IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTIETH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.59 OF 2007 Between: Perla Venkataiah ..... APPELLANT AND State of Andhra Pradesh ....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.59 OF 2007 JUDGMENT: (Per Hon'ble Sri Justice N.R.L. Nageswara Rao) The accused in Sessions Case No.249 of 2006 on the file of III Additional Sessions Judge, (I Fast Track Court), Nalgonda, who was convicted of the offence under Section 302 of the Indian Penal Code, 1860 (for short, "I.P.C.") and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for a period of three months, is the appellant herein. 2. The case of the prosecution is that the deceased was the wife of the accused and there were some marital differences between them after the marriage and after birth of two children and as the accused was harassing the deceased, she came to her mother's house at Chinnamadharam Village of Kanagal Mandal. She stayed there for some time and two months prior to the incident, the accused also came to the said village and promised to look after the deceased properly and stayed along with the deceased in the house of PW.1, who is the mother of the deceased. The accused was said to have addicted to vices and was not providing anything to the deceased to maintain the family and had not changed his attitude, in spite of the promise made by him. While so, on the night of 06.11.2005, when PW.1 and her son, PW.2, went to the Panchayat Office to witness Television programmes, the deceased, accused and PW.3 were said to be at the house of PW.1 and in between 09:00 PM to 10:00 PM, the accused was said to have axed the deceased inside the house. PW.3 has witnessed it and the accused had fled away from the place, leaving the axe. Thereafter, PW.3 went to PWs.1 and 2 and informed about the incident and they came to the scene of offence and found the deceased in a pool of blood with injuries. On the next day morning, a complaint was lodged by PW.1, which was registered as a case in Crime No.64 of 2005 under Section 302 I.P.C. and investigated into. During the course of investigation, panchanama of the scene of offence and inquest on the dead body of the deceased were conducted; statement of witnesses were recorded and got photographed the scene of offence. On 10.11.2005 at 04:00 AM, the accused was apprehended and in pursuance of his confessional statement, the axe used for the commission of offence has been recovered and thereafter, he was sent for remand. The material objects were sent to Forensic Science Laboratory for examination and after completion of the investigation, the accused was charged for the offence under Section 302 I.P.C. The case is taken on file as P.R.C.No.29 of 2006 by the Judicial Magistrate of First Class, Nalgonda and committed the same to the Court of Sessions. 3. After the appearance of the accused before the learned Fast Track Court Judge, when a charge under Section 302 I.P.C. was framed, read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution examined PWs.1 to 13 and got marked Exs.P-1 to P-10 besides case properties M.Os.1 to 3. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. and he did not adduce any defence evidence. 6. After considering the evidence on record, the learned Sessions Judge convicted the accused for the offence for which he was charged and accordingly, sentenced him after hearing the accused. Aggrieved by the same, the present Criminal Appeal is filed. 7. Since the accused has no capacity to defend himself, Smt. P.S. Manjula Kumar has been appointed as legal aid counsel. Heard the legal aid counsel for the accused and also the learned Public Prosecutor representing the state. 8. The points that arise for consideration are: 1) Whether the prosecution has proved that there were marital differences between the accused and the deceased and consequently, the accused has committed the murder of the deceased as alleged on the night of 06.11.2005 at the house of PW.1? 2) Whether the conviction and sentence recorded by the learned Sessions Judge is legal and sustainable? 9. In order to substantiate the prosecution case, PWs.1 to 3, who are the close relatives of the accused and the deceased were examined. PW.1 is the mother; PW.2 is the sister and PW.3 is the brother of the deceased. Their evidence goes to show that after the marriage of the deceased with the accused, they were blessed with two children and since, the accused was harassing the deceased, she joined PW.1 and was staying with her at Chinnamadharam Village. As per the prosecution case and also the evidence of PWs.1 to 3, two months prior to the incident, the accused also stayed with the deceased in the house of PW.1 and he did not change his attitude and on the night of 06.11.2005, the incident is said to have happened. The evidence of PW.4 is about the information conveyed by PW.3 to PWs.1 and 2 at the panchayat Office, where he was also present and proceeded to the scene of incident. PW.5 did not support the prosecution case and was declared as hostile. The evidence of PW.6 is also on the same lines as the evidence of PW.5. The evidence of PW.7 is of taking of the photograph of the scene of offence. The evidence of PW.8 is not in support of the prosecution case, though he was said to be present at the time of conducting panchanama of the scene of offence and inquest on the dead body of the deceased. PW.9 is said to be present at the time of conducting panchanama of the scene of offence and also inquest on the dead body of the deceased and he deposed police conducting panchanama and inquest in his presence. There is not of much to discredit his testimony in the cross- examination about his presence at the time of conducting panchanama of the scene of offence and obtaining signatures on the panchanama prepared by the police. The evidence of PW.10 is about the arrest of the accused and the accused giving a voluntary confessional statement, in pursuance of which the axe used for the commission of offence was recovered and seized under M.O.1 and recorded the confessional and recovery panchanama under Ex.P7. The evidence of PW.11 is in conducting the post-mortem examination over the dead body of the deceased and noticing the following injuries: “1) Lacerated wound 9 x 2 x 3cm on the back side of the neck. Antimortem caused by sharp object. 2) Fracture of Vertebra at the survical 6th and 7th level. 3) Injuries to blood vessels in the neck right carotid subclavian.” He opined that the cause of death was due to hemorrhagic shock due to the neck injury and issued Post-mortem Examination Report - Ex.P8. The evidence of PWs.12 and 13 is about the investigation done by them in this case. 10. While appreciating the evidence, the learned Sessions Judge taken into consideration the evidence of PW.3, who is said to be an eye-witness and circumstantial witness for the crime. Coming to the motive of incident, he also relied upon the version of PWs.1 to 3 about the ill-treatment of the accused to the deceased and the accused staying with the deceased. The learned Sessions Judge did not gave much credence to the confessional statement of the accused and the recovery of MO.1 at the instance of the accused. 11. The learned counsel representing the accused contends that the appreciation of the evidence by the learned Sessions Judge is against the material on record and the evidence of PW.3 cannot be given much credence. It is her plea that except the interested statements of PWs.1 to 3, the motive to commit crime by the accused is not disclosed, because none of the neighbours, where the accused and the deceased lived together prior to shifting to Chinnamadaram village, were enquired and examined and no complaint was given to the police about the nature of the ill-treatment. Further, the evidence of PW.1 shows that though the deceased is said to have come to the Chinnamadaram village two months prior to the incident, he stayed there only for one month and did not continue to stay there and therefore, there is very crucial doubt about the trustworthiness of the evidence of PW.1 about the accused being present in the house along with the deceased on the date of incident, because there is no continuous stay of deceased and the accused in the house of PW.1. Furthermore, it is her contention that though in the complaint - EX.P1 it is stated that the deceased and the accused were said to have stayed back in the house, when PWs.1 and 2 went to the panchayat office, in the evidence of PW.1, which is essential, she did not speak about the presence of the accused at the house, when the deceased was in the house and offence is said to have been committed. According to her, the evidence of PW.2 cannot be given much credence. The evidence of PW.3 is artificial inasmuch as he is said to be sleeping outside the house and the offence is said to have been committed inside the house and even from his own evidence and also prosecution case, he is said to be sick and suffering from fever and therefore, he witnessing the crime is improbable. Apart from the improbability of the circumstances, the reaction, which is said to have been made, is also not proper according to her. When the presence of the accused and the deceased together is unsustainable, then the relevancy on the evidence of PW.3 is lost. However, the evidence of PW.1 does not show that when she left the house, the accused was in the house in the company of the deceased. Therefore, the evidence of PW.1 contradicts the evidence of important witness PW.3 to the effect that the accused was found in the company of the deceased on the night at the time of incident. If this piece of evidence is to be excluded from consideration, then there is doubt about the trustworthiness of PW.3. Added to that PW.3 is cited as child witness. When the learned Sessions Judge has stated that child witness is believable, if we see from the record, the age of the witness was shown as 13 by the date of filing of the charge sheet and by the date of examination of the accused in the Court, he must be aged about 14 or 15 years. Therefore, by any reason, he cannot be claimed as a child witness and in such circumstances, the Court should have opined as to whether he is under the age of 11 and can understand the questions or not and then proceed with the administration of the oath or dispensation of the oath, by way of giving reasons for dispensation of the oath. The deposition of PW.3 does not disclose as to the age of the witness on the date of examination. When the oath was not administered, there is no reason assigned for not administering the oath. Therefore, the essential quality of acceptability is lacking from the evidence of PW.3, since the evidence was taken neither on oath nor he is a child to be accepted as child witness. Therefore, from the narration of facts given by him, it appears to be an artificial version given by him, may be he was tutored to support the prosecution case. Therefore, when the witness has spoken about the incident when the oath is neither dispensed with nor administered by the Court below, the uncorroborated testimony of PW.3 cannot clinch the allegation made by the prosecution against the accused. For all the above reasons, the conviction and sentence cannot be sustained and we have no hesitation in holding that the contentions raised by the learned counsel for the accused deserves consideration and the accused is entitled for benefit of doubt. We, therefore, set aside the conviction and sentence recorded against the accused. 12. In the result, Criminal Appeal is allowed setting aside the conviction and sentence recorded by III Additional Sessions Judge, (I Fast Track Court), Nalgonda, vide Judgment, dated 26.10.2006, in Sessions Case No.249 of 2006, against the appellant/accused for the offence under Section 302 I.P.C. and accordingly, he is acquitted of the charge. The fine amount, if any, paid by the appellant/accused shall be refunded to him. The appellant/accused shall be released forthwith, if he is not required in any other crime. ______________ K.C.BHANU, J ____________________________ N.R.L.NAGESWARA RAO, J December 20, 2010 MD THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.59 OF 2007 (per Hon'ble Sri Justice N.R.L. Nageswara Rao) December 20, 2010