THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No.182 of 2008 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) The appellant/sole accused was tried for the oﬀences under Sections 302 and 309 I.P.C by II Additional Sessions Judge, Nalgonda at Suryapet in S.C.No.265 of 2007, found guilty of the said oﬀences, and accordingly convicted for the oﬀence under Section 302 I.P.C and sentenced to undergo imprisonment for life. He was also convicted for the oﬀence under Section 309 I.P.C and sentenced to undergo simple imprisonment for three months. However, no ﬁne amount was imposed on the appellant since he was already in jail. Challenging the conviction and sentence, the appellant preferred this appeal. The substance of the charges framed against the accused is that on 10.06.2002 at 1.00 p.m at Nadigudem Village, he caused death of his legally wedded wife Kumbham Pichamma (hereinafter referred to as ‘the deceased’) by axing her indiscriminately, as she did not give money to him to consume liquor, and thereby committed an oﬀence punishable under Section 302 I.P.C, and that on the same date, time and place, he attempted to commit suicide by cutting his throat and right wrist joint with a sickle and thereby committed an oﬀence punishable under Section 309 I.P.C. The accused is the husband of the deceased. P.W.1 is the mother-in-law of the deceased and mother of the accused. P.W.2 is the younger brother of the accused and brother-in-law of the deceased. P.W.3 is the daughter of the accused and the deceased. P.W.4 is the mother of the deceased. P.W.5 is the elder brother of the deceased. All are residents of Nadigudem Village. The case of the prosecution, as unfolded during the trial, is as under: At about 14 years prior to the incident, the accused married the deceased as his second wife, had a conjugal life with her and blessed with a daughter. Subsequently, the accused addicted to alcohol, and used to move here and there without attending coolie work. Whenever the deceased advised the accused to attend coolie work, he used to quarrel with her. Since the accused used to harass the deceased demanding money, she went to her parents’ house along with the child. Later, the accused married one Lingamma as his third wife, but she also vexed with the attitude of the accused and committed suicide. As his efforts to marry another woman failed, he compromised with the deceased, six years prior to the occurrence, in the presence of the caste elders and brought the deceased to Nadigudem Village and started leading conjugal life with her. The accused did not discontinue his habit of consuming liquor and used to quarrel with the deceased frequently. As the accused fell sick due to consuming alcohol regularly, the deceased took him to a Hospital at Kodad for treatment on 10.06.2006 and returned home. On the same day at about 1.00 p.m., while the deceased, accused and their daughter-P.W.3 were present in their hut, and while the deceased was preparing to have lunch, the accused demanded her to give Rs.120/- to consume alcohol. When the deceased refused to give the money, he picked up an axe available in the house and hacked her indiscriminately. Then immediately P.W.3 rushed to the house of her paternal grandmother-P.W.1 and informed about the incident. Then P.W.1, P.W.3 and others rushed to the hut and found the deceased in a pool of blood and the accused attempting to commit suicide by cutting his throat with a sickle available in the house. On hearing the cries, the neighbours including P.Ws.6 and 7 rushed to the hut and shifted the accused to Kodad Hospital, whereas, P.W.1 went to the Police Station and lodged a report, on the basis of which, P.W.14 registered a crime, issued Ex.P.9-F.I.R and forwarded the same to the concerned. He examined P.W.1 and recorded her statement under Ex.P.10. P.W.15- Inspector of Police took up investigation, inspected the scene of oﬀence, prepared the scene of observation report, conducted inquest over the dead body of the deceased, examined P.Ws.2 to 8 and seized M.Os.1 and 2- sickle and axe, blood stained earth and control earth from the scene of oﬀence. He arrested the accused on 11.06.2006 and sent M.Os.1 and 2, control earth and blood stained earth to Forensic Science Laboratory. After completion of investigation and receipt of necessary reports, he laid charge sheet. On committal of the case to the Court of Sessions, two charges have been framed against the accused for the oﬀences under Sections 302 and 309 I.P.C. When the same were read over and explained to the accused in Telugu, he pleaded not guilty and stated that he has no means. Hence, he was provided legal aid by appointing an Advocate. In order to prove the guilt of the accused, the prosecution examined P.Ws.1 to 15 and got marked Exs.P.1 to P.11, apart from marking M.Os.1 and 2 i.e., sickle and axe. No oral or documentary evidence was adduced on behalf of the deceased. P.W.1, who is the mother of the accused and mother- in-law of the deceased, did not support the case of the prosecution and denied with regard to giving the report also, and therefore, she was declared hostile. P.W.2, who is the brother of the accused, also did not support the case of the prosecution and therefore, he was also declared hostile. P.W.3, who is the eyewitness and daughter of the accused as well as the deceased, categorically stated that the accused used to consume liquor and beat her mother occasionally; that at about one year prior to her giving evidence, her father hacked her mother with an axe on the back of her neck when she refused to give Rs.120/-; that at the time of incident, herself and her parents were alone present in the hut; that immediately, she went to the house of P.W.1- who is her paternal grandmother and informed the incident to her; that P.W.1, herself and others came to the house and her father attempted to commit suicide by cutting his throat with a sickle and that immediately, he was taken to Kodad Hospital. In her cross-examination, she denied the suggestion that she was not in the house and she went to school at the time of the incident. However, she stated that she had not at all gone to the school. She also denied the suggestion that the accused never ill- treated the deceased by consuming liquor and that he has not hacked the deceased with an axe. She further denied that the suggestion that at the instance of her maternal grandmother and maternal uncle she deposed falsely. P.W.4, who is the mother of the deceased deposed that the accused used to beat the deceased by consuming liquor. P.W.5, who is the elder brother of the deceased, deposed that there were four panchayats between the accused and the deceased about the ill-treatment. P.W.6, who is having vacant site by the site of the house of the accused, where he planted teak-wood, also deposed that the accused used to beat the deceased. P.W.7, who is a resident of Nadigudem did not support the case of the prosecution and turned hostile. P.W.8, who is a panchayatdar, deposed that ﬁve years back, the deceased came to her parents house unable to tolerate the ill-treatment at the hands of the accused; they called the accused and enquired about the ill-treatment; that the father of the deceased gave Rs.5,000/- to the accused and the accused promised that he will look after the deceased with love and affection. P.W.9, who is the inquest panchayatdar, deposed that about 1½ year back the police called him to Nadigudem Government Hospital and conducted inquest over the dead body of the deceased in the presence of him and others and that he signed in Ex.P.4-inquest report. P.W.10 is the doctor, who conducted post mortem examination over the dead body of the deceased and found two external injuries i.e., lacerated wound 2 x 1 x 3 inches caused by sharp object and right side neck 3 x 2 x 1 inches. He issued Ex.P.5-Post Mortem Certiﬁcate opining that deceased died of hemorrhagic shock due to multiple injuries on the neck. In the cross examination, he stated that in Column No.11 of Ex.P.5 he mentioned that the weapon used was knife. P.W.11 is the doctor, who initially treated the accused. He deposed that when the police constables brought the accused to his hospital, he found insized cut injuries on his neck and that he gave treatment to him. Subsequently, the accused was taken to Government Hospital, Kodad. P.W.12 is a witness to the seizure of M.Os.1 and 2 and also to the scene of observation report-Ex.P.6 and rough sketch – Ex.P.7. P.W.13, who is a Civil Assistant Surgeon in Primary Health Centre, Allapally Village, deposed that on receipt of the requisition from the Judicial Magistrate of First Class, Kodad, on 11.06.2006, he examined the accused and found two injuries, which are simple in nature and they were caused by sharp object. He issued Ex.P.8-Wound Certificate. P.W.14 is the Sub Inspector of Police. He deposed that on 10.06.2006 he received a report from P.W.1; that based on the said report, he registered a case in Crime No.48 of 2006 for the oﬀences under Sections 302 and 309 I.P.C and issued Ex.P.9-F.I.R; that the report given by P.W.1 was marked as Ex.P.10 and that he examined P.W.1 and recorded her statement and thereafter, handed over the case file to the Inspector of Police. P.W.15 is the Investigating Oﬃcer, who inspected the scene of oﬀence, prepared the scene of observation report, conducted inquest, seized M.Os.1 and 2, blood stained earth and control earth and sent the same to Regional Forensic Science Laboratory. After completion of investigation and receipt of necessary report, he ﬁled the charge sheet. The learned Sessions Judge, after analysing the entire material available on record, found that the evidence of P.W.3-child, who is eyewitness to the incident, coupled with the other evidence with regard to the ill treatment of the accused towards the deceased and his addiction to the alcohol and the accused receiving the injuries, and held that the prosecution could able to bring home the guilt of the accused beyond all reasonable doubts and accordingly convicted and sentenced the accused as stated supra. Hence, this appeal. The accused has been provided with legal aid in preferring the appeal by appointing Sri Sri Jogram Tejawath, learned counsel on his behalf. Learned counsel for the appellant strenuously contends that except P.W.3, there are no other eyewitness to the incident to connect the accused with the commission of the oﬀence and that since P.W.3 is the child witness, aged about 9 years at the time of occurrence, she was tutored by her maternal grand parents. He further contended that P.W.1, who lodged the report, based on which the crime has been registered, turned hostile and denied about the ﬁling of the report and that the Post Mortem Examination Report shows that the weapon used in the commission of the oﬀence was a sharp knife. Therefore, hacking the deceased with M.O.1-axe does not arise and the accused is entitled to benefit of doubt. On the other hand, the learned Additional Public Prosecutor sought to sustain the impugned judgment. In the light of the above submissions, the point that arises for consideration is whether the prosecution could able to bring home the guilt of the accused beyond all reasonable doubts and the impugned judgment is liable to be set aside or modified? It is well settled that when a child of tender age, who witnessed occurrence, informed her near relatives about the manner in which the attack took place and there are no exaggerations and she stuck to her statement made during the investigation in all material particulars and that her evidence when considered in the background of the recoveries made and the Forensic Science Laboratory report which shows of the bloodstains found on the assault weapon used were of the same blood group as that of deceased, the evidence of such child witness is reliable. ( S e e Ratansinh Dalsukhbhai Nayak vs State of Gujarat[1]). In Ex.P.6- scene of observation panchanama conducted on 10.06.2006 at 14.30 hours P.W.3 stated that her father was moving in the village by consuming liquor and without doing any work; that her mother used to go to coolie work; that her father used to pick up quarrel with her mother; that her father’s health was not good due to consuming liquor; that in the morning of the fateful day, her mother took her father to the Doctor at Kodad and after examination, they came to the house in the afternoon; that just after coming to the house, her father asked her mother to give money for getting liquor and when her mother refused to give money, he picked up an axe from the hut and hacked on the back side of the neck, due to which, her mother fell down; that while crying, she ran away and informed the same to her grandmother; that when herself and her grandmother returned, her mother died in the pool of blood and when herself and her grandmother raised hues and cries, her father attempted to commit suicide by cutting his throat and then the persons gathered there took her father to the doctor. Even though P.W.3 is a child witness, when she was examined in the Court nearly one year ﬁve months after the occurrence, she stuck to her statement, which was recorded on the date of occurrence, and there was no discrepancy in the earliest version and the evidence recorded in the Court. Nothing was elicited in her cross-examination to discredit her testimony. Further, her evidence with regard to the injuries received by the accused, also corroborates with the evidence of P.Ws.11 and 13, who examined the accused and found injuries on him. When the accused was examined under Section 313 Cr.P.C. with regard to incriminating material made against him by the prosecution, he simply denied the same and did not state as to how he received the said injuries. Though the accused oﬀered no explanation as to the human bloodstains on the material objects recovered, Ex.P.8–wound certiﬁcate suﬃciently establish that he received fatal injuries, which corroborates the evidence of child eyewitness. Further, Ex.P.11- report of the Andhra Pradesh Forensic Science Laboratories, Hyderabad also clearly discloses that the blood group on sickle, axe and blouse, saree and petticoat of the deceased is of ‘A’ group. The above evidence clearly establishes that the accused hacked the deceased and when P.Ws.1, 3 and others visited the house, the accused attempted to commit suicide. Hence, we fully satisﬁed with the conclusion reached by the lower Court in convicting the accused and the judgment under appeal needs no interference by this Court. In the result, the Criminal Appeal is dismissed. A.GOPAL REDDY, J R. KANTHA RAO, J Date: 24.11.2011 va [1] 2004 CRI. L.J. 19