THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1756 of 2006 25.2.2010 Between: Keta Satyavathi, W/o.Benjamin And others … Appellants/accused AND The State, rep. by SHO, Tadepalligudem Rural P.S., through its Public Prosecutor, High Court of Andhra Pradesh … Respondent/Complainant THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1756 of 2006 JUDGMENT: (per Hon’ble Sri Justice V.V.S.RAO) The appellants are accused Nos.1 to 4 in Sessions Case No.155 of 2006 on the file of the Court of Principal Sessions Judge, Eluru, West Godavari District. Accused Nos.1 and 2 were tried for an offence punishable under Section 302 of Indian Penal Code (IPC) and accused Nos.3 and 4 were tried under Section 302 read with 114 and 34 of IPC. By impugned judgment dated 07.12.2006, learned Sessions Judge held accused Nos.1 to 4 guilty of the charges as framed and sentenced them each with life imprisonment and pay a fine of Rs.1,000/-, in default of payment of fine, to suffer simple imprisonment for six months. The Inspector of Police, Tadepalligudem Circle, instituted charge sheet making following allegations. Accused No.1 and deceased (Deyyala Lakshmana Rao) had illicit relationship for about 15 years. Accused Nos.2 to 4 are brothers of accused No.1. Sometime prior to the date of offence, when accused No.1 wanted to leave to Kuwait, deceased objected. He also attacked her causing grievous injuries with a knife. A case was registered under Section 307 of IPC against the deceased, committed to the Court of Session and was numbered as S.C.No.289 of 2000 was committed to the Court Assistant Sessions Judge, Tadepalligudem. The village elders compromised the matter between assailant and attacked. They were advised not to see each other and put an end to their illegal relationship. It is further case of prosecution that on 04.3.2005, at about 7.00 pm, deceased went to the house of accused No.1 with an intention to have sex. Accused No.1 objected and sent for accused Nos.2 to 4. On seeing them, deceased tried to escaped and hid under the roof of nearby house. Accused Nos.2 to 4 traced and dragged him. Accused No.2 picked up a wooden stick and gave severe blows and accused No.1 brought out a sickle like knife and hacked deceased, who died instantaneously. P.W.2 informed P.W.1, brother of deceased, who went to the house of Sarpanch-P.W.17. Both of them went to scene of offence and saw the dead body. On the intervening night of 4/5.3.2005 P.W.1 and P.W.17 went to Rural P.S. Tadepalligudem and gave Ex.P1 report. Based on the same, Sub-Inspector of Police (L.W.27) registered a case in crime No.32 of 2005 and issued Ex.P26 First Information Report to all concerned. The Inspector of Police – P.W.20, took up investigation. He visited the scene of offence, got prepared observation report – Ex.P22, rough sketch of scene of offence – Ex.P25 and conducted inquest under Ex.P23 during which he examined P.Ws.1 to 12 and recorded their statements. The dead body was sent to local hospital for post-mortem examination. P.W.16 Civil Assistant Surgeon, conducted autopsy and issued Ex.P21 report opining that dead was caused due to shock and hemorrhage due to cut injury of trachea and cut injury of great vessels of neck. About a week after the date of offence, P.W.20 arrested accused Nos.1 to 4 and recorded their confessional statements, based on which he seized crime weapons – M.Os.1 and 2. After completing investigation, he filed the charge sheet. The Court of Additional Judicial Magistrate of First Class, Tadepalligudem, took cognizance of case as P.R.C.No.48 of 2005. After conducting enquiry, the case was committed to Principal Sessions Judge, Eluru as S.C.No.155 of 2006. During the trial, prosecution examined as many as 20 witnesses and marked Exs.P1 to P26 and M.Os.1 to 7. In this appeal, learned Senior Counsel for appellants submits that involvement of accused Nos.2 to 4 in the crime is not proved by the prosecution and, therefore, they cannot be convicted under Section 302 read with 114 and 34 of IPC. He nextly contends that accused No.1 exercised right of private defence when the deceased attacked her with an intention to have lust with her and, therefore, the charge as laid is not proved. Per contra, learned Public Prosecutor relies on the evidence of P.Ws.3, 10 and 17 as well as medical evidence in support of the contention that the prosecution has proved the charge as framed. After the trial, the Court below examined accused No.1 under Section 313 of Code of Criminal Procedure, 1973 (Cr.PC), accused No.1 filed sworn statement. In the said statement, her version is as follows. On 4.3.2005 night at about 8.00 pm, while I was alone in my house, Deyyala Lakshmanarao came to my house in a drunken state and entered into my room and abused me ‘if you are trying to escape, I will hack you and so saying closed the doors, due to fear I pushed him aside and he fell down and his head fell on the door-way bar and again he got up threw a knife against me and I just escaped and again he tried to take the knife, due to fear that he would kill me, I took the knife and forcibly thrown on him and he received knife injury, came out from the room and fell down. Being afraid, I went to the house of my village President and while narrating the incident, Yesobu brother of Lakshmanarao came there and I left the place. Subsequently police arrested me. A2, A3 and A4 are no way connected with this incident. A2, A3 and A4 were not present at the time of incident. The incident occurred only to protect myself when Deyyala Lakshmanarao tried to kill me. In view of her statement, the two points that fall for consideration are: (1) involvement of accused Nos.2 to 4 in commission of crime, and (2) extent of culpable conduct of accused No.1 in the death of Deyyala Lakshmana Rao. Insofar as involvement of accused Nos.2 to 4 is concerned, though prosecution examined quite a number of witnesses, P.Ws.2, 4 to 9, 11 and 12 did not fully support the case of prosecution and they were declared hostile. Therefore, the prosecution case now rests on the evidence of P.Ws.3 and 10. Before noticing their evidence and the evidence of other witnesses, we may refer to an important aspect pointed out by Senior Counsel. The incident occurred on 04.3.2005 at 7.00 pm. The scene of crime is indisputably the residence of accused No.1. The brother of deceased – P.W.1, went to the house of Sarpanch-P.W.17 and both of them went to Police Station and gave Ex.P1 report to L.W.27. It is very curious that in Ex.P1, P.W.1 who admittedly drafted the same with the help of P.W.17 does not mention nor refer to involvement of accused Nos.2 to 4 on the night of 04.3.2005 in commission of crime. He only reported that when he was having dinner, P.W.2 came and informed that he heard shouting of deceased due to beating by somebody near the house to accused No.1, that he went to the house of P.W.17 and having not found him there, he came back to his house, when P.W.6 informed about the death of deceased due to stabbing by accused No.1. Ex.P1 does not even whisper about the presence of accused Nos.2 to 4 at that hour at the house of accused No.1 nor speaks of any mention by either P.W.2 or P.W.6. According to P.W.20 Investigating Officer, he conducted inquest at 8.30 am on 05.3.2005 and examined 11 witnesses including P.Ws.1 and 3 to 7. Even on the next day, these persons who were examined during the inquest did not allege the presence or involvement of accused Nos.2 to 4 at the time of commission of crime at the house of accused No.1. We may now – with this background – test the evidence of P.Ws.3 and 10. P.W.3 is an elderly person of Venkataraopalem. He deposed about the illegal intimacy between the deceased and accused No.1. The circumstances and the incidents that led to institution of S.C.No.289 of 2000 under Section 307 of IPC against the deceased and goes of stating that one year six months ago at 7.30 pm when he was setting in front of his house, deceased came running and stood by his side. All the accused came there. The deceased asked for pardon with folded hands and P.W.3 also advised the accused to excuse the deceased. But accused No.4 pushed deceased and the latter fell down. Accused No.2 having a big stick hit on the head resulting in bleeding injury to deceased. P.W.3 objected. Then all the accused dragged deceased towards backyard of the house of accused No.1 and somebody brought the knife and handed over to accused No.1, who hacked him on the chest with the knife. He also deposed that he was not in talking terms with one of the accused even by the date of incident. P.W.4 is daughter of P.W.3. She turned hostile and she deposed that on the date of incident between 7.00 and 7.30 pm, she heard the deceased crying that someone is killing him. She also deposed that her father-in-law was not in the house at that time. Not only the evidence of P.W.4, even the evidence of P.W.20 Investigating Officer does not support P.W.3. P.W.20 admitted that what deposed by P.W.3 in the Court does not reveal in his statement under Section 161 Cr.PC. Insofar as the overt acts attributed to accused No.1 is concerned, the evidence of P.W.3 appears to be consistent. P.W.10 is a mason. On the day of the incident, admittedly he had gone to attend mason work at Sivalayam of Veerampalem. He deposed that while returning from the work, at the house of P.W.3 he saw accused No.2 administering a blow with a stick on the head of deceased. The accused dragging the deceased into the house of accused No.1 and accused No.1 bringing a knife and inflicting injuries on throat and chest of deceased. The veracity of this witness is not supported even by P.W.20, who deposed that P.W.10 did not inform in his statement under Section 161 Cr.PC about place of occurrence. Even least importance is given to P.W.20, a mere reading of version deposed by P.W.10, to our mind looks to be very artificial. The evidence of P.Ws.3, 10 and 20 together with Exs.P1 and P23 compels us to draw the following inferences. Either immediately after crime or 12 hours thereafter, at the time of inquest no witness including P.W.1 brother of deceased suggested or suspected or saw accused Nos.2 to 4 present at the scene of offence. The version of P.W.3 in his evidence is not only inconsistent with his statement under Section 161 of Cr.PC recorded by P.W.20 and admittedly P.W.3 has something to sort out with one of the accused. The non-mentioning of names of accused Nos.2 to 3 in Ex.P1 by P.W.1 would suggest that P.W.3 was only making an attempt to improve his version as admitted even by the Investigating Officer. Therefore, we are of considered opinion that it is not safe to record a finding of guilt as against accused Nos.2 to 4 based on the very inconsistent and shaky evidence of P.W.3 and P.W.10 and the prosecution to that extent has not proved the case. Learned Public Prosecutor however relies on the medical evidence and submits that the allegation against accused No.2 that he gave a blow with heavy stick on the head of deceased would suggest culpability of accused No.2. We are not able to accept the suggestion. As per Ex.P1 Post-mortem report, injury Nos.1, 3, 4 and 5 are caused with a sharp instrument whereas injury No.2 is a contusion of 3 X 4 cms. It is highly improbable that a blow with a stick could have caused such an injury. Therefore the submission of learned Public Prosecutor is misconceived. His submission that evidence of P.W.3 is consistent can also not acceptable for the reasons already mentioned supra. We may now take up the extent of involvement and role played by accused No.1 in commission of crime. The following cannot be disputed. Accused No.1 was widow in her late 40s’ with three children. For over a decade and half, she had befriended by deceased Lakshmana Rao. They had illicit intimacy. Fifteen years after maintaining such intimacy disputes arose when she wanted to go to Dubai, which ultimated culminated deceased Lakshmana Rao being accused in S.C.No.289 of 2000 under Section 307 of IPC. In front of Village elders, the couple agreed not to see each other and put an end to their relationship. Even in her statement before trial Judge under Section 313 Cr.PC she admits about this. Her version is that when deceased came in a drunken state and threatened to hack her, out of fear she pushed him down. Not only this, when he again get up and thrown a knife she retaliated and gave two knife blows one after the other. If she was pleading a right of private defence, the burden shifts to accused No.1 to prove two things. First that situation warrants exercised a right of private defence and second that while exercising such right there was no excess on her part. No attempt is made to discharge the burden on the first aspect or on the second aspect. However before us, it is suggested by learned Senior Counsel that when the deceased came to the house of accused No.1, she was alone in the house and tried to escape and in vain. Ultimately she had to use a knife to protect herself by grievous injuries to the deceased. For reasons more than one, we are inclined to accept the submission of Senior Counsel. In our opinion, the culpable conduct on the part of accused No.1 is certainly falls within Exception-1 read with Exception-IV to Section 300 of IPC. It is a justifiable surmise that when a man approaches unwilling woman for lust, it is only man who would be rather powerful than woman and if the woman who lost self-control without any premeditation inflicts fatal injury, it is certainly a case of culpable homicide but not amounting to murder. In this case, though accused No.1 had an opportunity to escape after pushing down the deceased, she did not do so and she inflicted two fatal injuries one after the other, as seen from Ex.P21 Post-mortem report. Therefore, though we cannot sustain conviction under Section 302 of IPC, we convict accused No.1 under Section 304 Part-I of IPC. In the result, we allow the appeal in part, set aside the judgment of conviction and sentence of appellant Nos.2 to 4/accused Nos.2 to 4 in S.C.No.155 of 2006 dated 07.12.2006 on the file of the Court of the Principal Sessions Judge, Eluru. We direct the release of the appellant Nos.2 to 4/accused Nos.2 to 4 forthwith. Insofar as appellant No.1/accused No.1 is concerned, we alter conviction from Section 302 IPC to Section 304 Part-I IPC and alter sentence from imprisonment for life to rigorous imprisonment for ten years. _______________ (V.V.S.RAO, J) _____________________________ (SAMUDRALA GOVINDARAJULU, J) 25.02.2010 YS