HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2221 of 2004 Dated 9th day of March, 2011 Between: Telagatoti Chinna Guravaiah …Appellant And The State S.H.O., Chinnaganjam P.S., Rep. By the Public Prosecutor, High Court of A.P., Hyderabad. …Respondent The Court made the following: HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2221 of 2004 JUDGMENT: This is an appeal arising out of the conviction and sentence passed in Sessions Case No.238 of 2001 by the IV Additional District and Sessions Judge (Fast Tract Court), Ongole on 06-10-2004. The appellant herein is the accused and he was prosecuted for the offences under Sections 450 and 302 of the Indian Penal Code alleging that he has encroached upon a poramboke land situated in the road margin opposite to the house of P.W.8 and erected a hut and it has become an obstruction for free ingress and egress to the house of P.W.8 and P.W.8 has approached civil Court and the matter is pending before the civil Court. The accused had a fight with the P.W.8 and approached the deceased, who was the V.A.O of B.Block, Chinaganjam, for issuing a ‘B’ form patta for the site in his possession, for which the deceased refused saying that the Law will not permit him. The accused suspected the bona fidees of the deceased and also suspected that he is helping the P.W.8 and hatched up a plan to do away with the life of the deceased and waiting for an opportunity. On 05-01- 2001 while the deceased was returning to his house from Mandal Revenue Office, the accused followed him by arming with a knife used for cutting coconuts. When the deceased went into the house, the accused trespassed into the house and hacked on the neck and shoulder of the deceased with the knife, which is in his possession. The accused also inflicted injuries on his index finger of right hand. P.Ws.1 to 4 who were present at the house witnessed the incident. On hearing the cries of the deceased, P.Ws.5 and 6 and others rushed to the house and on seeing them the accused ran away. Another V.A.O of A Block-P.Rama Rao, on coming to know about the occurrence, rushed to the scene of offence and found the deceased with bleeding injuries and shifted him to Government Hospital, Chirala. On the intimation given by the Government Hospital, Chirala, P.W.11 visited the hospital and recorded the statement of the deceased and basing on the said statement, F.I.R was registered in Crime No.4 of 2001 under Sections 452, 333 and 307 of the Indian Penal Code. P.W.14 took up the investigation and visited the scene of offence and prepared the scene of offence observation panchanama and seized the blood stained and controlled earth, shirt, banian, ball pen, curcheif and chappals from the scene of offence. The deceased, while undergoing treatment in the Government Hosptial, Chirala, succumbed to the injuries on 11-01-2001 at 10.00 a.m. Thereupon, P.W.14 altered the section of law to 302 of the Indian Penal Code and held inquest over the dead body of the deceased in the presence of P.W.10 and one Parvathareddy Ramarao and the dead body was sent for post mortem and P.W.13, who conducted autopsy over the dead body of the deceased, opined that the cause of death was due to Myocardial Infarction precipitated due to injuries. On 15-01-2001, P.W.15 arrested the accused in the presence of P.W.9 and P.W.10 and at the instance of the accused recovered the knife used by the accused in the commission of the offence. The blood stained earth, blood stained clothes, pen, and the knife were sent to R.F.S.L., Vijayawada and the Assistant Director, R.F.S.L., on analysis, gave a report opining that the articles contain blood which is of human origin. Hence the accused was charged for the offence under Sections 450 and 302 of the Indian Penal Code. The learned Sessions Judge has framed the charges for the offences under Sections 449 and 302 of the Indian Penal Code and the accused pleaded not guilty for the said charges. The prosecution in order to establish said charge, examined P.Ws.1 to 15 and marked Exs.P.1 to P.25 and M.Os.1 to 7. The accused during the course of 313 Cr.P.C. examination, got marked photo identity card as Exs.D.1 and D.2. Basing on the said oral and documentary evidence, the learned Sessions Judge, found the accused guilty for the offences under Sections 451 and 304-II of the Indian Penal Code and convicted and sentenced to undergo rigorous imprisonment for five years for the offence under Section 304-II of the Indian Penal Code and suffer rigorous imprisonment for one year and to pay a fine of Rs.200/- for the offence under Section 451 of the Indian Penal Code. Aggrieved by the said conviction, the present appeal is filed. When the matter is coming up for hearing, since two hearings, none represented on behalf of the accused-appellant. Hence the matter is being disposed basing on the material available on record. As per the grounds of appeal, it was pleaded that the dying declaration, which was acted upon by the learned Sessions Judge, does not inspire confidence and without any corroboration to the dying declaration, conviction cannot be recorded. On behalf of the Public Prosecutor, it is argued that the evidence of P.W.1, P.Ws.11 to 15 is sufficient to establish the offences under Sections 451 and 304-II of the Indian Penal Code and the learned Sessions Judge has rightly relied upon the statements of the deceased under Exs.P.13 and P.17 and convicted the accused. According to the prosecution, the accused raised a hut in the road margin, which is a Government poramboke, opposite to the house of P.W.8 and for which P.W.8 objected the same and filed a civil Suit. The accused approached the deceased for issuing a ‘B’ form patta, for which he refused to issue the same, on the ground that it is not permissible under Law. Thereupon the accused developed grudge over the deceased and hatched a plan to do away with his life. In order to establish the said factum of the accused raising hut, the prosecution has examined P.W.8-Valiveti Subbarayudu and according to him he is having Ac.0.05 cents of site at Chinaganjam abutting the road leading to Ambedkar statue. He purchased the said site twenty years ago from Kummari people under registered document and the accused raised a hut in between his site and the road margin and he requested the accused to remove the hut and vacate the site. The accused refused to do the same and got filed a suit against him (P.W.8) and the gram panchayat. With regard to the accused approaching the deceased for issuing ‘B’ form patta, the deceased himself has stated about the same in the statement recorded by P.W.11 under Ex.P.13. Therefore, from the above, it is established that the accused has bore grudge against the deceased as he refused to issue the ‘B’ form for the site occupied by him. According to the prosecution, on 05-01-2001 when the deceased was returning to his house from Mandal Revenue Office, the accused followed him and when the deceased entered into his house, the accused trespassed and hacked him on the neck and shoulder of the deceased with the knife, which he brought along with him. The lower Court in order to establish the offences under Sections 451 and 304-II of the Indian Penal Code, has relied upon the statement of the deceased-Ex.P.13 given to P.W.11 and another statement-Ex.P.17 recorded under Section 161 Cr.P.C treating them as dying declarations. To establish the factum of recording Ex.P.13, P.W.11-A.Somaraju, Head Constable 1293 of Chirala I Town P.S has stated that on 05-01-2011 he received intimation from Government Hospital, Chirala, regarding admission of Garnepudi Ramachandrarao with injuries and immediately proceeded to Government Hospital, Chirala and recorded the statement of the deceased and obtained the L.T.I of the deceased on the statement, as he sustained injury to his right hand and Ex.P.13 is the statement recorded by him. The duty Doctor, who was present at the time of recording the statement of the deceased, endorsed with regard to the condition of the deceased and the P.W.11 was not cross- examined. On the other hand, reported no cross-examination. Therefore, the evidence of P.W.11 stood unrebutted. Therefore, the factum of P.W.11 recording the statement-Ex.P.13 stood unrebutted. In Ex.P.13 the deceased has categorically stated that on 05-01- 2001 at about 7.30 p.m., he was coming from Mandal Revenue Office and while entering into the house, the son’s son-in-law of Pottigadu entered into his house with a coconut chopping knife by saying “I will see your end if you did not support me” hacked on his right shoulder, on his right side throat to shoulder, on left ear to throat, on his right hand index finger and stabbed with a view to kill him. When he raised cries, his wife and neighbours also came there. The second V.A.O-Sri P.Rama Rao has came there and brought a jeep and took him to Government Hospital, Chirala. P.W.11 has made an endorsement on the said statement that he has recorded the statement and readover to the deponent and admitted by him to the correct. Dr.M.Venkateswarlu has also certified that while recording the statement, the patient is conscious, coherent, oriented, obeying oral commands. Therefore the factum of recording the statement of the deceased by P.W.11 was established. Since the deceased is no more, the said statement can be treated as a dying declaration as it is disclosing the circumstances, which lead to his cause of death. With regard to identity of the accused in Ex.P.13, the deceased has categorically stated that the accused is son’s son-in-law of Pottigada. In the charge sheet, the accused is described as Thelagathoti Chinna Guravaiah @ Pottigadi Koduku Alludu and the accused has got marked Exs.D.1 and D.2 in his 313 Cr.P.C. examination. Ex.D.1 is the voter identity card of T.Guravaiah. The learned Sessions Judge has also considered whether the said Guravaiah and the Pottigadi Koduku Alludu is one and the same and found that the culprit named in Ex.P.13 is the accused and there is no material on record to disbelieve the said finding of the learned Sessions Judge. As observed by the lower Court, apart from the said dying declaration-Ex.P.13, the statement recorded under Section 161 Cr.P.C-Ex.P.17 is also available to establish the guilt of the accused. More-over both the statements of the deceased recorded by the P.W.11 and under Section 161 Cr.P.C are in conformity with each other. Therefore, they establish the involvement of the accused in the commission of the offence. With regard to the injuries said to have been sustained by the deceased, the prosecution has examined P.W.12-Civil Asst. Surgeon, Government Hospital, Chirala, who has stated that the deceased was found with following injuries. 1. Cut throat laceration shape edges over the crecoid level, bleeding, trachea opened out, of size 10 x 2 cms x Trachea deep. 2. Laceration sharp edges over the supra clavicular region, bleeding of size 10 x 4 cms x clavicle fractured ends opened. 3. A lacerated injury, over the right shoulder bleeding, semi-circular shape of size 10 x 4 cms. 4. Two laceration sharp edges, elliptical, vertical one by one lateral aspect of the neck, below the left mandible bleeding of size (a) 3 x ½ cm x skin deep (b) 4 x ½ cm x skin deep. case referred to G.G.H., Guntur. P.W.13 is the Doctor who conducted post mortem and he also observed the said injuries on the dead body of the deceased. Therefore, the medical evidence also supporting the injuries alleged to have been caused by the accused and as per the Doctor-P.W.13, the death was caused due to Myocardial Infarction precipitated due to injuries. Thus the death of the deceased was caused due to the injuries caused by the accused. Therefore, the lower Court has rightly found the accused guilty for the offence under Sections 451 and 304-II of the Indian Penal Code and the said finding does not warrant any interference by this Court. Learned Sessions Judge also rightly imposed the sentence proportionate to the gravity of the offence and the same also does not warrant any interference by this Court. In the result, the Criminal Appeal is dismissed by confirming the conviction and sentence passed by the IV Addl. District and Sessions Judge (Fast Track Court), Ongole in Sessions Case No.238 of 2001 on 06-10-2004. __________________________ JUSTICE P. DURGA PRASAD 09-03-2011 VJL