THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No. 602/2007 Dt. 20-10-2010 Chikkudu Chandraiah ..Appellant/accused V. The State of Andhra Pradesh, represented by its Circle Inspector of Police, Achampet, Mahabubnagar District through the Public Prosecutor, High Court of A.P., Hyderabad. ..Respondent/complainant The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No. 602/2007 JUDGMENT (per the Honourable Justice A.GOPAL REDDY) The appellant, who is sole accused in SC No.191/2009 on the file of Special Sessions Judge for the trial of cases under Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989-cum- VII Additional District & Sessions Judge, Mahabubnagar, was put to trial for the offence under Section 302 IPC. Learned Sessions Judge, by judgment dt. 17-4-2007 found the accused guilty of the offence under Sections 302 IPC and convicted accordingly and sentenced him to suffer imprisonment for life for the offence under Sec. 302 IPC. The gravamen of the charge framed against the accused is that on 14-7-2005 at about 2-30 PM, he committed murder of Chikkudu Narasamma W/o Balaiah, who is accused father’s brother’s wife, (hereinafter referred to as “the deceased”) in the outskirts of Mamillapally village by hacking with an axe. The prosecution story, as unfolded during the trial, which led to the conviction of the appellant/accused is as follows: The deceased and her son, Chikkudu Chinnaiah-P.W.1, own five acres of land and the same was leased out to Saini Narsimha-P.W.2. While P.W.2 was cultivating the land, the deceased who is none other than the accused father’s brother’s wife, went to the field to collect fire hood on 14-7-2005 at 14-30 hours. While collecting fire wood by cutting the branch of a tree located adjacent to their field, the accused went to her and admonished that in spite of giving warning to P.W.2 on 13-7-2005 that he is cultivating land crossing the boundaries and she is also crossing the edge for the purpose of cutting fire-hood and took the axe, which was in the hands of the deceased and hacked on the neck of the deceased. P.Ws.2 and 3 who were at their field witnessed the incident. P.W.2 telephoned to P.W.1 and informed him that the accused killed the deceased with an axe. Thereafter, P.W.1 along with his brother-in-law- S.Nageshwar Rao, his brother-Khasanna and Sarpanch Damodar- P.W.5 went to the fields, and found the deceased dead lying in a pool of blood, having injury on the neck. P.W.5 and others caught hold of the accused and handed over him to the police. On lodging a report covered under Ex.P-1, S.I. of Police, Uppunuthala registered the same as in Cr.No.31/2005 and issued First Information Report covered under Ex.P-6. P.W.8, the then Circle Inspector of Police, Achampet took up investigation on 14-7-2005. He examined P.Ws.1 and 2 at Achampet Police station and recorded their statements. Thereafter, he proceeded to the scene of offence, situated in Mamillapally village and recorded the statements of P.Ws.2 to 5. He conducted inquest over the dead body. Ex.P-3 is the inquest panchanama. He also inspected scene of offence and prepared scene of offence panchanama covered under Ex.P-2. He collected control earth and blood stained earth from the scene of offence covered under M.Os.2 and 3 respectively and also one axe covered under M.O.1. He also seized sari covered under M.O.4 and blouse covered under M.O.5 from the body of the deceased. He sent the dead body for post-mortem examination. P.W.7, who is working as Civil Assistant Surgeon, Civil Hospital, Achampet, on receiving requisition from the police conducted autopsy over the dead body of the deceased and issued a postmortem certificate covered under Ex.P-4 opining that the cause of death was due to profuse hemorrhage and shock as a result of injury to air passages major blood vessles of neck. He also sent the material objects to the Forensic Science Laboratory. On receiving relevant reports and on completion of investigation, P.W.8 filed the charge sheet before the Judicial First Class Magistrate, Atchampet. Learned Magistrate took the charge-sheet on file as PRC No.5/2006 and committed the case to the Court of Sessions Division of Mahabubnagar District as the offence, Sec. 302 IPC, is exclusively triable by Court of Sessions. The learned Sessions Judge took the case on file as SC No.191/2006 and made over to the Special Sessions Judge for trial of cases under SCs and STs (POA) Act-cum-VII Additional District & Sessions Judge, Mahabubnagar for disposal according to law. The learned Sessions Judge on hearing the prosecution and the accused, framed a single charge for the offence punishable under Section 302 IPC against the accused, read over and explained the same to the accused in Telugu, for which the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offences for which he stood charged, the prosecution examined 8 witnesses and proved 6 documents and exhibited 5 material objects. After closure of prosecution side evidence, the accused was examined under Sec. 313 Cr.P.C., and he denied the incriminating material appearing against him in the evidence of prosecution witnesses. On behalf of the defence, no evidence, either oral or documentary, was adduced. The learned Sessions Judge after carefully scanning the evidence adduced by the prosecution found the accused guilty of the offence under Sec.302 IPC and convicted accordingly and sentenced him as aforementioned. Challenging the conviction and sentence, the sole accused preferred the present appeal. Sri B. Parameswara Rao, learned counsel for the appellant/accused contends that P.W.1 is not an eye witness; P.Ws.2 and 3 are planted witnesses and P.Ws.4 and 5 are circumstantial witnesses and if the evidence of P.Ws.2 and 3 is excluded, there is no other evidence to connect the accused with the commission of the offence. When P.Ws.1 and 2 admitted that the incident had happened in the agricultural field, where neighbouring ryots are cultivating their lands, no independent witness was examined except P.W.2 who is an interested witness as he obtained the land of the deceased and P.W.1 on lease, and therefore the evidence of P.W.2 cannot be relied upon to convict the accused. Learned Additional Pubic Prosecutor while supporting the judgment under appeal contended that evidence of P.Ws.2 and 3, who are eye witnesses to the occurrence, is cogent and trustworthy and their evidence cannot be brushed aside on the ground that P.W.2 took the land on lease. In view of the submissions, as referred to above, the point that arises for consideration is: “Whether the conviction and sentence recorded by the trial court against the appellant/accused, for the offence under Section 302 IPC, is sustainable and the prosecution proved its case beyond all reasonable doubt against him.” P.W.1 is not an eye witness to the incident. P.W.2 is the person who obtained land to an extent of five acres owned by P.W. 1 and the deceased on lease. P.W.3 is none other than the wife of P.W.2. They have categorically stated that at about 2-30 PM on the date of incident accused came to the land, which was obtained by P.W.2 on lease from the deceased and P.W.1, and picked up a quarrel with the deceased and hacked on the neck of the deceased with an axe and left the axe at the place of incident. P.W.2, who witnessed the incident, informed the same to P.W.1 by phone and he also informed the same to the Village President Damodar and Kavalikar. P.W.3 stated that when herself and her husband-P.W.2 were in their land, accused came there and picked up a quarrel with the deceased and hacked on the neck of the deceased with an axe. In the cross-examination, she deposed that neighbouring ryots are ploughing their respective lands and they were also ploughing their land. Though they were cross-examined, nothing was elicited in the cross-examination to discredit their testimonies. P.W.4 is the daughter of the deceased. She is not an eye-witness to the incident. She deposed that P.W.2 came to her house and informed about the accused hacking the deceased in the agricultural land. P.W.5 who telephoned to the police about the murder of the deceased, deposed that himself and others chased the accused and caught hold of him at 4 PM and handed over him to the police when they were visiting the village. From the above evidence, it is clearly established by the prosecution that it is the accused who hacked the deceased with an axe possessed by the deceased for cutting fire hood. Now, it is to be seen whether the appellant had intended to cause death of the deceased or knowledge that his act would likely to cause death. P.W.7 is the Doctor who conducted autopsy over the dead body of the deceased found the following injuries: 1. A deep lacerated injury of 3 x 1 x 2 ½ “ size involving (1) Trachea; (2) Larynx; (3) oelophages to cut open, the injury is present in front of neck from right side of neck. Fod particles are visible through ocophages. Cut edges. Major bloods vessels injured. 2. Laceration ½ x ½” present over the chin. 3. Lacerated injury of 3 x 1 x ¼” over right shoulder. She issued postmortem certificate covered under Ex.P-4 opining that the cause of death is profuse hemorrhage and shock as a result of injury to neck. The evidence adduced by the prosecution, it is evident that there was a quarrel between P.W.2 and the accused on the previous day of the occurrence while ploughing the land crossing the edge. When the deceased coming to collect the fire hood by crossing the border, the accused picked up the axe, which was in the hands of the deceased, and hacked her, which shows that the accused had got intention to cause an injury to the deceased as was likely to cause his death, which is an offence falling under Sec. 304 Part I IPC. We accordingly hold that the accused can be convicted for the offence under Sec. 304 Part I IPC. For the aforesaid reasons, the conviction and sentence of imprisonment for life recorded against the appellant/accused for the offence punishable under Sec. 302 IPC in SC No.191/2006 by the Special Sessions Judge-cum-VII Additional District and Sessions Judge, Mahabubnagar dt. 17-4-2007 is set-aside. In stead, the appellant/accused is found guilty for the offence under Sec. 304 Part I IPC and convicted him accordingly and sentence him to undergo rigorous imprisonment for a period of ten (10) years. The Criminal Appeal is partly allowed to the extent indicated above. --------------------- A.GOPAL REDDY,J ------------------ RAJA ELANGO,J DT. 20-10-2010 Kmr