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 THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL No.745 of 2007 Between: Sayeed Hassan Vali ..... APPELLANT AND 1. Inspector of Police, Gooty 2. State represented by Public Prosecutor. ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL No.745 OF 2007 JUDGMENT: (Per Hon'ble Sri Justice N.R.L. Nageswara Rao) The accused in Sessions Case No.605 of 2002 on the file of IV Additional Sessions Judge, ( Fast Track Court), Ananthapur, who was convicted for the offence punishable 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.500/-, 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 accused was a vagabond addicted to commit offences. The deceased-Shaik Hasmath Bee was a resident of Gooty. P.Ws.1 to 3 said to have been residing near her house as adjacent neighbours. The incident said to have taken place on the intervening night of 12/13.04.2002. The accused, two months prior to the offence, committed theft in the house of the deceased and he was apprehended and chastised by the family members of the deceased and returned the properties to her. About ten days prior to the occurrence, the accused committed to kill the deceased by throttling her neck, but he could not do so. While so, on the intervening night of 12/13.04.2002, when the deceased was sleeping on a cot in front of her house, the accused went there and threw a big boulder on her head. This was witnessed by P.Ws.1 to 3, who came to the scene immediately and saw the accused running away from the scene. Thereafter P.W.1 informed the police and lodged a complaint, which was registered as a case in Crime No.41 of 2002 and investigated into. During the course of investigation, statements of witnesses were recorded and the panchanama of the scene and inquest was held on the dead body of the deceased and the dead body was sent for postmortem examination. During the course of investigation, the accused was arrested on 18.04.2002 and after interrogation he was sent to remand. After completion of investigation, the accused was charged for the offence under Section 302 I.P.C. The case was taken on file as P.R.C.No.29 of 2002 by the Judicial Magistrate of First Class, Gooty, and committed to the Court of Sessions 3. After the appearance of the accused before the learned Sessions 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 9 and got marked Exs.P-1 to P-9, besides case properties M.Os.1 to 16. 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 by the accused. 7. Since the accused has no capacity to defend the case, Sri B.Raj Kiran, has been appointed as legal aid counsel. Heard the legal aid counsel appearing 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 the case beyond all reasonable doubt for the guilt of the offence, for which the accused was charged? 2) Whether the sentence imposed by the learned Sessions Judge against the accused is legal and sustainable? 9. POINT NOS.1 & 2: In support of the prosecution case, P.W.1, who is the opposite neighbour of the deceased, deposed that the accused is a vagabond and two months prior to the incident, the accused committed theft in the house of the deceased and thereafter ten days prior to the incident the accused also attempted to kill the deceased. On the date of the incident, as it is a day prior to Ugadi Festival, all the people are attending to decorations in the house. When they were sleeping during mid night, they heard a sound and woke up and saw that the accused hurling a stone on the deceased for the second time. When the accused hurled the stone first time, for the sound she woke up. Then she raised cries, the neighbours i.e., P.Ws.2 and 3 and others came and seen them, the accused ran away though they attempted to apprehended him. Thereafter, the accused pelted stones against them also. To prove the capacity to identify the accused running away, he also deposed the availability of a street light in front of the house of the deceased. Thereafter, they have gone to the police station and informed them about the incident and also lodged a complaint Ex.P1. The police came and conducted inquest and panchanama of the scene and also seized the incriminating material available at the scene and M.O.1 boulder used by the accused for the commission of offence; M.O.2 is the Cot, in which the deceased was laying. In the cross-examination, P.W.1 stated that he is Assistant Lineman in Electricity Department and he does not know that the deceased was a widow, but he heard that the husband of the deceased was said to have been a Government Employee. He does not know about the dispute between the deceased and her step son. He denied that he has got any money dealings with the deceased or any other relationship with her. He also denied that he kept the entire money and gold of the deceased. According to him, he went to sleep at about 10.30 or 11.00 p.m.; and the distance between the door of his house and the compound wall of the house of the deceased is about 15 feet which is just opposite to his house. He also spoke about P.Ws.2 and 3 coming to the scene immediately on hearing his cries. He denied that as per the dictations of the police, Ex.P.1 was drafted and he has also denied that he has got enmity with the accused and, therefore, the accused was falsely implicated and a false complaint was given. The material evidence of P.W.1 is also supported by P.Ws.2 and 3, who are neighbours, and they also spoke about their coming to the scene on hearing the cries of P.W.1 and noticing the deceased with injuries and also seen the accused coming away from the scene. Much of the cross-examination was done, but credibility was interested in implicating the accused. Credibility about truthfulness or interestedness in implicating the accused could not be established. Their credibility is impeached. P.W.4 is the wife of the brother of the deceased, who also spoke about her coming to the Village after coming to know about the death of the deceased. P.W.5 is the son of the deceased and he came to the Village after getting information about the incident. The evidence of P.W.6 - Doctor is about conducting of postmortem examination on the dead body of the deceased on 13.04.2002 and he found the following the injuries: “1. A Lacurated wound of left parietal region of Head, extending to left temporal and occipital region of head and on the left side 5”x2” bone deep. 2. On opening the body I found fracture of left parietal temporal and occipital bones beneath the injury mentioned above. 3. Menings beneath conjucted and brain benath also conjusted and the Cranial gravity contains 2 Ozunces of dark coloured fluid blood. Right side of the brain normal cut section conjustion present. 4. The other parts of the body normal. Stomach empty.” He opined that the injuries are possible with a stone like M.O.1. P.W.7 – Village Panchayat Secretary spoke about his presence at the time of panchaname of the scene and inquest and also apprehending the accused on 18.04.2002. He also spoke about giving the confessional statement by the accused and producing M.O.15 , blood stained shirt and M.O.16 blood stained pant of the accused. The evidence of P.Ws.8 and 9 is about the investigation done by them in this case. 10. The learned Sessions Judge accepted the direct evidence of P.Ws.1 to 3, which is corroborative of the fact that on the night of the incident, the accused attacked the deceased by hurling the stone and killed her. 11. Learned counsel for the accused contended that though the motive is said to have been attributed to the deceased about the prime instance, there is no proof and no complaints were given and therefore, the motive to commit the offence is not established. Evidently, there is direct evidence about the attack of the accused in committing the murder of the deceased and, in such circumstances, motive is irrelevant. However, even on the prior occasions, when the accused is said to have committed theft of gold ornaments, he was apprehended and returned back the gold ornaments. Therefore, the possibility of giving the complaint does not arise. On the second occasion also, when he attempted to beat the deceased, he was apprehended. Therefore, these two incidents could not be supported by any evidence on record. But, there is a positive evidence of P.W.1, who spoke about the incident. As rightly found by the learned Sessions Judge, the evidence of P.Ws.1 to 3 is corroborative and there is no reason to discredit their testimony. There is absolutely no motive to implicate the accused. If at all the relationship between P.W.1 and the deceased was close, there is no reason as to why he should kill her when she has got money and gold. The reason sought to discard the evidence of P.W.1 is against natural circumstances. 12. Learned counsel for the accused contended that though the accused is shown to be arrested on 18.04.2002, in fact the evidence on record disclosed that immediately after the incident within two or three hours, the accused was apprehended and brought to the police station. Even if this version is accepted to be true, which does not disprove the death of the deceased, since by then the crime has been committed and there is no explanation from the accused as to why he should be detained by the police. 13. Further more, the blood stained cloths were seized and item Nos.8 and 9 bears the similar blood group found on the clothes of the deceased, as can be seen from the Forensic Science Laboratory report, Ex.P9. Merely, because the police did not immediately record the statement from the accused, the direct evidence of P.Ws.1 to 3 cannot be rejected. 14. The learned counsel for the appellant also relied upon a decision reported in Motilal V.State of Rajasthan[1], wherein the delay in sending the First Information Report to the Court is not properly accepted and the accused was found to be entitled for acquittal. 15. The circumstances in the above case are not similar to the facts of the present case. Since immediately after the incident, P.W.1 has gone to the police station along with P.Ws.2 and 3 and a report was drafted, there is no element of implication of anybody in this case, and therefore, the delay, even if any, cannot be taken as fatal to the prosecution case. Therefore, we have no hesitation to hold that the learned Sessions Judge has rightly accepted the prosecution case and the evidence of P.Ws.1 to 3 and found the accused guilty. 16. Accordingly, the appeal is dismissed confirming the conviction and sentence passed by the learned Sessions Judge against the appellant-accused. _______________ K.C. BHANU, J ____________________________ N.R.L.NAGESWARA RAO, J DECEMBER 20, 2010. YVL [1] 2009 Cri.L.J.3971