THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.294 of 2007 JUDGMENT: (Per Hon’ble Sri Justice K.C.Bhanu) This appeal is directed under Section 374 (2) of the Code of Criminal Procedure, 1973, against the judgment, dated 09.01.2007, passed in S.C.No.36 of 2006, on the file of the Court of the Special Judge for trial of the offences under SC/ST (Prevention of Atrocities) Act, 1989-cum-V Additional District & Sessions Judge, Medak at Sangareddy, whereunder and whereby the appellant/A.2 was found guilty of the charge under Section 302 r/w 34 I.P.C., convicted therefor and sentenced to undergo imprisonment for LIFE and to pay a fine of Rs.10,000/-, in default, to suffer simple imprisonment for three and a half years. 2. The case of the prosecution as unfolded by the witnesses examined on its behalf, may be delineated as follows: The appellant-A.2 and A.1 are the brothers. P.Ws.1 and 4 are the children of Radhagoni Padma (hereinafter referred as “D.1”). Golla Ranemma (hereinafter referred to as “D.2”) is the sister and D.1 is the sister-in-law of A.1 and A.2. All are residents of Raikode Village. After death of her husband, D.1 was cultivating the lands, which were given to her towards her husband’s share, and P.Ws.1 and 4 were helping her in the cultivation. There were disputes between D.1 and A.1 & A.2 with regard to taking of water from the bore well. A.1 and A.2 objected D.1 for taking water from the bore well to cultivate her share of lands. D.1 planted sugar cane through the disputed bore well water. On 13.06.2005 at about 11.30 a.m while D.1 along with P.Ws.1 and 4 and D.2 was going to her fields by carrying fertilizer bag on her head, A.1 and A.2 followed them and when they reached the fields of one Saraswathamma, A.1 shouted at D.1, and asked her that “without paying the amount why you are getting water from bore well” and abused her in filthy language like “Lanja”. Thereafter, A.1 caught hold of tuft of hair of D.1, and A.2 instigated A.1 to kill her and gave an axe to him. Thereupon, A.1 hacked D.1 on her left side of the neck, chin and on left hand, as a result of which, D.1 fell down with bleeding injuries. Then D.2 fell down on the legs of A.1 and requested to leave D.1 and her children. Then A.2 instigated A.1 to kill D.2 also stating that if she is alive, she will inform about the incident to the police. Then A.1 hacked D.2 with the same axe on her right side neck and right side waist, as a result of which, she fell down. D.1 and D.2 died at the spot. Thereafter, A.1 chased P.Ws.1 and 4 for some distance. P.Ws.1 and 4 went to Raikode Village and narrated the incident to P.Ws.2 and 3, who were standing near the old bus stand, and then went to Raikode Police Station and submitted report. P.W.18, the Sub Inspector of Police, Raikode, recorded the statement of P.W.1 under Ex.P.1, registered a case in Crime No.27 of 2005 for the offence under Section 302 I.P.C, issued FIR-Ex.P.11 and sent express FIRs to all the concerned. Thereafter, he informed the same to P.W.19-C.I of Police, Zaheerabad, who recorded the statement of P.Ws.2 and 3 at Police Station, rushed to the scene of offence, and conducted inquest over the dead body of D.2 before P.Ws.14 and 17. P.W.19 secured the presence of eyewitnesses, P.Ws.5 to 7 and recorded their statements. Thereafter, he also secured the presence of P.Ws.17 and 13 and in their presence drafted the scene of offence panchanama under Ex.P.14; drawn rough sketch of scene of offence under Ex.P.5, seized fertilizer bag (M.O.1), Gampa (M.O.2), Tiffin Box (M.O.3), plates, glass, catora (M.O.4), Saree (M.O.5), Slipper (M.O.6), Slipper of D.2 (M.O.7), Slippers of A.1 (M.O.8); secured the presence of P.Ws.11 and 17 and held inquest over the dead body of D.1 and seized langa of D.1 (M.O.10), Saree of D.2 (M.O.11), Blouse of D.2 (M.O.12), petty coat of D.2 (M.O.13), controlled earth tins (4) (M.O.15), broken bangles and hair (M.O.16); took the photographs of scene of offence and dead bodies under Exs.P.12 to P.29-photos and Ex.P.30 is the negative and thereafter sent the dead bodies of D.1 and D.2 to Government Hospital, Zaheerabad for postmortem examination. On the same day at about 4.30 p.m., P.W.11-Civil Assistant Surgeon, Community Health Centre, Zaheerabad conducted autopsy over the dead bodies of D.1 and D.2 and issued Exs.P.2 and P.3-Post Mortem Certificates. On 14.06.2005, P.W.19 visited Raikode Village, secured the presence of P.Ws.8, 9, 10, 12, 15 and 16, examined and recorded their statements. Ex.P.10 is the statement of P.W.16. On 22.06.2005 P.W.18 apprehended A.2 and produced him before P.W.19, who recorded the confession report of A.2 before P.Ws.15 and 18, seized the blood stained shirt of A.2 under M.O.4 and produced him before the Judicial Magistrate of First Class, Zaheerabad, who remanded A.2 to judicial custody. After receipt of Forensic Science Laboratory Report (Ex.P.33), P.W.20-C.I of Police filed charge sheet against A.2, since A.1 was absconding. 3. The charge leveled against the appellant-A.2 is that he along with his brother Radhagoni Nagabhushanam @ Bushappa-A.1 (now absconding) on 13.06.2005 at about 10.30 a.m in the fields in Survey No.55/a/a at Raikode Village, in furtherance of his common intention committed murder intentionally causing the deaths of Radhagoni Padma (D.1) and Golla Ranamma (D.2) and thereby committed an offence punishable under Section 302 r/w 34 IPC. 4 . When the said 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 20 were examined and Exs.P1 to P.33 were marked, besides the case properties M.Os.1 to 16. 6. After closure of prosecution side evidence, the appellant-A.2 was examined under Section 313 Cr.P.C. to explain the incriminating evidence appearing against him in the evidence of prosecution witnesses. The accused denied the same. No oral or documentary evidence was adduced on behalf of defence. 7. The trial Court, after considering the evidence of prosecution witnesses, especially P.Ws.1 and 4, who were present at the time of incident, found the appellant-A.2 guilty and accordingly convicted and sentenced him as stated supra. Challenging the same, the present appeal is filed. 8. Now, the point for determination is whether the prosecution has proved its case beyond reasonable doubt for the charge levelled against A.2 and whether the judgment of the trial Court is correct, legal and proper? 9. The learned Senior Counsel appearing for the appellant-A.2 contended that the evidence of P.Ws.1 and 4, who are child witnesses, cannot be a sole basis for conviction of the appellant, inasmuch as they were tutored by the interested persons; that P.Ws.1 and 4 were aged about 12 and 10 years respectively at the time of incident and that their presence at the time of incident is very much doubtful in view of their own showing that they were studying 6th and 5th Classes respectively at the time of incident; that as the incident is alleged to have taken place on the working day of the school, they might have gone to the school, and therefore, it is highly improbable to believe their presence at the scene of occurrence, which is near the lands of the deceased; that if really P.Ws.1 and 4 had seen the incident, they would have informed about the same to their grandparents-P.Ws.5 and 6; that the evidence of P.Ws.1 and 4 is not consistent with regard to the actual manner of attack; that their presence was not spoken to by P.Ws.8 and 9 at the relevant point of time of occurrence; and that it is not safe to place any implicit reliance on the evidence of P.Ws.1 and 4 so as to convict appellant-A.2 and hence, he prays to set aside the conviction and sentence recorded against A.2. 10. On the other hand, the learned counsel representing the learned Public Prosecutor contended that within one hour after the incident, the criminal law was set into motion by P.W.1 by lodging Ex.P.1 report; that immediately after the incident, they informed about the incident to P.Ws.2 and 3; that there was no scope or possibility for these witnesses to foist a false case against A.2; that the evidence of P.W.1 is completely in corroboration with the recitals in Ex.P.1, that the trial Court after elaborate consideration of the evidence available on record, rightly found A.2 guilty, as he shared common intention in furtherance of his acts with A.1, and therefore, there are absolutely no grounds to interfere with the conviction and sentence recorded by the trial Court. 11. P.W.18 is the Sub Inspector of Police, who after registration of case upon receipt of Ex.P.1 from P.W.1, held inquest over the dead body of D.2 in the presence of P.Ws.14 and 17 under issued Ex.P.6- inquest report. The Inquest mediators opined that D.2 died of injuries sustained by her. P.W.19 held inquest on the dead body of D.1 in the presence of P.Ws.14 and 17 under Ex.P.6 inquest report. The opinion of Inquest mediators is that D.1 died due to injuries. 12. P.W.11 is the doctor, who conducted autopsy over the dead body of D.2 on 13.06.2005 at about 4.30 p.m and found the following injuries: “1. 3x2 cm bone deep incised injury on the left lower 1/3 of fore arm. 2. Fracture on both bones left fore arm. 3. 5 x 3 cm bone deep incised injury on the left side of the neck. 4. Carotid artery cut on the left side. 5. 2 x 2 bone deep laceration injury on the chin.” On the same date at about 5.30 p.m., he conducted autopsy over the dead body of D.1 and found the following injuries: “1. 4x3 bone deep incised wound on the left side nape of Neck. 2. Ear lobule also chopped left side. 3. 4 x 2 bone deep incised wound on the left side of neck 2 cm below the injury No.1 4. 2 x 1 bone deep incised wound on the right side of the neck. 5. 4x2 bone deep laceration on the back of neck. 6. Fracture vertebra C3 level.” He issued Ex.P.2-postmortem report in respect of D.2 opining that D.2 died due to haemoragic shock, due to cut injury to carotid artery left, and issued Ex.P.3-postmortem report in respect of D.1 opining that D.1 died due to cut injury on the spinal cord at the level of C.3. 13. Practically, the evidence of P.W.11 and the recitals in Exs.P.2 and P.3 remained unchallenged. Therefore, from the medical evidence, it leaves no room to doubt that the deaths of the deceased are homicidal in nature. 14. P.W.19, who is the Circle Inspector of Police, visited the scene of occurrence, observed the same in the presence of P.Ws.13 and 17, and drafted scene of offence panchanama under Ex.P.4. He seized M.O.1-fertilizer bag, M.O.2-gampa, M.O.3-tiffin boxes, M.O.4-plates, glass, catora, M.O.5-saree, M.O.6-slipper of D.1, M.O.7-slipper of D.2, M.O.8-slippers of A.1. Thereafter, he prepared the rough sketch of scene of offence under Ex.P.5. Exs.P.4 and P.5 prepared by P.W.19 in the presence of P.Ws.13 and 17 and seizure of M.Os.1 to 7 at the scene of occurrence, remained unchallenged. Even the appellant-A.2 had not seriously denied or disputed about the scene of occurrence, which is near the land of Saraswathamma. 15. P.W.5, who is the father of the accused, deposed that P.Ws.1 and 4 are children of his second son, who died six years prior to his deposition; that A.2 is his elder son and A.1 is his third son; that he was having six acres of land; that he gave four acres of land to his three sons equally and kept the remaining two acres of land under his cultivation; that he dug a bore well in his two acres of land; that the bore well was situated in the lands of his second and third sons and that the said bore well was being used jointly by his three sons. Three days prior to the incident, A.1 and A.2 were drawing water to their lands through the said bore well. Then D.1, who is none other than the wife of his second son, asked him for drawing of water to her lands, for which he agreed. Thereafter, D.1 purchased sugar-cane seeds and sowed in her land. On the date of incident, D.1 and D.2 were carrying fertilizer bags, P.W.1 was carrying iron gampa, and P.W.4 was carrying she buffalo tied with rope to its neck. At about 11 or 11.30 a.m., P.Ws.1 and 4 along with P.Ws.2 and 3 came to him and stated that A.1 and A.2 killed D.1 and D.2 with an axe. Then all of them went to Police Station, Raikode and from there to the scene of offence, which is situated at the lands of Saraswathamma. 16. The entire case rests upon the evidence of P.Ws.1 and 4, child witnesses. If their presence is found to be probable and convincing, then they could be the best witnesses to speak about the incident. No doubt P.Ws.1 and 4 are the child witnesses, who were at the age of 12 and 10 years respectively at the time of incident, but, the trial Court, by putting some preliminary questions, and giving rational answers by them, came to the conclusion that they are competent to speak about the incident. Simply because they are child witnesses, their evidence cannot be disbelieved on that ground. On evaluating and assessing the evidence of child witnesses, if their evidence is put in the category of wholly reliable, then there is no difficulty in accepting the same. But only thing is that their evidence has to be accepted, after close scrutiny because they may be prone to tutoring. When the circumstances do not indicate that there was element of tutoring to these witnesses so as to implicate the accused falsely, then there is no difficulty in rejecting their evidence. 17. Now it has to be seen whether the presence of P.Ws.1 and 4 is probable and convincing at the time of incident and whether there is any element of tutoring by the interested persons? 18. No doubt it is elicited in the cross-examination of P.Ws.1 and 4 that their schools were reopened just few days prior to the date of incident, and at that time both these witnesses were studying 5th and 6th classes respectively and the incident has taken place on a working day. In normal circumstances, P.Ws.1 and 4 ought to be present in the school. The incident has taken place on 13.06.2005 and the schools were reopened after summer vacation in the month of June, 2005 only. When the schools were reopened, it is quite probable for the children not to go for few days immediately after reopening. Because the incident occurred on a working day, it cannot be a ground to presume that they ought to have been present in the school. There is every possibility of not going to the school by P.Ws.1. and 4, as the school was reopened just few days prior to the date of incident. The possibility of these two witnesses to attend the auspicious day of seeding sugar cane in the land cannot be ruled out. 19. P.W.1 was carrying Tiffin box in a steel vessel, whereas P.W.4 was carrying one she buffalo tied with a rope. Both the deceased were carrying fertilizer bags on their heads. In view of the close relationship with the accused, if really, P.Ws.1 and 4 were not present at the time of incident, it would be very difficult for them to narrate the incident immediately to P.Ws.2 and3. The time gap between the time of occurrence and lodging First Information Report is considerably long, then there is scope for tutoring the child witnesses to speak against the accused. P.Ws.1 and 4 even did not meet any of their close relations including the grandparents-P.Ws.5 and 6. Immediately after seeing the incident, they were coming from the scene to village by weeping. At the old bus stand, these two witnesses were questioned by P.Ws.2 and 3 as to why they were weeping, for which, they narrated the incident to them. Then immediately all of them went to police station, which is located at a distance of 5 K.ms. from the village. Therefore, within one hour after the incident, the earliest version has come on record. The earliest version would clearly go to show that when P.Ws.1 and 4 were going to the fields along with their mother (D.1) and aunt (D.2), the incident has taken place. 20. The evidence of P.W.1 would go to show that when they reached the land of Saraswathamma, A.1 shouted at her mother (D.1) by saying that “Agave Lanja”. Therefore, her mother stopped there. Then A.1 asked her mother to keep the fertilizers bag from the head on the floor. When she did so, A.1 questioned her stating that without paying any amount, why she was getting water from the bore well and abused her in filthy language like “Lanja”. Thereafter, A.1 caught hold of tuft of hair of her mother. Then A.2 instigated A.1 by saying better to hack her with an axe then the problem will be solved, and immediately gave the axe to A.1 to hack her mother. Further, A.2 stated that there will not be any problem if her mother dies. Then A.1 hacked her mother on the left side of the neck and also on her chin, as a result, her mother fell down with bleeding injuries. At that time, her aunt (D.2), who was accompanying D.1, fell down on the legs of A.1 stating that not to hack her because she was having children. Then A.2 stated that “Deenni yenduku unchutavura idi unte policelaku chepputadi deennikuda esaira” (why you are leaving D.2, if you leave her certainly she will go and state before the police about this incident, so better kill her). Then immediately, A.1 hacked D.2 with the same axe on the right side of neck and waist, as a result, D.2 fell down with bleeding injuries. Then both the accused chased P.Ws.1 and 4 to some distance. This specific evidence of P.W.1 with regard to the appellant- A.2 instigating A.1 to kill both the deceased was not spoken to by P.W.4. P.W.4 only stated that when they reached near the land of Saraswathamma, A.1 and A.2 came there. A.2 gave an axe to A.1 and A.1 hacked his mother’s neck (left side) with an axe. Again A.1 hacked D.2 on her neck and left side of the stomach near the breast, due to which, they fell down with bleeding injuries. Thereafter, both the accused chased him and his sister (P.W.1). So far as the role of appellant-A.2 with regard to instigating A.1 to hack both the deceased, the same has not been spoken to by P.W.4. Perhaps, he may not have heard about the instigation by A.2, and hence he might not have stated the same in his evidence. Therefore, for that reason it cannot be said that there is a discrepancy in the evidence of P.Ws.1 and .4. On this trivial discrepancy, the evidence of P.Ws.1 and 4 cannot be disbelieved. 21. The earliest version of P.W.1 in Ex.P.1 would clearly go to show that on the date of incident at about 11.30 a.m., while herself (P.W.1), her mother (D.1) her aunt (D.2) and her younger brother (P.W.4) were going to their land with the manure to use in the sugar cane field, and when they reached near the field of Saraswathamma, A.1 and A.2 came there; that A.1 caught hold of tuft of hair of her mother and started beating her duly abusing saying “Boru roopalu ivvakunda neevu neellu yetla pettukuntavu lanja”. Then A.2 gave an axe, which he was possessing, to A.1 and instigated that “Champu lanjanu peeda pothundi”. Then A.1 beat her mother with the axe on her neck. When D.2 intervened to rescue her mother, A.1 beat D.2 also with the same axe on her neck under the left jaw and killed both of them. Due to fear herself and her brother ran away from the spot and informed the matter to Gundla Kalavathi-P.W.2 and Pasha-P.W.3. Absolutely, P.Ws.1 and 4 have no grouse or enmity against the accused to speak falsely against them. If really they were present in the school as contended by the accused, it is difficult to narrate the sequence of events that took place during the course of occurrence. 22. The evidence of P.Ws.2 and 3 would go to show that on the date of incident at about 11 or 11.30 a.m., when they were standing near bus stand, both P.Ws.1 and 4 were coming by weeping and when they enquired them, P.W.1 stated that A.1 and A.2 killed D.1 and D.2 at the fields of Saraswathamma. There is no scope or possibility for P.Ws.1 and 4 to meet any of their relations. There is every scope and possibility for P.Ws.2 and 3 to question P.Ws.1 and 4 as to why they were weeping, and then it is quite natural for P.Ws.1 and 4 to inform about the ghastly incident, which took place in their presence. There was no time at all for interested persons to tutor these witnesses to implicate the accused falsely. The evidence of P.Ws.2 and 3 is admissible under Section 6 of the Indian Evidence Act, 1872. No doubt, the evidence of P.Ws.2 and 3 is in the nature of hearsay, but the doctrine of res gestae is an exception to the hearsay rule. Facts, which may be proved, as part of res gestae must be facts other than those in issue. Furthermore, these facts must form part of that very transaction and thus be connected with the facts in issue. The statement in order to be a part of res gestae must have been made substantially contemporaneously with the act or immediately after it, so that there is no opportunity for reflection or fabrication. 23. P.Ws.1 and 4 even did not meet any relatives on the way to the village and they were not accompanied by any one. Therefore, the question of tutoring within a short span of time does not arise. Similarly, they were taken to the police station and the statement of P.W.1 was recorded by P.W.18, who categorically stated that on 13.06.2005 at about 12 noon while he was in the police station P.W.1 came there and then he recorded the statement of P.W.1. The fact that P.W.18 recorded the statement of P.W.1 has not been denied or disputed in the cross-examination. When it is shown that Ex.P.1 was truly and correctly recorded by P.W.18, it can be used for corroborating the evidence of P.W.1. Since Ex.P.1 has not come into existence after due deliberations, the earliest statement under Ex.P.1 can be relied upon to corroborate the evidence of P.W.1. Therefore, the earliest version coupled with the evidence of P.W.1 would clearly go to show that A.2 had shared common intention with A.1 in doing away the lives of his close relations, who are none other than his brother’s wife and sister. 24. No doubt, no specific overt acts are attributed against A.2 but his acts do suggest that in furtherance of their common intention only, A.1 hacked both the deceased, as instigated by A.2. The evidence of P.Ws.1 and 4 would go to show that A.2 is the person who handed over the axe to A.1 and instigated him to kill D.1. When D.2 prayed not to cause any injuries to D.1, again A.2 instigated A.1 to kill D.2 also. Therefore, the role played by A.2 would clearly suggest that he shared common intention with A.1 so as to eliminate both the deceased because of some disputes with regard to not paying certain amount towards drawing of water