THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No.118 of 2008 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) The appellant – Bavanath Harza Nayak, D/o.Baddu Nayak, R/o.Hanumapuram Village, H/o.Garikapadu, Bollapalli Mandal, Guntur District, who faced the trial for the oﬀence punishable under Section 302 I.P.C in S.C.No.375 of 2004 on the ﬁle of X Additional District and Sessions Judge, Guntur at Narasaraopet, convicted therefor and sentenced to suﬀer imprisonment for life and to pay a ﬁne of Rs.1,000/-, in default to suﬀer simple imprisonment for six months v i d e judgment dated 18.12.2007. Challenging the conviction and sentence, the appellant filed this appeal. The substance of the charge against the accused is that on 06.01.2004 at 9.30 a.m., at the hotel of Banavath Balaji Nayak situated at Hanumapuram Village within the limits of Bandlamottu Police Station in Guntur District, he committed murder of Vadithe Bheema Nayak @ Bheemudu Nayak (hereinafter referred to as ‘the deceased’) by stabbing with a knife. The case against the accused as unfolded during the trial is briefly stated as follows: The accused, deceased and all material witnesses are residents of Hanumapuram Village. P.W.1 is the father of the deceased. On 06.01.2004 at about 9.30 a.m., while the deceased was reading a newspaper sitting in the hotel of P.W.3, the accused came behind him and stabbed him with a knife on his back. Then the deceased jumped to the other side of the road and hide himself behind P.W.4. When the accused reached there, P.W.4 asked the accused not to do any harm to the deceased. But the accused declared that if he (P.W.4) won’t leave aside, he would also be killed. Then P.W.4 suggested the deceased to run away. When the deceased was trying to run away, the accused caught him with the aid of his shirt collar and stabbed him with the knife on the left arm pit and below the left chest, due to which the deceased fell on the ground. P.Ws.4 to 6 and one Balaji Naik (L.W.7) tried to catch hold the accused, but the accused escaped from there. P.W.3 and others shifted the deceased to the hospital of P.W.8, who advised them to shift the deceased to the Government Hospital, Vinukonda. In the meanwhile, P.Ws.1, 2, 9 and others came there and shifted the deceased in the tractor of P.W.9 to Remidicherla and from there to Government Hospital, Vinukonda in a private jeep. At about 1.00 p.m, the doctors examined the deceased and declared him as brought dead. P.W.1 went to Bandlamottu Police Station at about 2.30 p.m., and gave Ex.P.1-report to P.W.15, Sub Inspector of Police. On the basis of the said report, P.W.15 registered a case in Crime No.2 of 2004 under Section 302 r/w 34 I.P.C. Ex.P.12 is the F.I.R. P.W.14, C.I of Police, who took up investigation, recorded the statements of P.Ws.1, 2 and others at the hospital. He conducted inquest over the dead body of the deceased before the presence of P.W.12 and others and thereafter sent the dead body for post mortem examination. Ex.P.8 is the inquest report. On 07.01.2004, he visited the scene of oﬀence and prepared the scene of oﬀence panchanama before the presence of P.W.11 and others. Ex.P.6 is the scene observation report. He also seized M.O.7 blood stained earth and M.O.8 controlled earth. P.W.13, Medical Oﬃcer, Vinukonda, conducted autopsy over the dead body of the deceased on 07.01.2004 at 10.00 a.m., and opined that the deceased would appear to have died of haemorrhage and shock due to multiple injuries. Ex.P.10 is the post mortem certiﬁcate. P.W.14 arrested the accused on 26.01.2004 at 5.00 p.m., at Vinukonda Bus Stand in the presence of P.W.12 and others and recovered the knife from the accused. Ex.P.9 is the recovery of case property. Thereafter, the accused was sent to judicial remand. After completion of investigation and receipt of report from the Regional Forensic Science Laboratory, P.W.14 laid the charge sheet. On ﬁling the ﬁnal report, the learned Judicial Magistrate of First Class, Vinukonda, committed the case to the Court of Sessions, Guntur. On such committal, a charge under Section 302 I.P.C has been framed against the accused. When the same was read over and explained to the accused in Telugu, he denied the same and claimed to be tried. To substantiate its case, the prosecution examined P.Ws.1 to 15 and got marked Exs.P.1 to P.12 apart from marking M.Os.1 to 16. On behalf of the defence, though none were examined, Ex.D.1 was marked. After the closure of the prosecution side evidence, the accused was examined under Section 313 Cr.P.C, wherein he denied the incriminating evidence adduced against him and reported no defence witnesses. He stated that this case is a political conspiracy and that his Mandal Ex-MPP Banavath Sakru Bai’s faction people got foisted this case as he belongs to the faction of Syda Saheb. He also stated that P.W.1’s brother-in-law’s son by name Susheel Kumar Naik, I.P.S is working as S.P. and he was giving money to depose the witnesses against him. He further stated that Sakru Bai’s son by name China Swamy Naik, I.R.S and Sri Sunil Naik, I.P.S are friends and they got foisted this case, though he is no way concerned with the commission of the offence. P.W.1, who is the father of the deceased, deposed that on the fateful day at about 10.00 a.m., while he was at his ﬁelds, he received a message stating that when the deceased was reading a newspaper in Mangi Bai’s hotel, the accused stabbed him. Then he rushed to the tank centre and found the body of the deceased lying on the road with bleeding injuries. On seeing the tractor of P.W.9, they shifted the deceased in that tractor to Ravidicherla, and from there the deceased was shifted in a van to the Government Hospital, Vinukonda. The doctor, after examining the deceased, declared him as brought dead. Later, he went to Bandlamottu Police Station and submitted Ex.P.1-report. The above evidence discloses that P.W.1 is not an eyewitness to the incident. P.Ws.2 to 7 are said to be the eyewitnesses to the incident. P.W.2 deposed that on the date of incident at about 9.30 a.m., the accused came to the hotel of Manga Bai -P.W.3 and stabbed the deceased with a knife on the back of the deceased. Then the deceased jumped to the other side of the road i.e., near the hotel of Babu Nayak and hide himself behind P.W.4, who was already there. When the accused reached near P.W.4, P.W.4 asked him not to cause harm to the deceased. Then the accused declared that if he (P.W.4) won’t leave aside, he will also be killed. Then P.W.4 suggested the deceased to run away. When the deceased tried to run away, the accused caught him with the aid of his shirt collar and stabbed him with knife on left arm pit and below the left chest, due to which the deceased fell down on the ground. Then they took the deceased to Dr.Subhani and as per his suggestion, the deceased was shifted to Government Hospital, Vinukonda. Himself, parents of the deceased and some others took the deceased in a tractor upto Remidicherla and from there, the deceased was shifted to Vinukonda in a van. P.W.3, who is running the hotel, where the incident took place, deposed that at the time of incident, her husband went to attend the calls of nature and she was in the hotel. At that time, P.W.2-Ramavath Manthru Naik, P.W.4-Hadya Naik, P.W.5-Aseervadam along with the deceased were there and the deceased was reading news paper. At about 9.30 a.m., the accused came to her hotel and asked her to serve tea. Accordingly, she served tea to the accused. Then the accused came behind the deceased and stabbed him on his back with a knife. When the deceased started running away, the accused followed him. This witness also deposed about the stab injuries received by the deceased in the hands of the accused as stated by P.W.2. P.Ws.4 to 7 uniformly stated about the manner in which the accused attacked the deceased. Nothing has been elicited in their cross examination to discredit their testimony with regard to their witnessing the incident. P.W.8, who is a compounder, deposed that on 06.01.2004 at 9.45 a.m., the deceased was brought to him by P.W.4, parents of the deceased and others and asked him to treat the deceased, who was stabbed by the accused. Then he suggested them to shift the deceased to Vinukonda Hospital. P.W.9 is the owner-cum-driver of the tractor-cum- trailer, in which the deceased was shifted to Remidicherla. He deposed that at the time of shifting the deceased in his tractor, the parents of the deceased and some others were present and that from Remedicherla to Vinukonda the deceased was shifted in a van. P.W.10 is the photographer, who took the photographs of the dead body of the deceased. P.W.11 is the panch witness to the scene observation report – Ex.P.6. P.W.12, who is working as Works Inspector in A.P. Housing Corporation, deposed that in pursuance of the summons issued under Ex.P.7, he along with other inquestdars attended the Government Hospital, Vinukonda, where inquest was conducted over the dead body of the deceased. Ex.P.8 is the inquest report, wherein himself and other panchayatdars signed. He further deposed that he was again called to the oﬃce of the C.I, Vinukonda, on 26.01.2004 at 4.30 p.m; that in his presence, the accused made confession, in pursuance of which, M.O.5-knife used by the accused was recovered. Himself, other mediators and the police signed Ex.P.9- panchanama. P.W.13 is the doctor, who conducted autopsy over the dead body of the deceased and found the following injuries: “1. A laceration of 3 x 2 c.m x rib deep on the left side of the chest edges are regular. 2. A laceration of 3 x 2 c.m x rib deep on the left side 7 c.m. from the nipple edges are regular. 3. A laceration of 3 x 2 c.m muscle deep on the left side back loin region edges are regular.” He issued Ex.P.10 – post mortem certiﬁcate opining that the deceased would appear to have died of haemorrhage and shock due to multiple injuries. P.W.14 is the then C.I of Vinukonda Police Station. He deposed that on receipt of F.I.R, he took up the subsequent investigation and that after completion of investigation and receipt of Regional Forensic Science Laboratory Report, he laid the charge sheet. P.W.15, who is the S.I of Police, deposed that on 06.01.2004 at 2.30 p.m, P.W.1 submitted Ex.P.1 report, on the basis of which, he registered a case in Crime No.2 of 2004 for the offence under Section 302 r/w 34 I.P.C. On analysing the oral and documentary evidence, the learned Sessions Judge held that the prosecution could able to establish the guilt of the accused beyond all reasonable doubts and found him guilty of the oﬀence under Section 302 I.P.C, and accordingly convicted and sentenced him as stated supra. Challenging the conviction and sentence, the appellant/accused preferred this appeal. Smt.A.Gayathri Reddy, learned counsel for the appellant contends that the entire case has been foisted against the accused under the inﬂuence of one Suseel Kumar Naik, I.P.S, who was working as S.P and that P.W.2 to 7, who are shown as eyewitnesses deposed in their evidence in stereo type, and therefore, they are planted witnesses and their evidence cannot be taken into consideration. Alternatively, she contends that had the medical aid been provided to the deceased promptly, he would have been survived. Therefore, instead of convicting the accused for the oﬀence under Section 302 I.P.C., the accused can be convicted for the oﬀence under Section 304 Part I I.P.C. On the other hand, the learned Additional Public Prosecutor sought to sustain the impugned judgment. P.W.2 is an eyewitness to the incident, whereas P.W.3, who is the owner of the hotel, where the deceased was sitting and reading newspaper at the time of incident, is also an eyewitness to the incident. They have no enmity as such against the accused. Though they were cross-examined by the defence, nothing was elicited to discredit their testimony. Added to the same, the evidence of P.Ws.2 to 7 discloses that when the deceased received ﬁrst stab injury in the hands of the accused, he tried to run away, but the accused chased him and inﬂicted two more stab injuries, due to which, the deceased died. Therefore, it is clear that the accused decided to do away the life of the deceased and accordingly executed his plan meticulously. Hence, the contention advanced by the learned counsel for the appellant that there is no motive for the accused to do away the life of the deceased and that the accused cannot be convicted for the oﬀence under Section 302 I.P.C instead he can be convicted for the oﬀence under Section 304 Part I I.P.C, do not merit any consideration. In view of the same and since we are fully convinced with the evidence adduced by the prosecution and the ﬁndings recorded by the lower Court in convicting the accused, we are not inclined to interfere with the judgment under appeal. In the result, the Criminal Appeal is dismissed. A.GOPAL REDDY, J R. KANTHA RAO, J Date: 16.11.2011 va