HON’BLE SRI JUSTICE B. SESHASAYANA REDDY CRIMINAL APPEAL No.354 of 2005 Dated 10th day of March, 2011 Between: Bonthala Siva Sankaram @ Sankaram …Appellant And 1. State Rep. By the Public Prosecutor, High Court of A.P., Hyderabad. 2. State rep., by Inspector of Police, Kakinada Rural through Sarpavaram P.S. …Respondents The Court made the following: HON'BLE SRI JUSTICE B. SESHASAYANA REDDY CRIMINAL APPEAL No.354 of 2005 JUDGMENT:- This criminal appeal is directed against the judgment dated 06-05-2004 passed in Sessions Case No.336 of 2003 on the file of the IV Addl. District and Sessions Judge, Kakinada whereby and whereunder the learned Addl. Sessions Judge found accused- Bonthala Siva Sankaram @ Sankaram, guilty for the offence under Section 304 Part I of I.P.C and convicted him accordingly and sentenced him to undergo rigorous imprisonment for seven years and pay a fine of Rs.500/-, in default, to suffer simple imprisonment for three months. 2. The prosecution case, in brief, is that accused-Bonthala Siva Sankaram @ Sankaram is resident of Kothapakalu, Bhavanarayanapuram, hamlet of Sarpavaram village. Mariyamma is his wife. Chimma Sathi Babu was a resident of Ranadeepnagar, hamlet of Thoorangi Village, Kakinada Rural. He developed intimacy with Mariyamma and he eloped Mariyamma and stayed at Visakhapatnam. The accused traced his wife Mariyamma with Sathibabu at Visakhapatnam and brought her back to Kothapakalu on 27-06-2002. He raised dispute before elders of the locality. The elders promised that they would resolve the matter on the next day and asked Mariyamma to stay in the house of P.W.2-Janupalli Anjaneyulu on that night. On the same night, the accused noticed Sathibabu near the house and thereby an altercation ensued between them. P.W.1- Paripalli Ramu and others intervened and separated them and sent the accused to his house. P.W.1 and others took Sathibabu beyond the road and advised him to go away. However, after a short while, Sathibabu again came back to Kothapakalu village. The accused noticed him and felt that it would be impossible for him to lead marital life with his wife if Sathibabu is alive. He made up his mind to liquidate Sathibabu and picked up an axe from his house and proceeded towards Sathibabu and hacked him on head. Sathibabu received bleeding injuries and met with instantaneous death. P.W.1- Paripalli Ramu, P.W.2-Janupalli Anjaneyulu, P.W.3-Pedapudi Guravaiah and P.W.4 Peketi Bhoolokam witnessed the incident and caught the accused and produced him before the Panchayat Secretary. P.W.6-Neethipudi Selectu Raju, Panchayat Secretary, Sarpavaram enquired the accused and thereupon the accused confessed before him of his committing the offence. He prepared a report and sent the same to Sarpavaram Police Station through P.Ws.1 to 4. P.Ws.1 to 4 produced the accused along with the weapon used in the commission of the offence before the Station House Officer, Sarpavaram Police Station and presented Ex.P.4-report. P.W.9- K.Nageswara Rao, Sub-Inspector of Police, Sarpavaram Police Station, received Ex.P.4-report and registered a case in Crime No.124 of 2002 under Section 302 I.P.C and issued Ex.P.9-F.I.R. He seized M.O.1 axe in the presence of P.Ws.1 to 4. P.W.10-K.Raghuveera Reddy, Inspector of Police, Kakinada Rural, took up investigation, inspected the scene, lifted controlled earth and blood stained earth while observing the scene of offence and prepared rough sketch of the scene, which has been exhibited as Ex.P.10. He examined P.Ws.1 to 5 and recorded their statements under Section 161 Cr.P.C. He effected arrest of the accused and produced him before the IV Addl. Judicial First Class Magistrate, Kakinada. P.W.10 held inquest on the dead body of the deceased in the presence of P.W.6-N.Selectu Raju and L.W.10-Yenugu Somanna Dora. The opinion arrived by the panchayatidars, on hearing the witnesses during the inquest, came to be recorded in column No.15 of the inquest report. Ex.P.6 is the inquest report. After the inquest, the dead body was sent for post mortem examination. P.W.7-Dr.G.K.V.Prakash, conducted post mortem examination on the dead body of the deceased on 28-06-2002 at 03.15 p.m and issued Ex.P.7-post mortem report opining that the deceased died due to depressed cut fracture of skull. 3. After completing investigation, a charge sheet came to be submitted before the IV Addl. Judicial First Class Magistrate, Kakinada. The learned Magistrate took the charge sheet on file as P.R.C.28 of 2002 and committed the case to the Sessions division, East Godavari District at Rajahmundry, as the offence under section 302 I.P.C is exclusively triable by a Court of Session. The learned Sessions Judge took the case on file as Sessions Case No.336 of 2003 and made over the same to the IV Addl. District and Sessions Judge, Kakinada for disposal according to law. 4. On appearance of the accused and on hearing the prosecution of the accused, the learned Addl. Sessions Judge framed a charge under Section 302 I.P.C., readover and explained the same to the accused, for which the accused pleaded not guilty and claimed to be tried. 5. To bring home the guilt of the accused for the offence with which he stood charged, prosecution examined ten witnesses and proved eleven documents and exhibited five material objects. The accused marked contradictions in 161 Cr.P.C statement of P.W.3 as Exs.D.1 and D.2. The learned Addl. Sessions Judge, on appreciation of the evidence brought on record and on hearing the prosecution and the accused, found the accused guilty for the offence under Section 304 Part-I of I.P.C and convicted him accordingly for the offence under Section 304 Part-I of I.P.C and sentenced him to suffer rigorous imprisonment for seven years and pay a fine of Rs.500/-, in default, to suffer simple imprisonment for three months by judgment dated 06-05- 2004. Hence this criminal appeal. 6. Heard Sri K.Suresh Kumar Reddy, learned Counsel appearing for the appellant and learned Additional Public Prosecutor appearing for the respondent-State. 7. Learned Counsel appearing for the appellant-accused submits that though prosecution examined P.Ws.1 to 4 as eye-witness to the incident, they did not support the prosecution and therefore there is no direct evidence to prove that the appellant-accused is the person responsible for the death of the deceased. A further submission has been made that the sentence of the imprisonment of seven years for the offence under Section 304 Part-I of I.P.C is excessive and therefore the sentence of imprisonment is to be reduced to five years. 8. Learned Addl. Public Prosecutor supported the judgment impugned in the appeal. 9. The issue that calls for adjudication is whether the conviction and sentence of the appellant-accused for the offence under Section 304 Part-I of I.P.C is legal and proper. 10. Prosecution examined ten witnesses to bring home the guilt of the accused for the offence under Section 302 I.P.C. 11. P.Ws.1 to 4 are examined by the prosecution as eye- witnesses to the incident. Of them, P.Ws.1 to 3 did not support the prosecution with regard to the incident proper and therefore prosecution declared them hostile and cross-examined them after obtaining permission from the Court with reference to their 161 Cr.P.C. statements. 12. P.W.5 speaks of providing shelter to Mariyamma in her house on the night of 27-06-2002. 13. P.W.6 is the panchayat secretary who scribed Ex.P.4-report on being informed of the incident by P.Ws.1 to 4 and on the basis of the confessional statement of the accused. He is also panch witness for the scene of offence and the inquest report. 14. P.W.7 is the Doctor who conducted post mortem examination on the dead body of the deceased and issued Ex.P.7-post mortem report. 15. P.W.8 is the proprietor of M.S.Studio at Muralidharnagar, Sarpavaram. He photographed the scene at the instance of the Inspector of Police on 28-06-2002. Ex.P.8 is bunch of photographs along with corresponding negatives. 16. P.W.9 is the Sub-Inspector of Police, Sarpavaram Police Station, who received Ex.P.4-report and registered a case in Crime No.124 of 2002 and issued Ex.P.9-F.I.R. P.W.10 is the investigating officer. 17. Though P.Ws.1 to 4 have been examined as eye-witness to the incident, they did not support the prosecution and the prosecution declared them hostile and marked their 161 Cr.P.C Statements as Exs.P.1 to P.3. P.W.4 testifies that on the date of the incident, he witnessed the accused coming in opposite direction armed with blood stained axe and the deceased laying with hacked injuries on the back of his neck. He further testifies that he along with P.Ws.1 to 3 caught hold of the accused along with axe and took him to the village secretary and informed him. P.W.6 is the village secretary. He testifies that P.Ws.1 to 4 brought the accused along with an axe and produced before him and narrated the incident and thereupon he drafted Ex.P.4-report and enquired with the accused and thereupon the accused confessed of his committing the offence. Ex.P.4 is the report drafted by him. It is elicited in the cross-examination that the accused confessed of his causing death of the deceased. For better appreciation, I may refer the cross-examination of P.W.6 in his own words and it is thus: “I attend to my office generally at about 8.30 a.m., If any event happens in our village as Village Secretary I attend when police call. My house is at a distance of 2 k.ms from Kothapakalu. At about 04.00 a.m., P.Ws.1 to 4 came to my house and woke up. I also enquired accused when he was brought by P.Ws.1 to 4 at about 4 a.m Accused also confessed of his causing the death of the deceased Sathibabu. It may take at least one and half hour by a walk to reach my house from Kothapakalu. After verifying truth or otherwise from accused I have drafted the report it is Ex.P.4. It is incorrect to state P.Ws.1 to 4 did not come to me. It is incorrect to state the observation report was prepared at the police station. I might have scribed nearly about 10 reports in my service. I was at the place upto 12.30 noon. Later I left to my office. It is incorrect to state the inquest report is prepared at the police station. It is incorrect to state I am a stock mediator of police. On the two seized items M.Os.2 and 3, slips were affixed. It is incorrect to state M.Os.2 and 3 were not seized in our presence. Indrapalem is the place of my father-in-law.” 18. The evidence of P.W.6 is crystal clear that the accused confessed before him of his guilt. The extra-judicial confession made by the accused before P.W.6 lends support to the evidence of P.W.4, who stated that he witnessed the accused coming in opposite direction armed with a blood stained axe and the deceased laying with injuries on his neck back side. It is no more in dispute that the deceased met with homicidal death. 19. With regard to the motive aspect, P.Ws.1 to 3 have consistently stated that the deceased eloped Mariyamma, the wife of the accused, to Visakhapatnam and stayed there for sometime. A panchayat was to be convened with regard to the questionable relationship with Mariyamma, who is the wife of the accused, and the deceased. The prosecution is able to establish motive beyond the reasonable doubt. All the circumstances proved by the prosecution are sufficient to draw an irresistible conclusion that the accused alone is responsible for the death of the deceased. The learned Addl. Sessions Judge appreciated the evidence brought on record in right perspective and found that the accused is the person who is responsible for the death of the deceased. I do not see any valid ground to interfere with the conviction and sentence of the accused under Section 304 Part-I of I.P.C. 20. Accordingly, the Criminal Appeal fails and it is hereby dismissed. The bail bonds furnished by the appellant-accused shall stand cancelled. He shall surrender before the trial Court to serve out the balance sentence of imprisonment. ___________________________ Justice B. Seshasayana Reddy 10th March, 2011 VJL