminality. Simply because motive has not been established, it does not lead to an irresistible conclusion that the evidence of P.Ws. 1 and 2, whose presence at the time of the incident is established beyond reasonable doubt, has to be doubted. 16. Coming to the delay in giving report to police, no doubt, there is a delay of 11 hours in giving the report. As there are no other elder persons residing in the hut, necessarily, P.Ws. 1 and 2 had to wait for arrival of elders. On coming to know about the death, P.W.3- maternal uncle of P.Ws.1 and 2 rushed to the hospital along with relations, thereafter he went to the police station along with P.W.1 and lodged the report. Therefore, in these circumstances, delay of 11 hours in lodging the complaint, cannot be shown to have taken so as to implicate the accused falsely. When the deceased was done to the death by their father, it is not expected from his sons aged 16 and 18 years, to rush to the police station to lodge the complaint. Necessarily, they have to wait for arrival of elders, and on their arrival, P.Ws.1 and 2 went to police station and lodged report to P.W.8, who registered the case and took up investigation. Even otherwise, the delay by itself is not a circumstance so as to throw away the entire case of the prosecution. At best, it can be one circumstance that can be taken into consideration along with other evidence, if any to doubt the prosecution case. There are no such other doubtful circumstances in the prosecution case so as to take the delay as one circumstance. 17. Further more, P.W.5 stated that on that day, after closing his shop, while he was going to home, he heard cries in the house of the accused and some people also gathered there; then he went near the house and found wife of the accused lying unconscious in a pool of blood; that, within half-an-hour, ambulance came there and the body was shifted to the hospital in the ambulance. Therefore, from the above evidence, it is clear that the incident had taken place in the hut of the accused and the deceased, and there was no third person present there except P.Ws. 1 and 2, who are their sons residing with them. Similarly, there is no possibility for any third person to enter into the house to commit the offence during the night time. The trial Court, upon appreciation of the evidence on record in right perspective, found the accused guilty, accordingly convicted and sentenced him. None of the findings is shown to be illegal or contrary to the evidence on record. So, there are no grounds to interfere with the conviction and sentence recorded by the trial Court. 18. In the result, the Criminal Appeal is dismissed confirming the judgment dated 26.02.2007 in Sessions Case No.405 of 2006 on the file of the Sessions Judge, Guntur. ------------------------- (K.C.BHANU, J.) ------------------------------------------ (N.R.L. NAGESWARA RAO, J.) 22.12.2010 DRK THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 808 OF 2007 (per the Hon’ble Sri Justice K.C.Bhanu) 22.12.2010 THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 808 OF 2007 Date: 22.12.2010 Between: Sajja Krishna Rao …Appellant/accused And The State of A.P. rep. by the Public Prosecutor, High Court of A.P., Hyderabad …Respondent