HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.289 OF 2007 Dated:06-07-2010 BETWEEN: Mudupu Mohana Chary @ Mohan …Appellant AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.289 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) This is an appeal by A.1 challenging the judgment of VI Additional Sessions Judge (III Fast Track Court), Warangal, dated 25.01.2007, whereby he was convicted for the offence under Section 302 I.P.C. and was sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/-, in default, to suffer simple imprisonment for a period of six months. Initially, he was charged for the offence under Section 302 r/w 34 I.P.C. along with A.2. However, the case against A.2 was abated as he was murdered during the course of trial. 2. The gravamen of the charge against the accused is that on 13.8.2004 the appellant-A.1 along with A.2 in furtherance of their common intention caused the death of Mohammed Liyuaqat Ali (hereinafter referred to as ‘the deceased’) at Korivi Village by stabbing him with a knife. 3. The case of the prosecution as narrated during the course of trial, in brief, is as under: P.W.1 is the wife, P.W.2 is the daughter, P.Ws.3 and 4 are the brothers and P.Ws.5 to 8 are the neighbours of the deceased. On 13.8.2004 at about 3.30 a.m. as somebody knocked the door, the deceased enquired as to who it was, then he was informed that he is A.1 and wanted to talk and asked him to open the door. On that, the deceased after looking outside through the window opened the doors of the house and went outside of the house. In the meanwhile, P.Ws.1 and 2 also woke up and heard some quarreling and went outside and saw the deceased fallen on the ground and A.1 was beating him on the neck with an axe. On seeing the same, P.W.1 questioned A.1 as to why he was beating her husband for which, A.1 replied that the deceased got one Baje Rajender and Kaniganti Madhu arrested. Then A.2 dragged the deceased upto electric pole and stabbed him with a knife and thereafter by dropping the knife at the scene, they fled away. Later, on hearing the cries, P.Ws.5 to 8 rushed to the scene and P.Ws.7 and 8 saw the accused going on motorcycle. On enquiry, P.W.1 informed about the said incident. Then they shifted the deceased to the hospital and P.W.1 lodged Ex.P.1 report with the police on 13.8.2004 at about 9.30 a.m. On receipt of Ex.P.1 report, P.W.15-Sub-Inspector of Police registered a case in Crime No.108 of 2004 and issued Ex.P.9 F.I.R. P.W.16-Circle Inspector of Police, Mahabubabad took over further investigation, visited the Government Area Hospital, recorded the statements of P.Ws.1 to 6, held inquest over the dead body of deceased in the presence of P.W.9 and prepared inquest report under Ex.P.2. Then he visited the scene of offence, held panchanama under Ex.P.3, seized two letters-Exs.P.4 and P.5 and a knife-M.O.1, prepared a rough sketch of scene of offence under Ex.P.10 and sent the dead body for post-mortem examination. On 13.8.2004 P.W.13, the Civil Assistant Surgeon held autopsy over the dead body of the deceased and opined that the cause of death was due to neurogenic shock and hemorrhagic shock. To that effect he issued Ex.P.8-port- mortem report. On 6.9.2004 P.W.16 arrested A.1 and in pursuance of his confessional statement, M.O.4 axe was recovered under Ex.P.6 panchanama. He seized the motorcycle-M.O.5 under Ex.P.11 panchanama and sent all the material objects to Forensic Science Laboratory. After receipt of the relevant reports and completion of investigation, he laid the charge sheet against the accused. 4. To bring home the guilt of the accused, the prosecution examined P.Ws.1 to 16 and proved 12 documents under Exs.P.1 to P.12 and exhibited the case properties-M.Os.1 to 7. Through the Court, C.W.1 was examined and Ex.C.1 was marked. The appellant was examined under Section 313 Cr.P.C. on the incriminating evidence appearing in the prosecution witnesses. He denied the same, but not led any evidence. 5. The learned Sessions Judge upon consideration of evidence on record found the appellant guilty for the offence punishable under Section 302 I.P.C. and accordingly convicted and sentenced him to undergo imprisonment as aforementioned. 6. Sri C.Padmanabha Reddy, learned senior counsel for the appellant-A.1 contended that the incident had happened at 3.30 a.m. and that P.Ws.1 and 2, who are projected as eyewitnesses, have not witnessed the occurrence since there was no electricity connection to the C.P.I. Party Office, wherein the deceased, P.Ws.1 and 2 were residing. Though the incident had happened at 3.30 a.m., Ex.P.1 report was given at 9.30 a.m., and thus there is a delay of 6 hours in lodging the report. In Ex.P.1 report there is no reference to the switching on lights by the deceased when the accused called him out and that there is also no reference with regard to the participation of A.2 in the commission of offence. C.W.1, who was examined by the Court deposed that there was no electricity connection to the C.P.I. Office at Korivi, which was disconnected for non-payment of charges. P.W.4 stated that the deceased along with P.Ws.1 and 2 was residing at the party office of C.P.I. P.Ws.1 and 2 omitted to state either in Ex.P.1 or in their earliest statement about the deceased switching on the light while opening the door, which has been elicited from the evidence of P.W.16. Further P.W.16 admitted that he visited the house of A.1 along with dog squad and that the dog squad led them to A.1’s house, but he contended that the prosecution has not explained the reason as to who the dog squad was pressed into service when there are alleged eyewitnesses to the incident. The manner in which the alleged confessional statement of the accused is recorded by the learned Sessions Judge while examining P.W.2 is fatal to the case of the prosecution. No bloodstains were detected on the axe, which was allegedly seized pursuant to the confessional statement made by the accused. Further the two threatening letters-Exs.P.4 and 5 which were recovered at the scene of offence clearly discloses that the deceased was cautioned by the extremist organization-Janashakti Naxals and therefore, they might have killed the deceased. The appellant has been falsely implicated after due deliberations due to which, there occurred the delay in lodging the report-Ex.P.1 and registering the crime. In view of these discrepancies, it is unsafe to convict the appellant on the evidence brought on record. 7. Per contra, learned Public Prosecutor while sustaining the conviction and sentence would contend that the previous dispute between the appellant-A.1 and the deceased is the motive for the appellant to kill the deceased. P.Ws.1 and 2 being the wife and daughter are the natural eyewitness to the incident and their evidence has also been corroborated with the evidence of P.Ws.7 and 8 and the medical evidence. Even though bloodstains were not detected on the axe and though the recovery of axe is disbelieved, still the evidence of eyewitnesses is sufficient to convict the appellant and therefore, the impugned judgment needs no interference by this Court. 8. P.W.1 is the wife and P.W.2 is the daughter of the deceased and they are admittedly staying in the C.P.I. office which is having two portions. P.W.1 deposed that on the date of incident, at about 3.00 or 3.30 a.m., somebody knocked at the door, for which, the deceased asked from inside the house as to who was that knocking the door. Then the person replied that he was Mohan (appellant) and that he wanted to talk something with the deceased and that he asked to open the door. Then the deceased woke up, switched on the light and again asked through the window as to who was outside of the house, for which, the person replied that he was Mohan (appellant). On that, the deceased opened the window, looked outside through the window and after that he opened the door and came out from the house. At that time, P.W.2 and herself woke up and sat on the cot. After the deceased went outside the house, she heard somebody quarreling with the deceased. Then she came out from the house and P.W.2 followed her. By that time, the deceased was on the ground and A.1 was beating at the neck of the deceased with an axe. She questioned A.1 as to why he was beating the deceased, for which, A.1 replied that the deceased got one Baje Rajender and Kaniganti Madhu arrested. At that time, A.2 was also present, he dragged the deceased upto electric pole, stabbed the deceased with a knife and by dropping the said knife at the scene of offence, both A.1 and A.2 left the scene of offence. When she tried to rescue the deceased, A.1 threatened her that he would kill her. When she raised hue and cry, P.W.7 and Mangali Venkanna (P.W.8) came to the scene of offence, by which time, A.1 and A.2 were leaving the scene of offence on a motorcycle. It was elicited in her cross-examination that the deceased had no other avocation except the party work and he worked for C.P.I. Party as a full time worker. One Rajhender whom she got mentioned in Ex.P.1 report is the resident of Korivi village and she does not know what the said Rajender does. To a question put by the Court she answered that the person who knocked the door stated that he was Mohan and the deceased after switching on the light and after seeing the said Mohan through the window, opened the door and came out from the house. She admitted that she did not get mention the fact of A.2 dragging the deceased upto the electric pole and stabbing the deceased with the knife in Ex.P.1 report. To a question, she answered that she would identify the person who stabbed the deceased and accordingly she identified A.2 in the Court hall. P.W.2, the daughter of the deceased and P.W.1, while corroborating the evidence of P.W.1 stated that she woke up when the deceased opened the door and went outside of the house by switching on the lights. On hearing that somebody was quarreling with the deceased, herself and P.W.1 went outside of the house and observed two persons there and she identified A.1 and she do not know the other person who was with A.1. A.1 was axing the deceased. The other person who came with A.1 dragged the deceased upto electric pole and the said person stabbed the deceased with a knife and after stabbing the deceased, the said person left the knife at the scene of offence and then that person and A.1 left the scene of offence on the motorcycle. She identified A.2 in the Court. In the cross-examination, she stated that she know A.1 as he had a T.V. mechanic shop on the way to her school. She admitted that she did not state to the police in her statement that the deceased, on the call of Mohan, switched on the light, but asserted that the deceased switched on the light and then went outside to the call of Mohan. 9. P.W.3 was declared hostile. P.W.4, who is the elder brother of the deceased, is a circumstantial witness. He deposed that the place where the deceased resided is the party office of C.P.I. P.Ws.5 and 6 are circumstantial witnesses to the incident. They deposed that on hearing the cries, they went to the place where P.W.1 was and found P.Ws.7,8 and some others at the incident. When they enquired with P.W.1, she stated that A.1 and some other person hacked and stabbed the deceased and left the scene of offence on a motorcycle. P.W.7 deposed that for the last 10 years he is running a hotel in Korivi Village. He knows A.1, who is running a T.V. mechanic shop in Korivi village. The house of the deceased is situated at a distance of 30 yards to his hotel and at a distance of 20 yards there is a turning. On 13.8.2004 at about 3.00 a.m., while P.W.8 was taking tea in his hotel, he heard cries from the lane of the corner. On hearing the said cries, himself and P.W.8 went there to know as to what was happened. At a distance of 10 yards, a public electric pole is situated from the house of the deceased. One person was lying on the ground and two persons were on him and it appeared to them that the said two persons were quarreling with the said lying person. By the time they reached the place, the said two persons left that place on a Hero Honda motorcycle by their side, and he identified the said two persons as A.1 and A.2. When he enquired with P.W.1, she told that A.1 and some other person came to her house, knocked the door and when the deceased came out of the house, they beat the deceased and killed him. P.W.8 corroborated the evidence of P.W.7. In the cross-examination, he stated that he knows A.1 since he is his classmate from 5th to 10th class. Though he was present at the hospital, he was not examined by the police, but he was examined at 3.00 p.m. at Korivi village. P.W.16 is the investigating officer, who visited the scene of offence, held inquest over the dead body, conducted the scene of offence panchanama and recorded the statements of witnesses. He seized M.O.4- axe at the instance of A.1 on the basis of confessional statement made by him on 6.9.2004 under Ex.P.6. On receipt of information that one motorcycle was lying at the outskirts of Avuthapuram village, he deputed P.W.14- constable and L.W.19 and they went to the place where the said motorcycle was lying, and that they verified about the said motorcycle and came to the conclusion that the same was used by A.1 and A.2 in the commission of offence. The said evidence was corroborated by P.W.14. In the cross-examination of P.W.16, he admitted that P.W.1 omitted to state in her statement under Section 161 Cr.P.C. that the deceased switched on the light at the call of A.1. He also admitted that P.W.7 did not state in his statement under Section 161 Cr.P.C. that he knows A.1 and so he identified him. He also admitted that P.W.8 omitted to state that he identified A.1 while leaving the scene of offence. He also admitted that when he visited the house of the deceased, he did not observe the electricity connection in the house. He visited the house of A.1 along with Dog Squad as the Dog Squad led them to the house of A.1. 9. C.W.1, who was examined by the court, deposed that the service connection No.141 of Korivi Village was released on 1.12.1997 under commercial purpose in the name of C.P.I. Office, Kuravi, that the said service connection was disconnected on 1.1.1998 due to non-payment of electricity consumption charges and that the same not been re-connected. He stated that the door number of C.P.I. Office, Korivi, which is located in one portion is 1-23/5/7 to which the service connection No.141 belongs, but to the other portion with door No.1-23/5, domestic service connection was provided in the name of Smt.Md.Vaseema, wife of the deceased, with service connection No.1735 which was released on 29.5.2004 for residential purpose and that the said service is still in existence as the electricity bills of the said service connection are paid promptly by the consumer. 10. No-doubt, in Ex.P.1 report as well in the statement under Section 161 Cr.P.C., P.W.1 has not stated about the deceased switching on the light when he was called by A.1, but the fact remains that the portion wherein the deceased, P.Ws.1 and 2 are residing is connected with electricity connection as seen from the evidence of C.W.1. Naturally, when somebody knocks the door at odd hours, the inmates will open the door only after switching on the lights to know the persons who are knocking the door. Further at a distance of 20 yards from the scene of offence, there is an electricity pole, which also probablises that there was light to identify the accused. It is now fairly well settled that when the wife and children of the deceased are happened to be the eyewitnesses to the occurrence, they cannot be called as interested witnesses on the ground that they are related to the deceased. The testimony of the related witnesses cannot be rejected due to the closeness of the relation, which they have with the deceased as they did not spare the real assailants and falsely implicate the other persons. P.Ws.1 and 2 are natural eyewitnesses to the incident since the incident had taken place in front of the house of the deceased at the wee hours and therefore, their presence at the scene of offence is quite natural and convincing. Therefore, implicit reliance can be placed on their evidence and their evidence cannot be discarded only on the ground that they are related witnesses and certain omissions were made by P.W.1 at the initial stages. In fact, in Ex.P.1 report, P.W.1 categorically stated that A.1 and another person hacked the deceased with axe and stabbed him, which has also been corroborated with the medical evidence. Merely because the axe-M.O.4 did not contain any bloodstains that itself cannot be a ground to disbelieve the evidence of eyewitnesses. The evidence of eyewitnesses is consistent about the commission of offence by the appellant and that P.W.8, who is a classmate of appellant-A.1 also stated that immediately after the incident himself and P.W.7 rushed to the spot and observed A.1 and another person (A.2) going on the motorcycle. There is no necessity for P.W.8 to implicate the appellant-A.1 leaving the real assailants. The learned Sessions Judge after elaborately considering the entire evidence rightly concluded that it is the appellant and none else committed the said offence. In view of the evidence brought on record, we are not persuaded to come to a different conclusion that the one reached by the learned Sessions Judge. 11. In the result, we dismiss the appeal confirming the conviction and sentence recorded by the learned Sessions Judge against the appellant- A.1. _______________ A. GOPAL REDDY. J _________________ K.C.BHANU.J JULY 06, 2010 Tsr.