IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT HON'BLE SRI JUSTICE K.C.BHANU AND HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.A.No.1043 OF 2007 Date:20-01-2011 Between:- Wadde Kistaiah .. Appellant And State of A.P., Rep.by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. .. Respondent JUDGMENT:- (per Hon’ble Sri Justice N.R.L.Nageswara Rao) The appeal is filed against the conviction and sentence of the accused in Sessions Case No.460 of 2005 on the file of the IV Additional District and Sessions Judge, (Fast Track Court) at Mahabubnagar, who was convicted for the offence under Section 302 I.P.C. and sentenced to undergo imprisonment of life and also to pay fine of Rs.1,000/-, in default, to undergo simple imprisonment for two months, is the appellant herein. 2. The case of the prosecution is that the deceased Wadde Anjamma is the wife of the accused and the accused has been suspecting the fidelity of his wife. The marriage was performed five years prior to 26-11-2004. P.W.1, who is a neighbour of the accused and the deceased, has lodged a report to the police Narayanpet alleging that on 26-11-2004, at about 9 a.m., he heard some cries from the house of the accused and he went to the back side of the house and noticed that the accused had a scuffle with the deceased regarding family issues and beat her with a crow bar on her head as a result of which, the deceased fell down on the ground and there was oozing of blood from her head. The deceased was found dead. The complaint was registered as case in Crime No.130 of 2004 under Section 302 I.P.C. and investigated into. During the course of investigation, the statements of the witnesses were recorded, inquest was held over the dead body of the deceased, panchanama was conducted at the scene. The incriminating material was seized on 02- 12-2004. Accused was arrested and was sent for remand. The seized articles were sent to Forensic Science Laboratory for examination. After completion of the investigation, the police found that the accused had committed murder of the deceased suspecting her fidelity and therefore, he was charged for an offence under Section 302 I.P.C. 3. The case was taken on file as P.R.C.No.6 of 2005 by the Judicial Magistrate of First Class, Narayanpet and committed the case to the Court of Sessions and made over to the Court of IV Additional District and Sessions Judge, (Fast Track Court) at Mahabubnagar. 4. After appearance of the accused, a charge under Section 302 I.P.C. was framed, read over and explained to him for which, he pleaded not guilty. 5. On behalf of the prosecution, P.Ws.1 to 15 were examined and marked Exs.P-1 to P-15 and M.Os.1 to 5. 6. After the evidence of the prosecution is over, the accused was examined under Section 313 Cr.P.C. and got marked Exs.D-1 and D- 2. 7. After considering the evidence on record, the learned Sessions Judge found the accused guilty of the offence charged and accordingly convicted him. Aggrieved by the said judgment, the present appeal is filed. 8. Heard Sri D.Goverdhana Chary, learned counsel for the appellant and also the learned Public Prosecutor. 9. The points that arise for consideration are: “1) Whether the prosecution has proved that the accused has committed murder of the deceased? and 2) Whether the conviction and sentence imposed by the learned Sessions Judge is legal and sustainable?” 10. POINTS 1 & 2:- In support of the prosecution case, P.W.1, who is the complainant and neighbour, deposed that he gave the complaint – Ex.P-1, which was drafted at the request of the police and he does not know the facts of it and therefore, he was declared as hostile by the prosecution. P.W.2 is a relative of the accused and he spoke about the death of the deceased but he did not support the prosecution case about the cause of death of the deceased and was declared as hostile. P.W.3 is also a neighbour and did not support the prosecution case and declared as hostile. P.W.4 is a child witness and the daughter of the deceased and the accused and she spoke of the assault on the deceased by the accused with the crow bar and causing of the injuries. In the cross examination, it was sought to be made out that she did not witness the incident and in fact, the witness has volunteered that she did not see anything and does not know the cause of death. P.W.5 is a relative of the deceased and the accused. According to him, a month prior to the incident, the accused brought the deceased to her parents’ house and went away and also informed that the deceased has sustained injury to her head. Thereafter, he along with others took the deceased to Siddhartha Hospital and the deceased informed that the accused beat with hammer suspecting her character. She has been treated for 20 or 25 days as inpatient. Thereafter, the parents of the accused came and gave an assurance that the deceased will be looked after well by the accused and taken the deceased within a month. Thereafter, they came to know about the death of the deceased as the accused is said to have beaten her. The evidence of P.W.6 is about the performance of the marriage of the accused and the deceased and the birth of two children and also about the harassment of the deceased by the accused and also the information given by the deceased about the beating by the accused with a hammer and thereafter, the deceased is sent to the house of the accused on the promise given by the parents of the accused. P.W.7 is the Photographer, who has taken photos at the scene of incident. P.Ws.8 and 9 are the parents of the deceased and they spoke about the strained relations between the accused and the deceased and the deceased being brought to their house with injuries and information given by the deceased about the accused beating her and thereafter, the deceased being sent to the house of the accused and later, coming to know about the death of the deceased. P.Ws.10 to 12 did not support the prosecution case and declared as hostile. P.W.13 is the Doctor, who conducted post mortem examination and found the following injuries and issued the post mortem certificate- Ex.P-11: 1. Cut lacerated wound over the left temporal region about 6 x 2 ½ cms. with excavation of the meninges and brain tissue present, and it is ante mortem in nature. 2. A punctured wound over the occipital region 2 cm x ½ cm x 1 ½ cm. deep over occipital region, ante mortem in nature. 3. A lacerated wound over the right eyebrow about 2 cm x 1 c.m. bone deep ante mortem in nature. 4. Abrasion over the left side of fore head about 3 cm x 1 c.m x round to oval in shape. 5. A cut lacerated wound over the middle of parietal region about 4” x ½” bone deep 6. A cut lacerated wound over the right parietal region near the parietal eminence about 2 x ½” x 1 ½ ” deep ante mortem 7. An abrasion over the right Fore arm about 2 cm x 1 cm x skin deep 8. A lacerated wound over the let fore arm over the dorsal aspect about 3 cm x 1 cm x bone deep. 9. Fracture of the left temporal bone compound fracture with excavation of brain tissue seen 10. Fracture of the right temporal bone seen compound fracture with excavation of meninges and brain tissue seen. 11. Fracture of the occipital bone compound fractures”. All the above injuries are ante mortem in nature and the cause of death is due to haemorrhagic shock and head injuries due to the multiple injuries to the head. The evidence of P.Ws.14 and 15 is about the investigation done by them in this case. 11. The learned counsel for the appellant firmly contends that there is no direct evidence about the commission of the offence and P.W.4, who is examined as a child witness, is not believed by the lower Court and it is improbable to accept that she has witnessed the incident when she is not more than three years at the time of incident and the lower Court also did not consider it safe to rely upon such an evidence but the lower Court erred in considering the injuries and the circumstances, coming to a conclusion in the guilt of the accused. Therefore, the accused is entitled for acquittal. 12. On the other hand, the learned Public Prosecutor contends that there is sufficient motive for the accused to commit an offence and earlier also, the deceased was beaten by the accused and the accused has been continuing to suspect the fidelity of his wife and has committed the murder and as such, though the neighbours have turned hostile during the course of trial, the circumstances point is guilt only and none else. 13. Evidently, in this case, the evidence on record clearly goes to show that one or two months prior to the date of this incident, the accused has dropped the deceased at the house of her parents and subsequently, the deceased is said to have been taken by the accused on a promise made by his parents that the deceased will be looked after well. The fact that the deceased has informed the parents and other villagers that she was beaten by the accused with a hammer and that she was also treated at the village is not seriously disputed in the cross examination of the witnesses. Therefore, it is quite clear that for sometime prior to the date of incident, the accused has entertained a suspicion about the character of the deceased and he has also used violence against her though two children were born to him through the deceased. Therefore, it is quite clear that the motive alleged by the prosecution and the suspicion entertained by the accused against the deceased cannot be ruled out as an absolute improbability. The fact that the deceased was taken at the instance of the parents of the accused to his house about twenty days or a month prior to the incident is also not seriously disputed. The incident has happened during day time and the time of incident is said to be about 9 a.m. From the evidence of P.W.1, it is quite clear that the complaint was drafted by him but the contents were said to be dictated by the police. But however, the evidence of P.W.4, as a witness to the incident, to narrate the facts as spoken by her in chief examination cannot be taken as conclusive. Her presence, being a child aged about three years, at the time of incident and finding her parents in the house cannot be doubted. It is not the plea of the accused that apart from himself, anybody else was staying in the house along with the deceased. Therefore, the fact clearly goes to show that the accused and the deceased alone were in the house and there is no cross examination of the witnesses to show the probability of any other person entering into the house at the time of incident. When once the deceased was found in the company of the accused and was found dead, then naturally he has to explain as to under what circumstances, the deceased has received injuries and died. Therefore, the non- explanation and the denial of the circumstances appearing against the accused is strong piece of evidence. The evidence of P.W.4 about the presence of the accused and deceased together to that extent is to be accepted. The medical evidence clearly goes to show that there are several injuries on the person of the deceased. The age of the injuries is also not old and they are fresh, as per the observations in the report. In fact, it is not the case of the accused that such injuries are possible otherwise than by beating. The fact that the deceased falling down and receiving so many injuries is highly improbable. Therefore, it is quite clear that there was an assault on the deceased by the accused and evidently, such an assault is a consequence of a quarrel between himself and the deceased suspecting her fidelity earlier and also subsequently on the date of incident. The circumstances clearly goes to show that the accused alone has beaten the deceased and probably he may be having an intention to attack her but may not be having the knowledge that the injuries or the attack on her will result in her death. Therefore, taking into consideration the totality of the circumstances, the nature of the attack on the deceased and the relations between the accused and the deceased, we feel that the conviction of the accused of the offence under Section 302 I.P.C. cannot be sustained and instead, he can be convicted for the offence under Section 304 Part I I.P.C. because the accused is the person who has caused injuries and made an assault on the deceased. 14. In the result, the conviction and sentence recorded against the appellant/accused in the judgment dated 19-07-2007 in Sessions Case No.460 of 2005 on the file of IV Additional District and Sessions Judge (Fast Track Court) at Mahabubnagar for the offence under Section 302 I.P.C. are set aside, instead the accused is found guilty of the offence punishable under Section 304 Part I I.P.C., accordingly, he is convicted and sentenced to undergo Rigorous Imprisonment for seven (7) years. The period of remand underwent by the accused during investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. 15. Accordingly, the Criminal Appeal is partly allowed. _______________ K.C.BHANU, J ____​________________________ N.R.L.NAGESWARA RAO, J 20th January, 2011 AMD