THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 801 of 2007 JUDGMENT: (per the Hon’ble Sri Justice N.R.L.Nageswara Rao) 1. The sole accused in Sessions Case No.154 of 2005 on the file of the V Additional Sessions Judge (Fast Track Court), West Godavari at Eluru, who was convicted of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, ‘IPC’) and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.500/-, in default to suffer simple imprisonment for a further period of three months, is the appellant herein. 2. The case of prosecution, in brief, is that one Yarlagadda Manga (hereinafter referred to as ‘the deceased’) is the wife of accused; sister of P.Ws. 1 and 2, and daughter of P.W.3. The deceased and the accused had earlier married other persons and after divorce they married and were living together. They were blessed with two daughters viz. P.W.4 and another by name Sunitha. The accused was addicted to vices and was spending his money for them, and also demanding earnings of the deceased, and as she was not accepting the demands of the accused, he was ill-treating her, and in this regard, a panchayat was held in the presence of the village elders, but there was no change in the attitude of the accused. On 11.8.2004, the accused picked up a quarrel with the deceased after she returned from cooli work as she refused to give money and bore grudge against her. On 12.8.2004 at about 4.00 AM, again the accused picked up a quarrel with the deceased, and with an intention to kill her, he picked up a knife and hacked her on neck. On that, the deceased raised cries and P.W.4, who is daughter of the deceased and the accused present in the house, woke up and saw the attack of the accused on the deceased and caught hold of feet of the accused and begged him not to attack the deceased. But, the accused did not heed to her request and caused bleeding injuries on neck of the deceased. On hearing cries of the deceased, P.Ws. 1 to 3, 5 and others also came there and noticed the accused attacking the deceased. The deceased died on the spot and the accused ran away from the scene. On the complaint given by P.W.1, case in crime no.83 of 2004 was registered for the offence punishable under Section 302 IPC and investigated into. During the course of investigation, statements of witnesses were recorded and inquest was held over the dead body of the deceased and a panchanama of the scene of offence was conducted, and thereafter, the dead body was sent for postmortem examination. On the same day, at 5.00 PM, the accused was arrested by P.W.10 in the presence of panchayatdars and in pursuance of his confession, M.O.1-knife was seized. The accused was sent for remand and the material objects, which were seized, were sent for Forensic Science Laboratory examination, and after completion of investigation, the accused was charged for the offence punishable under Section 302 IPC. 3. The case was taken on file as P.R.C. No.33 of 2005 on the file of the Judicial Magistrate of First Class, Kovvur, and the same was committed to the Court of Sessions. Thereafter, the case was made over to the trial Court, after numbering the case. 4. The trial Court framed the following charge against the accused. “That you, on 12th day of August, 2004 at about 4 A.M. at your house at Ramachandrapuram, did commit murder by hacking Smt. Yarlagadda Manga (Deceased) with a knife on her neck by intentionally or knowingly causing the death of Smt. Yarlagadda Manga (deceased) for not giving her coolie wages for your vices and that you thereby committed an offence punishable U/Sec.302 of the Indian Penal Code and within my cognizance.” When the charge was read over and explained to the accused in telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate the case of prosecution, P.Ws. 1 to 12 were examined and Exs.P1 to P14 were got marked, on behalf of the prosecution, besides case properties M.Os. 1 to 11. 6. After completion of the evidence on prosecution side, the accused was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) to explain the incriminating evidence appearing against him in the evidence of prosecution witnesses. He denied the same. The accused did not adduce any evidence on his behalf. 7. After considering the material available on record, the learned Sessions Judge, vide the impugned judgment, found the appellant/accused guilty of the charge levelled against him and accordingly convicted and sentenced him as stated above. Aggrieved by the said judgment, the present appeal has been preferred by the accused through legal aid counsel Smt. C.Vasundhara Reddy, as the accused is said to be having no resources to defend him. 8. Heard the learned counsel for the accused and also the learned counsel representing the Public Prosecutor. 9. The points that arise for consideration are: (i) Whether the accused prosecution has proved that the accused has caused death of the deceased; (ii) Whether the conviction and sentence imposed by the learned Sessions Judge are legal and sustainable ? 10. POINTS 1 & 2: In support of the case of prosecution, P.W.1, who is brother of the deceased and panchayat board member of the village, deposed that the deceased was earlier married to one Kanuri Srinu of Muppavaram village, and after dissolution of their marriage, she married the accused about 10 years back and the accused also deserted his first wife. The accused is said to be his neighbour, and according to him, for about 8 years, marital life between the accused and the deceased was cordial, but the accused was addicted to drinking; on 11.8.2004 at about 9.00 PM, there was a quarrel between the accused and the deceased when the deceased refused to pay money as demanded by the accused, and at that time, P.W.2, his younger brother Venkata Rao and mother of the accused were also present, intervened and settled in dispute; thereafter, on the next day morning at about 4.30 or 5.00, on hearing cries from the house of the accused, he went there and found the accused holding tuft of deceased at the door steps of his house, and also found P.W.4 weeping. He further stated that the accused hacked the deceased with knife in his presence and also stated ‘MEE CHELLINI NARIKESANU, EMI CHESTARO CHESUKONDI’ (I hacked your younger sister, do whatever they want), and the deceased died instantaneously at the door steps. He claims to have given Ex.P1-complaint to police and identified M.O.1-knife used by the accused. In cross-examination, it was elicited that his sister did not take divorce and he denied the suggestion that the first husband of the deceased was visiting house of accused even though there was no relationship. It is further elicited in his cross-examination that in the early hours at the time of the incident, people will be in good sleep. He denied the suggestion that there is no possibility of hearing cries from the house of the accused and denied further possibility deceased falling on kattipita in a hurry to go to cooli work, and further denied possibility of first husband of deceased killing the deceased. P.Ws.2 and 3 also supported the case of prosecution in the same manner. 11. The learned counsel for the appellant tried to make out some contradictions in the evidence of P.Ws. 2 and 3 as to when actually they have reached the scene of occurrence and as to whether they have seen the actual attack on the deceased by the accused, and that, though the evidence of P.W.1 supports the attack, the evidence of P.W.3 shows that she had gone there later and the evidence of P.W.2 is also said to be not clear on this aspect. Therefore, according to her, the evidence of P.Ws. 1 to 3 about witnessing the attack on the deceased, is inconsistent. 12. Further more, in support of the case of the prosecution, P.W.4, daughter of the deceased and the accused, who was said to be aged 8 years at the time of the incident, was examined. After taking precautions about the capacity of the child witness to give the statement, the learned Sessions Judge came to the conclusion that the witness is capable of understanding and answer the questions, and accordingly, recorded her statement. It is stated by her that she was staying with the accused and the deceased, and that the accused used to come to the house in a drunken state every day and used to demand money from her mother. She further stated that her mother died about 3 years back, and on the date of incident, her father (accused) picked up quarrel with the deceased before sunrise and by that time, herself and her sister Sunitha were sleeping, and on hearing cries of her mother, her sister woke up and found her father catching hold of tuft of the deceased and beating her, and then, P.W.4 caught hold feet of the accused requesting him not to beat the deceased, and that without heeding the same, the accused hacked the deceased on neck with a knife, and on that, the deceased died on the spot. She denied a suggestion that she was staying with P.Ws. 1 to 3 and that she was giving tutored evidence. In cross-examination, she further stated that she slept with her mother on the date of the incident, and that, in their house, her parents, herself, her sister, her paternal grand mother, brother of her father, his wife and children, were residing. Except these suggestions, her capacity to witness the incident and observe the nature of crime and her capacity to recollect the events as her age being less, are not at all questioned in the cross- examination. 13. P.W.5, who is a neighbourer, deposed that on the date of the incident, before sunrise, on hearing crimes of P.W.3, he went to the house of the deceased and found dead body of deceased in a pool of blood, and scribed Ex.P1 on the request of P.W.1, and Ex.P1 contains his signature as scribe. 14. P.W.6 is the photographer who took Ex.P5- photographs of the deadbody and scene of occurrence. P.W.7 did not support the case of prosecution and was declared hostile. 15. P.W.8 is panch witness. In his presence, inquest panchanama and panchanama of the scene of occurrence were conducted and the reports were drafted. According to him, the accused is said to have been arrested by police and in his presence the accused gave a confessional statement and M.O.1-kinfe was seized under Ex.P10. He denied the suggestion that he prepared all these reports at the instance of police. 16. P.Ws.9 to 11, who are police officials, deposed about the registration of crime and investigation done by them in this case. 17. P.W.12 was examined to prove that one Dr. Ch.Maheswara Rao worked as Civil Assistant Surgeon, Nidadavole, and Ex.P14-postmortem certificate contains his signature, and that Ex.P14 discloses that 12.8.2004, he conducted postmortem examination over the dead body of the deceased. It is elicited in her cross- examination that the injuries referred in Ex.P14 can be caused by a sharp edged weapon. 18. On the above evidence, the learned counsel for the appellant contended that in view of the inconsistencies in the evidence of P.Ws. 1 to 3 about going to the scene of offence and unreliability of the evidence of P.W.4, the conviction of the appellant/accused is not sustainable. 19. On the other hand, the learned counsel representing the Public Prosecutor contended that P.Ws. 1 to 3 are reliable witnesses and there is no reason for them to implicate the accused falsely in a case of this nature, and even if the evidence of P.Ws. 1 to 3 is to be ignored, there is substantial evidence of P.W.4, whose evidence cannot be discredited for any reason, and that, appreciation of the evidence on record by the trial court is correct, and there are no grounds to interfere with the conviction and sentence recorded by the trial court. 20. There cannot be any dispute that, even in case of a truthful witness, there are bound to be some contradictions and the court has to see whether the substratum of the case of prosecution has been established or whether such contradictions defeat the version of the prosecution case. It is to be noted that it is not the plea of the accused that at the time of the incident, he was not there in the house. Therefore, death of the deceased in the company of the accused is not disputed. In the case on hand, apart from the evidence of P.Ws. 1 to 3, the admitted circumstances are that the accused and the deceased were living together in the same house, and presence of P.W.4, who is none other than their child, at that time along with her parents, cannot be excluded. It is well settled that the evidence of a child witness has to be scrutinized carefully, and if it is found to be true and trustworthy, and not an outcome of tutoring, it can be relied on without corroboration, and the trial Court rightly relied on a decision in Prataap Singh & another v. State of Madhya Pradesh[1] in this regard. Therefore, the evidence of P.W.4 carries more weight and the fact remains that her evidence is not shaken in cross- examination and there are no improbability in witnessing the crime by her. There is absolutely no reason for her to speak against her own father if he had not really committed the crime. That apart, as already stated, her capacity to witness the incident and observe the nature of crime and her capacity to recollect the events, are not at all questioned in her cross-examination. Further more, as a natural reaction when her mother was attacked, she begged the accused not to beat her mother. Added to that, the evidence of P.Ws. 1 and 2 would clearly go to show that the accused has asserted that he had attacked the deceased and beat her. Therefore, all these circumstances add to the reliability of the evidence of P.Ws.4, and 1 to 3. The learned Sessions Judge has rightly placed reliance on the evidence of P.Ws.1 to 4, and we do not find any error committed by the lower court in appreciating the evidence on record. 21. The learned counsel for the appellant contends that due to the previous day quarrel and the behaviour of P.Ws. 1 to 3 in chastising him and in the feeling of insult, the accused might have committed the offence in the fit of anger without any premotive, and that though he might have attacked her, he might not have intended to kill the deceased and the nature of the injuries is only a single injury, and therefore, the accused may be given benefit of doubt for the offence punishable under Section 302 IPC and his conviction into one under Section 304 Part I IPC. We find sufficient reason in the submission of the counsel for the appellant, and taking into consideration the nature of the injuries and also the facts and circumstances of the case, we are of the opinion that the case established against the accused would attract the offence punishable under Section 304 Part I IPC, but not one under Section 302 IPC. 22. In the result, the conviction and sentence recorded against the appellant/accused in the impugned judgment for the offence punishable under Section 302 IPC are set aside, instead, the appellant/accused is found guilty of the offence punishable under Section 304 Part-I IPC, accordingly convicted and sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.100/-, in default to suffer simple imprisonment for one month. The period of remand underwent by him during investigation, trial and after conviction shall be given set off, under Section 428 Cr.P.C.. 23. The Criminal Appeal is, accordingly, partly allowed. ------------------------ (K.C.BHANU, J.) ------------------------------------------ (N.R.L. NAGESWARA RAO, J.) 20.12.2010 DRK THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 801 OF 2007 (per the Hon’ble Sri Justice N.R.L. Nageswara Rao) 20.12.2010 THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 801 OF 2007 Date: 20.12.2010 Between: Yarlagadda Antervedi …Appellant And The State of A.P. rep. by the Public Prosecutor, High Court of A.P., Hyderabad …Respondent [1] 2006 (2) C.R.J. 539