THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.Nos. 1228 and 1285 of 2007 Dt. 7-6-2011 Cholluri Shankaraiah …Appellant ..Appellants/A-1,A-2 & A-5 V. The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., at Hyderabad. ..Respondent ..Respondent/complainant The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.Nos. 1228 and 1285 of 2007 COMMON JUDGMENT (per the Honourable Justice A.GOPAL REDDY) The sole accused who was tried and convicted for an offence punishable under Section 302 IPC by the judgment dt. 25-7-2007 passed in SC No.48/2007 on the file of III Additional Sessions Judge, Karimnagar, for causing the death of Cholluri Vinoda (hereinafter referred to as “the deceased”) on 15-8-2006 at about 4-30 PM at Manchirami village, and sentenced to suffer imprisonment for life and to pay a fine of Rs.1000/-, in default to suffer simple imprisonment for a period of three months, filed these two appeals. Crl.A.No.1228/2007 is filed by the advocate, Sri E.Vishwa Preasad, engaged by the sole accused, whereas Crl.A.No.1285/2007 by Mrs. Shanthi Nellam, Advocate, appointed by the Legal Services Authority. The prosecution story, as unfolded during the trial, which led to the conviction of the appellant/sole accused is as follows: The accused and the deceased are the husband and the wife respectively. Their marriage took place 14 years prior to the death of the deceased and were blessed with two daughters and one son. To survive his livelihood, the accused shifted his family to Hyderabad. The accused was employed as a Watchman. The deceased joined as Sweeper in a hostel. The accused suspected the character of the deceased and used to harass her and beat her. The accused harassed the deceased physically and mentally and attempted to kill her by throttling. Thereupon, the deceased went to the house of P.W.1 and staying with P.W.1 at Polampalli. One month thereafter, the accused came to the house of P.W.1 along with P.W.5 and requested P.W.1 to send the deceased and tendered apology. At their request, P.W.1 sent the deceased along with the accused. Four days prior to the incident, the accused, the deceased and their children went to Manchirami village to attend the annual ceremony of the mother of the accused. After attending the annual death ceremony on 15-8-2006 at about 4-30 PM the accused took the axe and went to cut the firewood, and thereafter attacked the deceased with the same axe during the course of wordy quarrel between them. P.W.2 and 3 and co-sister of the deceaed-P.W.6 witnessed the incident. On receipt of information from P.W.5, P.W.1 and his wife rushed to Manchirami village at about 12-30 midnight. On the next day, P.W.1 lodged a complaint to the police covered under Ex.P-1. On receiving a complaint from P.W.1, P.W.11-Sub Inspector of Police, Sultanabad registered the same as in Cr.No.128/2006 under section 302 IPC and issued FIR covered under Ex.P-17 to all concerned officers. He examined P.W.1 and recorded his statement. On receiving information form P.W.11 about registration of Cr.No.128/2006, he took up investigation. He along with P.W. 1 rushed to the Manchirami village and visited the scene of offence. In the presence of P.W.8, L.Ws.15 and 16, P.W.12 conducted inquest over the dead body of the deceased. Ex.P-11 is the inquest panchanama. During the course of inquest, he seized blood stained jacket and saree of the deceased covered under M.Os.2 and 3. He got the dead body of the deceased photographed with the help of P.W.7. Exs.P-3 to P-9 are the photographs and Ex.P-10 are their negatives. He examined P.Ws.2, 3, 6, 7 and L.W.2, 5 and 8 and recorded their statements. He also seized blood stained and controlled earth covered under M.Os.4 and 5. He prepared rough sketch. Exs.P-12 and 13 are the crime details form and rough sketch respectively. On 23-8-2006 at 12 noon, the accused voluntarily surrendered before him in the police station and in the presence of P.W.9 and L.W.18 he confessed about the commission of offence. In pursuance of the confession, he seized axe stained with blood covered under M.O.1. After conducting inquest, he sent the dead body to the Government Hospital, Sultanabad for postmortem. P.W.10-the then Civil Assistant Surgeon, Government Civil Hospital, Sultanabad conducted postmortem examination over the body of the deceased and opined that the deceased died due to shock and hemorrhage due to injury to major blood vessels ie., carotid and jugular. Ex.P-16 is the postmortem report. On receiving relevant reports and on completion of investigation, P.W.12 filed the charge sheet before the Additional Judicial First Class Magistrate, Sulthanabad. Learned Magistrate took the charge-sheet on file as PRC 38/2006 and committed the case to the Court of Sessions, Karimnagar Division, 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.48/2007 and made over to the court of III Additional District & Sessions Judge, Karimnagar, for disposal according to law. The learned Session 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 12 witnesses and proved 20 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 the prosecution witnesses. On behalf of the defence, no witness was examined but relevant portion in Sec. 161 Cr.P.C., statement of P.W.2 was marked as D-1. The learned Sessions Judge after carefully scanning the evidence, oral and documentary, adduced by the prosecution as well as the accused, found the accused guilty of the offence punishable under Sec. 302 IPC and convicted him accordingly and sentenced to imprisonment as aforementioned. Challenging the conviction and sentence, the sole accused preferred the present appeals. Smt. Shanthi Neelam, learned counsel for the appellant- accused, who has taken us to the entire material on record, contends that there is a delay of 14 hours in lodging the complaint and such delay would affect the case of the prosecution, and it is unsafe to rely on Ex.P-1. She further contends that P.Ws.2 and 3 are child witnesses and were tutored by their grand father-P.W.1 and P.Ws.5 and 6 and therefore their evidence cannot be taken into consideration to come to a conclusion that the accused committed the murder of the deceased. According to the prosecution, P.W.6 also witnessed the incident but she has not supported the case of the prosecution. Though P.W.6 learnt about the death of the deceased, and went to the house and saw the dead body of the deceased, they have not lodged any report with the police until the father of the deceased came to the police station and lodged a complaint. If the evidence of P.Ws.1,2,3,5 and 6 is excluded, there is no other evidence to connect the accused with the crime. Mere recovery of M.O.1 pursuant to the confessional statement is not sufficient to prove the guilt of the accused. She further contended that even according to the evidence of P.W.2 there ensued a quarrel between the accused and the deceased prior to the incident and in a fit of anger, the accused might have caused death of the deceased with the same weapon which was using for cutting firewood at the relevant point of time and therefore, the appellant/accused is entitled to lesser punishment particularly under Sec. 304 Part-I IPC. While refuting the contentions advanced by the learned Counsel for the appellant/accused, the Addl. Public Prosecutor contends that the evidence of child witnesses ie., P.Ws.2 and 3 was corroborated with the evidence of P.Ws.1,5 and 6, who categorically stated that they all went to attend the annual death ceremony of the mother of the accused. No complaint has been lodged by the villagers and P.W.1 who went to the village on information given by P.W.5 at 12-30 midnight, lodged a complaint on the next day at 6-10 AM and hence there is no delay in lodging the report. 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/sole accused is sustainable and the prosecution proved its case beyond all reasonable doubt against him?” According to the prosecution, the accused married the deceased 14 years back prior to the death of the deceased and prior to the death of the deceased, the accused along with the deceased and their children went to Manchirami village to attend the annual death ceremony of the mother of the accused, where the accused axed the deceased. P.W.1, who is the father of the deceased and who sets the criminal law into motion by lodging Ex.P-1, stated that the accused was addicted to drinking and used to beat the deceased. He used to advise his daughter to live with her husband and used to send back whenever the deceased came to his house. The deceased told him that about three months prior to the incident, the accused came in a drunken state and attempted to kill her by throttling stating that she had illicit intimacy with others. Thereupon his daughter came to his house and stayed with him. One month thereafter, the accused along with P.W.5 came to his house and requested him to send his daughter by tendering apology. On their request, he sent his daughter along with the accused. Four days prior to the incident, the accused and the deceased and their children went to Manchirami village to attend the annual death ceremony of the mother of the accused. On the date of incident, he was informed by P.W.5 that the accused killed his daughter. On receiving such information, he rushed to the Manchirami village and reached there at about 12-30 midnight. On the next day morning, he went to the police station and lodged a report covered under Ex.P.1, and found the dead body of his daughter with cut injuries on the neck and left side of the face. P.W.2 is the daughter of the deceased and she is aged about 12 years. She categorically stated that she is studying 8th Class at Polampalli. About 3 or 4 days prior to the incident, himself, the deceased and accused, her brother and sister came to Manchirami village in connection with the annual death ceremony of my paternal grand mother. On 15-8-2006 at about 4-30 PM her father took the axe from Swarupa and attacked her mother on the neck, on the left side of the face and on right hand and caused bleeding injuries. In the cross- examination, she categorically stated that her father axed her mother thrice. The same is the evidence of P.W.3 who is aged about 7 years. Learned Sessions Judge after satisfying the answers given by P.Ws.2 and 3 found that they are competent to give evidence and proceeded to record their evidence. P.W.4 speaks about the deceased, accused, P.Ws.2 and 3 going to Machirami village 3 or 4 days prior to the incident to attend the annual death ceremony of the mother of the accused. He further sated that he got the accused employed as a watchman with Ex-MLA Nagender. He was declared hostile by the prosecution. But in the cross-examination, he testified that he was present at the time of inquest and police examined him. He stated before the police that the accused had a suspicion against his wife about her character and he had also a suspicion that the deceased was having illegal intimacy with him i.e, P.W.4. P.W.5, who is the elder brother of P.W.1, stated that the accused, the deceased and their children came to Machirami village to attend the annual death ceremony of the mother of the accused. He further deposed that the accused came to his village and requested him to settle the dispute between him and the deceased and at the request of the accused, himself and the accused went to P.W.1 and requested him (P.W.1) to send the deceased to the house of the accused. P.W.6, who is the wife of the brother of the accused, was declared hostile, stated that a day prior to the annual death ceremony of her mother-in-law, the accused, the deceased and their children came to Manchirami village. On that day, when she was in the field, she learnt about the death of the deceased and returned to the house and saw the dead body of the deceased. P.W.9 is the witness to the confessional statement made by the accused. He stated that the accused led them to his house at Machirami village and brought the axe concealed underneath the table in a room and handed over the same to the police and the same was seized under a cover of panchanama-Ex.P-15. P.W.10 is the Doctor who conducted autopsy over the dead body of the deceased. He found the following injuries: 1. Three cut wounds on the let side neck. i) 2 x 2 cm deep. ii) 3 x 3 cm deep. iii) 5 x 5 cm deep. 2. Fracture mandible at the junction of middle 1/3 rd and lateral 2/3rd. 3. Small cut wound 1 x 1 cm on the right side neck. 4. Small cut wound 0.5 x 0.5 cm on the left clavicle. 5. Lacerated wound 8 x 1 cm on the left palm with fracture left wrist. M.O.1-axe was sent to Forensic Science Laboratory along with other material objects. Ex.P-20 is the report of the Analyst. As per Ex.P-20, the Analyst found that the origin and the group of blood on M.O.1-axe was matched with the blood stains found on the saree of the deceased. The blood group of bloodstains on M.O.1 and the saree is “A” group. All the circumstances clinchingly proved that it is the appellant alone who is responsible for the death of the deceased. From the above evidence, the prosecution successfully demonstrated that before accused attacking the deceased, there occurred a wordy quarrel between them and the accused caused the death of the deceased with the same axe which was used to cut the firewood. As per the evidence of P.W.10, there were three cut wounds on the neck of the deceased. P.W.10 categorically deposed that the injuries might have been caused with sharp weapon like M.O.1-axe. In view of the evidence of P.W.10 coupled with the postmortem certificate covered under Ex.P-16, it is clear that the accused axed the deceased more than one blow, and therefore he is not entitled to any lesser punishment, and therefore the request of the learned counsel for the appellant/accused that the accused may be convicted for the offence under Sec. 304 Part I cannot be accepted. The trial court, on analyzing the entire evidence, oral or documentary on record, has rightly concluded that the prosecution has established the guilt of the appellant/accused beyond reasonable doubt and rightly convicted him for the offence under Sec. 302 IPC. Therefore, we find no ground to interfere with the conviction and sentence recorded against the appellant/sole accused by the trial court through the impugned judgment. In the result, both the Criminal Appeals are dismissed by confirming the judgment of the trial court. --------------------- A.GOPAL REDDY,J ------------------ RAJA ELANGO,J DT. 7-6-2011 Kmr