THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU Criminal Appeal No.1761 of 2006 Date: 02-3-2010 Between Bejawada Srinivasa Rao … Appellant/Accused and State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court, Hyderabad … Respondent THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU Criminal Appeal No.1761 of 2006 Oral Judgment: (per D.S.R.Varma, J.) Heard Sri C.Padmanabha Reddy, learned Senior Counsel, representing Sri C.Praveen Kumar, learned Counsel for the appellant-accused and the learned Public Prosecutor for the respondent-State. 2. Sole accused is the appellant, challenging the order of conviction and sentences dated 08-12-2006 in Sessions Case No.315 of 2006 passed by the Principal Sessions Judge, Khammam. 3. The case of prosecution, in brief, is – That one Mallela Srinivasa Rao (hereinafter referred to as ‘the deceased’) had illicit intimacy with the wife of accused and in view of that, the accused bore grudge against the deceased and waiting for an opportunity to kill him; that on the fateful night i.e., 26/27-4-2005 at around 1 a.m., when the deceased was sleeping on a cot along with his wife P.W.1 under a pandal in front of their house, all of a sudden P.W.1 heard the cries of her husband and woke up and saw the accused axing the deceased with an axe; that when she tried to intervene, the accused also gave a blow, perhaps in an attempt to ward of that blow, she also received another injury on her left hand; that thereupon, the accused fled away from the scene of offence; that at that point of time, hearing the cries, some other people also gathered, by which time, the accused already put to his heels and that however, it was only P.W.8, who saw the accused going with an axe in his hand. Subsequently, it is the case of the prosecution that on the very next day, the accused went to P.W.9 and narrated the circumstances, under which he resorted to kill the deceased and confessed his guilt and the statement of P.W.9 recorded by the Judicial Magistrate of First Class, Madhira, under Section 164 of Cr.P.C., was referred to the Police; that the injured/deceased did not die instantaneously; that he was shifted to the hospital, where he was declared as dead; that the doctor P.W.14 conducted autopsy over the body of deceased and issued Ex.P-14 Post-Mortem Examination Report; that the cause of death was found to be shock and haemorrhage due to multiple simple and grievous injuries and that he also examined P.W.1 and issued Ex.P-15 Wound Certificate. It is the further case of prosecution that at the instance of accused, the axe M.O.1 was recovered; that after receiving Ex.P-1 report from P.W.1, the investigation was pressed into service and that after completing all the formalities, a charge-sheet was filed against the accused. 4. Charges under Sections 302 and 324 of IPC were framed, read over and explained to the accused for which, he pleaded not guilty and claimed to be tried. 5. In support of the case of prosecution, P.Ws.1 to 16 were examined and Exs.P-1 to P-18 and M.Os.1 to 6 were marked. In defence, D.Ws.1 and 2 were examined and no documents were marked. 6. The trial Court after arriving at the conclusion that the accused alone was responsible for the death of deceased, recorded the order of conviction against the accused and sentenced him to undergo life imprisonment for the offence punishable under Section 302 of IPC and also to pay a fine of Rs.200/-, in default to suffer simple imprisonment for one month and also sentenced him to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 324 of IPC. 7. Aggrieved thereof, the accused has preferred the present appeal. 8. The point for consideration is as to whether the trial Court was right in appreciating the evidence on record while holding that the accused was the sole responsible person for the death of deceased ? 9 . Point:- The entire case of prosecution rests on the evidence of P.Ws.1, 8, 9, 13 and 14, along with Ex.P-1 report, Ex.P-13 admissible portion marked in recovery panchanama of M.O.1, Ex.P-14 Post-Mortem Examination Report, Ex.P-15 Wound Certificate of P.W.1 and Ex.P-18 Forensic Science Laboratory Report. 10. The other evidence on record is not much relevant nor is capable of changing the course of the decision. Since the other piece of evidence is not relied on much, we deal with only the above evidence on record in order to arrive at a conclusion. 11. P.W.1 is the wife of the deceased and the only eyewitness to the incident, who stated that when she was sleeping along with the deceased on the fateful night at about 1 a.m., she heard the cries of the deceased and woke up and saw the accused axing the deceased and when she was trying to intervene, she also received an injury on her left hand. Upon hearing the cries, the neighbours also came running and among them, P.W.8 saw the accused going away with the axe. This is the material part of the evidence of P.W.1. 12. P.W.8 corroborates the evidence of P.W.1. Though he came subsequent to the commission of the offence, but, almost simultaneously. Moreover, at that point of time, it is only the accused, who was seen going along with an axe in his hand and the deceased was injured with the heavy weapon like axe and also as was informed by P.W.1. Therefore, the evidence of P.W.8 can be treated as substantive and corroborative piece of evidence. 13. P.W.9 is the person, before whom the accused allegedly made an extra judicial confession. But, from his cross-examination, it appears that there was no much proximity, in any manner, between the accused and P.W.9. 14. It is settled law that an extra judicial confession would normally be relevant, only when there is a categorical proximity between the two persons and the proximity should be in such a way and of such quality, that would arise confidence in the mind of the court. 15. With the little acquaintance P.W.9 had with the accused, we cannot place much reliance on the extra judicial confession alleged to have been made by the accused to P.W.9. Of course, it can partially be taken as a corroborative piece of evidence, but we are of the view that it is not very safe to take the testimony of P.W.9 into consideration. Therefore, we are not prepared to place any reliance on his evidence. 16. Coming to the evidence of P.W.13, it could be seen that he is the person, who is a stranger to the entire incident, was called upon by the Investigating Agency to record the confessional statement of the accused. He deposed that in his presence, the accused confessed the guilt. The only piece of evidence that is admissible in law is to the limited extent of the accused leading to the place where the weapon i.e., M.O.1 was kept and the same was recovered. 17. In other words, the place where M.O.1, which was the instrument used in killing the deceased, was in the exclusive knowledge of the accused only and but for his revelation as to its existence, the same could not have been recovered at all. 18. Therefore, the evidence of P.W.13 insofar as the accused leading him and the Police to the place where the axe was kept and identifying the weapon, is a fact that is to be necessarily taken into account. 1 9 . Nextly, the doctor P.W.14, who conducted autopsy over the body of deceased and issued Ex.P-14 Post-Mortem Examination Report, stated that the injuries suffered by the deceased are as under: (1) Laceration seen from medial 2/3rd of upper lip extending to left nasal alone, measuring 2½” x 1½“ x 1½“ x inch. It was simple in nature; (2) Laceration seen over ½” below the root of nose, extending to right nasalabial fold, measuring 3 x 2 x 1” inch with underlying fracture of maxillary bone and haemotoma of 2 cm x 1 cm grievous in nature; (3) Laceration seen ½ inch above left eye brow extending to medial canthus of right eye of 3 x 2 x 2 inch with underlying communicated fracture of frontal bone and haemotoma present on cerebrum of 2 cms, grievous in nature; (4) Laceration seen; 2 cms lateral to the lateral canthus of left eye extending to left frontal parietal region with underlying fracture of frontal and left parietal bone. Haemotoma was seen of 2 inch. Brain matter expelled out, ante mortem, and grievous in nature; (5) Laceration seen from bregma extending to left temporal region with underlying fracture of tempero parietal bone of communited in nature. Brain matter expelled out. Ante mortem and grievous. 20. The doctor P.W.14 also examined P.W.1 and issued Ex.P-15 Wound Certificate. He found the following injuries: (1) Laceration measuring 5 x 2 inches over left palm extending from base of middle finger, horizontally including ring finger and base of little finger on palmar aspect, simple in nature; (2) Abrasion 2 x 1 inch over the left leg middle 1/3rd caused by blunt weapon and it is simple in nature. 21. The learned Senior Counsel had pointed out that all the injuries suffered by the deceased as well as P.W.1 are only lacerated injuries. But, both in Ex.P-1 Report as well as in the deposition, P.W.1 stated that the deceased was axed/hacked and in which event, the nature of the wound would certainly be different but not a laceration. 22. But, it is to be remembered that both in his chief- examination as well as in the cross-examination, the doctor P.W.14 had categorically stated that the possibility of the deceased as well as P.W.1 receiving those injuries with the butt end of the axe, cannot be ruled out. Therefore, it implies that the injuries suffered by the deceased as well as P.W.1, to have either been received with the sharper side of the weapon or on the reverse side of the axe. 23. ‘Axing’ or ‘hacking’ are the normal expressions when a weapon was used. In other words, if a weapon like sword, knife or axe, which are capable of inflicting deep cut injury, would normally be, is used, the general expression would be that somebody was axed or hacked, depending upon the nature of the weapon. In both the cases, the weapon would be a sharp weapon. 24. The injuries received by the deceased as well as P.W.1 are identified by the doctor as lacerated injuries. ‘Laceration’ as per The New Oxford Dictionary of English, is a deep cut injury into the flesh or skin. 25. In the instant case, the doctor had stated that these injuries could have been caused with the reverse side of the axe also. This is quite possible from the nature of the other injuries. The other injuries performed on the deceased are fractures on the parietal region and frontal and left parietal bone and it is also noticed that brain matter expelled out ante-mortem. 26. Therefore, it is quite possible that these fractures could have been caused by the blunt side of the butt of the axe and the other injuries could be with the sharper side of the weapon. Even otherwise, as the doctor pointed out that the lacerated injuries also could have been caused by the butt part of the axe also, merely because P.W.1 stated that the deceased was axed, there need not necessarily be a deep sharp clear cut injuries. 27. Another possibility might be that the deceased might have been caused fractured injuries on his head and later the other injuries, which are milder in form, compared to the fatal injuries because of which, the brain part also had come out. Therefore, whatever might be the sequence of causing of the injuries, the fact appears to be remained is, the accused inflicted grievous and fatal injuries on the deceased with an axe, the part of the axe is not material, more particularly when the weapon was recovered. 28. It is further to be noticed that the axe, which was recovered from the accused at his instance, was sent to the Forensic Science Laboratory and the FSL Report was to the effect that there was human blood found on the weapon, of course blood group was not determined because much long after the offence took place, the recovery of axe was effected. But, still, finding blood on the axe, which was recovered at the instance of the accused, is only an indicative factor that it was the same weapon that was used to kill the deceased. Therefore, this evidence cannot be extricated from consideration. 29. Further, the evidence of P.W.1 would only strengthen the situation. The injuries suffered by P.W.1 as mentioned in Ex.P-15 Wound Certificate would only show that she was present at the scene of offence when the offence took place and there is every possibility for her to identify the accused. Therefore, her evidence coupled with the injuries suffered by her, would further strengthen the case of prosecution and we have no doubt whatsoever to have the second thought in order to arrive at a different conclusion than the one arrived at by the trial Court. 30. In the result, the criminal appeal is dismissed, confirming the judgment under appeal. __________________ JUSTICE D.S.R.VARMA _______________________________ JUSTICE SAMUDRALA GOVINDARAJULU 02nd March, 2010. Ak