* HON’BLE SRI JUSTICE V. ESWARAIAH And HON’BLE SRI JUSTICE V. SURI APPARAO + Crl.A. No. 1033 of 2007 %08-03-2011 # Komera Moses …. Appellant Vs. $ The State of A.P. …. Respondent !Counsel for the Appellant: Smt. J.Kusumavathi Counsel for the Respondent: Public Prosecutor <Gist : >Head Note: ? Cases referred: JUDGMENT:- (Per Hon’ble Sri Justice V. Suri Appa Rao) This Criminal Appeal is filed under Section 374(2) Cr.P.C. against the judgment of conviction and sentence passed by the learned Metropolitan Sessions Judge-cum- III Additional District & Sessions Judge (Fast Track Court), Ranga Reddy District at L.B.Nagar against the appellant in S.C.No.219 of 2006 dated 29.03.2007 whereby the appellant was convicted under Section 302 IPC and sentenced to suffer imprisonment for life and also to pay a fine of Rs.300/-, in default, to suffer rigorous imprisonment for three months. He is also sentenced to suffer rigorous imprisonment for one year for the offence punishable under Section 324 IPC and also to suffer rigorous imprisonment for three months for the offence under Section 323 IPC. The necessary facts leading to file this appeal are as follows: The appellant is a resident of Ayodhyanagar and a rowdy sheeter of Jeedimetla having been involved in several cases. The accused used to utilize the services of PW2 - son of the deceased and the younger brother of PW1 for the purpose of his illegal activities. While so, on 26.03.2006, at about 8.30 a.m., the accused sent PW4 to call PW2 to utilize his services as usual, but PW1 and his deceased father refused to send PW2 to the accused and the same was informed to the accused. Immediately, the accused picked up a talwar, went to the house of the deceased and called PW2 by abusing him. When PW2 came out of the house, the accused beat him with hands. When PW1 went to rescue PW2, the accused beat PW1 also with talwar and attempted to kill him, then the deceased came and questioned the accused as to why he was beating his son. Immediately, the accused attacked the deceased by beating him with talwar on the head and the deceased started running in order to escape from the accused, then the accused by chasing him, cut the hand and throat of the deceased and brutally murdered him with talwar. In that process, the accused also sustained injuries to the right palm. The accused, later, went to his house and absconded. PW1 - the son of the deceased, rushed to the police station and lodged a complaint against the accused, which was registered by PW14 as a case in Cr.No.256 of 2006 under Sections 302, 307 and 323 IPC. PW14 immediately took up investigation, conducted scene of observation panchanama in the presence of all mediators, prepared a rough sketch of the scene of offence and held inquest over the dead body of the deceased in the presence of PWs.9 and 10. He send the dead body for post mortem examination. PW12 - Medical Officer, who conducted autopsy over the dead body of the deceased, opined that the cause of the death of the deceased was due to cut of throat injury. On 31.3.2006, at 09.00 a.m., PW14 arrested the accused and recorded his statement. Based on the confessional statement, MO1 was seized which was used for commission of offence in the presence of PW13 and others. After completion of investigation, charge sheet was filed. The learned Sessions Judge framed charges under Section 302, 307 and 323 IPC. The accused pleaded not guilty. In order to establish the charges framed against the accused, the prosecution examined PWs.1 to 15 and got marked Exs.P1 to P13 and M.Os.1 to 5. The fact that the death of the deceased is homicidal was not denied by the accused. In order to prove that the death of the deceased is homicidal, the prosecution examined PWs. 10, 12 and 14. PW10 stated in his evidence that about 10 months back at about 09:00 a.m., he came to know about the death of the deceased. He went to Mortuary of Gandhi Hospital to see the dead body of the deceased where the police conducted inquest over the dead body of the deceased and seized Mos.4 and 5 under cover of inquest panchanama signed by him. PW12, who conducted post mortem examination over the dead body of the deceased, has stated in his evidence that on 27.03.2006, on receiving requisition from the police, he conducted post mortem examination over the dead body of the deceased and found the following ante mortem injuries: i) An incised cut injury of 7 cm x 2 cm bone deep extending from front to back present over the parietal area of left side of the scalp and a fissure fracture of parietal bone noted deep to the injury. ii) Incised injury of 6 cm x 2 cm and bone deep present over left temporal area of scalp. iii) A cut throat injury of 17 cm x 6 cm deep to the cervical spine. All neck muscles and Neuro vascular bundles are cut. The larynx, esophagus are also cut. The upper and lower margins are thin and irregular. iv) Another cut throat injury of 7 cm x 4 cm below the thyroid cartilage is present. v) An elliptical shaped stabbing injury of 3 cm x 2 cm deep to the thoracic cavity present over the left side of the chest near collar bone. vi) A partially lacerated amputated injury of right fore arm at middle and open type of both bone fracture present. vii) A contusion present over the oxipital area. Injuries age is about 12 hours to 18 hours. PW14 - Inspector of Police, who conducted inquest over the dead body of the deceased, stated in his evidence that in the presence of PW10 and one A. Siddaiah with regard to the registration of the case, he seized M.Os.4 and 5. The evidence of PWs.10, 12 and 14 clearly indicate that the death of the deceased was homicidal. In order to prove that the accused was responsible for causing the death of the deceased, the prosecution examined PWs.1 to 7, who are the eyewitnesses to the incident. Out of them, PWs.1 and 2 are none other than the sons of the deceased. PW3 is the wife of the deceased. PWs.4 to 7 are the independent witnesses. It is the case of the prosecution that at about 8.30 P.M., the accused sent PW4 to call PW2 to utilize his services for his immoral purposes. Accordingly, PW4 went to the house of PW2 and called him, then PW1 and his deceased-father refused to send PW2 on the ground that PW2 is not maintaining good health. PW4 returned to the accused and informed the same to him that the deceased and PW1 refused to send PW2. On that the accused grew wild, took his talwar, went to the house of the deceased, questioned PW1 for not sending his brother and started beating PW1. Meanwhile, when the deceased, who came out to his house after answering his calls of nature, intervened the high-handed behaviour towards his son, the accused attacked him with talwar by inflicting injuries. When the deceased started running to escape from the accused, the accused stabbed him with talwar by chasing and caused instantaneous death. PW1 - son of the deceased, deposed that on 26.03.2006, at about 08.30 a.m. the accused sent PW4 to their house to call PW2. Then, himself and his father refused to send his brother as he was suffering from fever, then PW4 went away and informed the same to the accused. After sometime, the accused came to his house, called his brother outside, and when his brother came out, the accused beat him questioning as to why he did not come. When PW1 questioned as to why he was beating his brother, the accused beat him with hands claiming that his brother has to oblige. When the accused again tried to beat PW2, he intervened, then the accused attempted to hack him with Talwar and caused bleeding injury on his left shoulder. Meanwhile, his father, who saw the incident while coming from bathroom, questioned the accused as to why he was beating his son then the accused hacked with talwar on the head of his father, who received severe injury and started running out of fear. Then, the accused, by chasing him hacked again. When his father still tried to escape, the accused again hacked him with talwar. When his father raised his right hand to avert that blow he received injury to his right arm. The accused also kicked him by catching hold of his shirt. When the deceased fell down, the accused cut the head of his father with talwar. PW1 then rushed to the police station along with his brother and gave Ex.P1 - statement before the police. In the cross-examination, nothing is elicited to discredit this evidence and the manner of attack on the deceased by the accused with talwar. PW1 has further stated in his evidence that PWs.6 and 7 also witnessed the incident. PW2, who is the younger brother of PW1, stated that the accused is a tenant of his friend and has got acquaintance with him. As he used to go to the house of his friend, the accused used to talk with a woman by name Bonda. The accused instructed him to bring that woman to his house now and then, therefore, he called her twice, but later when he refused to bring her on one occasion, the accused beat him. He used to bring tiffin, meals, cigarettes, etc. to the accused at his instance. On 26.03.2006, at about 08:00 a.m. when he was at his house, the accused sent PW4 to fetch him, then PW1 sent away PW4 saying that he was suffering from fever. After sometime, the accused came to their house and abused him in filthy language by calling him from outside. When he came out along with his brother- PW1, the accused questioned him for not coming to his house and beat him. When PW1 questioned him as to why he was utilizing his services, the accused attempted to hack on the neck of PW1 with talwar, which hit on the left shoulder of PW1 and caused bleeding injury. At that time, his father, while returning from his calls of nature, questioned the accused as to why he was beating PWs.1 and 2, then the accused kicked his father on the stomach, hacked him on the head and caused bleeding injury. When his father started running, the accused chased him with talwar and threatened PW1 not to interfere. The accused again beat his father with talwar and caused injury on the left hand. He also kicked him and cut the neck of his father with talwar and he died on the spot. Thereafter, himself and PW1 ran to the police station to lodge complaint. He also stated in his evidence that PWs.6 and 7 also witnessed the incident. PW3, the wife of the deceased, stated in her evidence that about 10 months back, the accused sent one boy for fetching PW2, but they did not send their son to the accused. Then, the accused came to the house and took away PW2 along with him, during which time, her husband came and requested the accused not to beat his sons. Then the accused abused her husband and kicked on his stomach. When her husband fell down, the accused cut the hand and neck of her husband, and at that time, she was drinking water inside her house. She further stated that the accused also hacked PW1 on the left shoulder and her husband died on the spot. PW4, who is the crucial witness in this case, he first went to the house of the deceased on the instructions of the accused to fetch PW2, is a child witness aged about 9 years at the time of the offence. Therefore, the learned Sessions Judge put number of questions to ascertain about his capacity to answer his questions, and after satisfying that PW4 is capable of giving evidence, he recorded the statement of evidence of PW4. In his evidence, it is stated that PWs.1 and 2 are residing in Ayodhyanagar. As he was asked by the accused to fetch PW2, he went to the house of the deceased and informed him that the accused was calling him, who stated that he was suffering from fever, therefore, he returned to the accused, informed the same and went to his house. PWs.5 to 7 are the independent witnesses. PW5 stated that he belongs to the State of Bihar State and is running a Fast Food Centre at Ayodhyanagar. At about 10 months back at 08:00 p.m., the accused came to his shop, abused him in filthy language and asked the whereabouts of his shop owner by name Murali. When he replied that he went to a function, the accused came inside the shop and searched for the owner. After sometime, when PWs.1 and 2 and their father came out of their house, the accused hacked on the head of the deceased first, who started running out of fear, and when the accused chased and attempted to hack him again with the talwar near the chicken shop, the deceased raised his right hand to ward off the blow, then he received bleeding injury on his right arm. The accused caught hold of the deceased and cut his throat with the talwar, and the deceased died on the spot. He could not interfere as the accused is a rowdy sheeter and was armed with talwar. He further stated that the talwar used by the accused is longer than MO1. PW6, who is running a chicken shop in Ayodhyanagar, stated that about 10 months back, at 08.15 p.m., while he was in his shop, he heard cries of the deceased saying “do not kill me”. The deceased was then having bleeding injury on his head and the accused was chasing him arming a talwar. When the accused attempted to hack the deceased with talwar and the deceased raised his right arm to aver the blow, he received bleeding injury on the right arm. When the deceased fell down, the accused cut the throat of the deceased with talwar. He further stated that though several persons witnessed the incident, nobody came forward to save the deceased out of fear of the accused. He also stated that the deceased died in front of his shop, and MO1 is the talwar with which the accused committed the offence. PW7, who is running a Tea Stall in Ayodhyanagar near the scene of offence, has stated in his evidence that the house of the deceased is at a distance of 150 yards from his shop and at about 10 months back at about 08.00 p.m., the deceased was going in front of his shop with bleeding injury, and the accused, who was running after him at a distance of 10 yards, beat on the right arm of the deceased with a knife. When the deceased fell down, the accused hacked him on the neck of the deceased, who died on the spot. He also stated that MO1 is used by the accused for committing the offence. PW8, who examined PW1 and gave Ex.P2 – wound certificate, stated that on 27.03.2006, at about 12.15 p.m., he found on PW1 an avulsion with an abrasion over the left arm of size 4 x ½ cm. He provided First Aid to the injured and asked him to take treatment as outpatient. PW15, Dr.K.Srinivvas, who is running Nursing Home in the name of Sai Bhavani Super Specialty Hospital at Shapurnagar, stated in his evidence that the police of Jeedimetla brought the accused to his hospital on 31.03.2006 at about 1.00 P.M. He examined him and found a small cut injury on his right palm and another injury on right first toe and both the injuries are simple in nature and Ex.P13 is the wound certificate issued by him. The prosecution examined these witnesses to prove that the accused received injuries on his toe and on the right palm while committing the offence. PWs.1 to 7 are the direct eyewitnesses to the incident. Out of them, PW1 is the injured witness, who first received injuries at the hands of the accused when the accused beat his younger brother - PW2, and therefore, the presence of PWs.1 and 2, and their mother - PW3 at their house cannot be doubted since the incident took place at the house of the deceased. PWs.5 and 6, who are running Fast Food Centre, Chicken shop respectively near the scene of offence, are the natural witnesses and their presence also cannot be doubted as the accused chased the deceased who was running away from him and inflicted some more injuries on him near the shops of PWs.5 and 6. PW6 has clearly stated in his evidence that after the accused inflicted injuries on the throat of the deceased, he died on the spot in front of his shop. The Medical Officer - PW12 found as many as seven injuries on the deceased. Out of them, while injury Nos.1 and 2 are incised, Injury Nos.3 and 4 are cut throat injuries. Injury Nos.5 and 7 are the lacerated elliptical shaped stabbing injury, which, as per the opinion of PW12, would be caused by sharp weapon like M.O.1, which was seized by the police on the confessional statement of the accused in the presence of PW13. According to PW1, when his father questioned the accused as to why he was beating him and PW2, the accused kicked his father on his stomach and hacked him on the head causing bleeding injury. Thereafter only the deceased started running to save himself from the accused, and by the time he reached the shops of PWs.5 and 6, the accused hacked the deceased with talwar and caused the remaining injuries. PWs.6 and 7 also spoke about the manner of attack by the accused and the subsequent injuries inflicted on the deceased with talwar. Thus, the evidence of PWs.1, 2, 5 to 7, who are the eyewitnesses, is reliable and amply corroborated by the medical evidence about the manner of attack by the accused in causing the death of the deceased. PW1 is the injured witness and in fact, the accused did not explain the injuries caused to his toe on his right hand which corroborates the evidence of PWs.1, 5 to 7 about the accused kicking the deceased. While kicking the deceased, the accused received injuries to his toe and while hacking, he received injury to forearm. Though PW5 has stated in his evidence that MO1 is not the talwar used by the accused and the talwar used by him is longer than MO1, the medical evidence and the evidence of other eyewitnesses clearly indicate that the accused inflicted injuries on the deceased with MO1. The learned Sessions Judge at paragraph 13 of the impugned judgment observed that the discrepancies always occur in the evidence of truthful witnesses, therefore, the evidence of PW5 cannot be brushed aside simply on the ground that the accused used longer talwar than MO1. Admittedly, PW5 witnessed the incident when he was at his shop. He stated that the accused inflicted the injuries with talwar while the deceased was running in front of his shop to save his life. In that situation, it is not possible for him to notice the length and size of the weapon used by the accused for inflicted the injuries. PWs.1, 2, 6 and 7 have clearly stated in their evidence that M.O.1. is the talwar used by the accused for the commission of offence from initial stage till the end of the crime. The learned counsel for the accused submitted that the accused has no enmity with the deceased and there is no intention on the part of the accused to commit the offence. Admittedly, the prosecution has not adduced any evidence that there was any enmity between the accused and the deceased. Though there was no enmity between the accused and the deceased prior to the incident, the reason for the attack on the deceased is that the deceased prevented his son-PW2 from going to the accused, who was utilizing the services of the young boy for his illegal and immoral purposes. When PW4 informed the accused that the deceased and PW1 refused to send PW2, the accused picked up the talwar and proceeded to the house of the deceased and committed the offence. The manner in which the offence was committed and the injuries caused to the deceased and PW1 clearly indicate that the accused had intention to commit murder. Admittedly, the accused is a rowdy sheeter. PW14 has clearly stated in his evidence that the accused was involved in ten criminal cases including this case and is a rowdy sheeter. The way in which the accused attacked PW1 and the deceased for the simple reason that they did not send PW2 to him clearly indicates that the accused, being a rowdy sheeter and involved in number of cases, is creating terror among the people in the surrounding area. The evidence of the investigating officer also clearly shows that none came forward to act as mediator at the time of the arrest and seizure of M.O.1. Therefore, he was forced to utilize the services of the revenue officials by sending a letter to Mandal Revenue Officer. The attitude of the accused clearly proves the fact that he deserves the punishment imposed by the learned Sessions Judge. Therefore, we see no valid and reasonable grounds to interfere with the judgment of conviction and sentences imposed by the trial Court in S.C.No.219 of 2006 dated 29.03.2007 for the offences punishable under Sections 302, 324 and 323 IPC. Hence, the Criminal Appeal is devoid of merits and the same is accordingly dismissed. ________________ V. ESWARAIAH, J 08.03.2011 __________________ V. SURI APPARAO, J Bcj Note: L.R. Copy to be marked