* THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO + CRIMINAL APPEAL No.976 of 2007. %19.01.2011. #Racha Ashok ….Appellant/Accused Vs. $ State of A.P. rep. By Public Prosecutor, High Court of A.P. Hyderabad. ….Respondent/Complainant !Counsel for the Appellant: ^Counsel for the Respondent: <Gist : >Head Note: ? Cases referred: 1. AIR 2004 Supreme Court 23 2. AIR 1973 Supreme Court 2622 3. 1983 CRI.L.J.1096 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE NINETEENTH DAY OF JANUARY TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE K.C. BHANU AND THE HONOURABLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 976 OF 2007 BETWEEN: Racha Ashok …APPELLANT AND The State of Andhra Pradesh …RESPONDENT The Court made the following: THE HONOURABLE SRI JUSTICE K.C. BHANU AND THE HONOURABLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 976 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice N.R.L.Nageswara Rao) The sole accused in Sessions Case No. 14 of 2005 on the file of I Additional Sessions Judge, Warangal, who was convicted for the offence punishable under Section 302 Indian Penal Code, 1860 (for short,“IPC”) and sentenced to undergo life imprisonment and to pay fine of Rs.10,000/-, in default to undergo further imprisonment for a period of one year, is the appellant herein. 2. The case of the prosecution is that the deceased Hemalatha (hereinafter referred to as ‘the deceased’) and the accused are residents of Singarajpally Village. The husband of the deceased is said to have gone to Maharashtra for eking livelihood and the accused is said to have developed illicit intimacy with the deceased. PW-1 is the neighbour, PW-9 is the daughter and PW-10 is the mother of the deceased. PW-11 is also the brother-in-law of the deceased and a neighbour of the deceased. There were some disputes between the accused and the deceased with regard to the relationship. On 17-08- 2003 at about 9-00 P.M., when the deceased was in the house, the accused picked up a quarrel with regard to her affairs, having become enraged, poured the kerosene on her and lit fire with an intention to kill her and tried to escape. The deceased hugged the accused, the accused escaped from her clutches. PWs-1, 2 and 11 who are the neighbours, noticed the flames and came there and found the accused running away from the scene and the deceased in flames. PW-1 chased the accused, but the accused escaped from the scene. Though the deceased was sought to be shifted to Government hospital, Jangaon, on the way she died. On receipt of a complaint from PW-1, a case in Crime No. 56 of 2003, under Section 302 IPC was registered and investigated into. During the course of investigation, the statements of the witnesses ware recorded, panchanama of the scene was conducted and incriminating material, which are the properties belonging to the accused, were seized and the dead body was sent for post mortem examination. It was also revealed that the accused got himself admitted for burns and was treated in the M.G.M. Hospital. The accused was arrested on 16-03-2004 after discharge from the hospital and sent for remand. After completion of the investigation, charge sheet was filed under Section 302 IPC against the accused. 3. The case was taken on file as P.R.C.No. 69 of 2004 by the Judicial Magistrate of First Class, Jangaon, and committed the same to the Court of Sessions, and subsequently, after numbering the case, it was made over to the Court of I Additional Sessions Judge, Warangal. 4. After appearance of the accused before the learned Sessions Judge, charge for the offence punishable under Section 302 IPC was framed. When the charge was read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried. 5. To substantial the charge, the prosecution examined PWs. 1 to 15 and got marked Exs.P.1 to P.33, besides case properties M.Os.1 to 6. 6. After closure of the prosecution evidence, the accused was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C’) to explain the incriminating the circumstances appearing against him in the evidence of prosecution witnesses. He denied the same and he did not adduce any defence evidence. 7. 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 as stated above after hearing the accused. Aggrieved by the same, the present criminal appeal is filed by the appellant/accused. 8. Heard Sri O.Kailashnath Reddy, learned counsel appearing for appellant as well as the learned counsel representing the Public Prosecutor. 9. The points that arise for consideration are:- 1) Whether the prosecution has proved that the appellant/accused has committed the murder of the deceased ? 2) Whether the conviction and sentence imposed by the learned Sessions Judge against the appellant/accused is legal and sustainable?, Warangal is legal and sustainable? 10. In support of the prosecution case, PW-1, who is the complainant and also the neighbour of the deceased, stated that on the date of incident at about 9.00 P.M. when he was watching the T.V., he found the flames and cries from the house of the deceased, he came out and found the deceased with burns. Many of the villagers gathered and on the next day morning, the police came and he has given a complaint and he identified the First Information Report, which contains his signature. He was declared hostile by the prosecution, since he did not support the prosecution version of seeing the accused running away from the scene and chasing him. 11. PW-2 is also a neighbour of the deceased. According to him, he does not know how the deceased received burns and he went to the house of the accused after the incident and she was shifted to hospital. He was declared as hostile by the prosecution since he did not support the prosecution case and witnessing the accused running away from the scene and enquiring with the deceased. 12. PW-3 is the brother-in-law of the deceased. According to him, he resided at Singarajupalli and he was informed by his brother Mallaiah about the death of the deceased and he also did not support the prosecution case of the information given about the cause of the death and, therefore, he was declared hostile. 13. PW-4 is the mother-in-law of the deceased and she also resides at Singarajupalli. She did not support the prosecution case and declared hostile by the prosecution. PW-5, who is said to have shifted the deceased to the hospital in a Tractor also did not support the prosecution case and he was also declared hostile. 14. PWs.6 and 7 are the panch witnesses, who were examined to prove the observation of the scene of offence, and PW-6 has supported to the extent of drafting of the panchanama and inquest report, but did not support the seizure of the incriminating articles of the accused and, therefore, they were declared hostile. 15. PW-8, is also a panch witness, who was present at the time of the inquest. According to him, Ex.P-16 panchanama was conducted by the police in his absence. 16. PW-9 is the daughter of the deceased and a child witness having aged about 9 years. After satisfying with the capacity of the witness to give a statement, the learned Sessions Judge, recorded her statement. According to her, the deceased died about three years back and she was in the house along with the deceased. The accused entered into the house at about 9-00 or 10-00 P.M. and forcibly took the deceased into Pooja room and poured the kerosene on the deceased and set a fire on her. After hearing cries of her mother, she got up and unable to bear the burns, the deceased caught hold of the accused. Therefore, the accused also received burns and he ran away. While running away, the photos and other papers of the accused fell down and PW-1 came and chased the deceased. She also stated about the enquiries made from her by PW-3 and others and narration of the incident given by her. In the cross-examination, she stated that while sleeping, the lights will be put off and on the date of the incident also, the lights were put off and she went to bed and she does not know who came to the house and what happened and she does not know who came after his mother was on fire. She also stated that she was accompanied by her maternal grand mother and paternal uncle. The policemen informed of the facts to her outside the Court and she did not give any statement to the police. When a suggestion was given to her that she did not see anything, she accepted the same as true. 17. PW-10 is the mother of the deceased. According to her, she resides at Alair and on coming to know about the incident, she came to Singarajupalli and enquired from PW-9 as to what happened and she narrated the incident and PW-1 also narrated the incident to her. In cross-examination it was suggested that the deceased sold arrack and that she has not stated before the police about the enquiries from PW- 9 and the information given by her. 18. PW-11 is the brother-in-law of the deceased and he also claims to have came out about 9.00 P.M., on hearing some quarrel in the house of the deceased and he saw the accused running away with burns. The burns were put off on the deceased and she was conscious. When he enquired from the deceased, she informed that as she refused to have sex with the deceased, she was dragged into Pooja room and set fire by pouring kerosene. The deceased was being taken to hospital, but she died on the way. He also spoke about the presence of PWs. 1, 2, 6 and others when he reached the scene. He also confirmed the information given by PW-9 about the nature of incident. In cross-examination, she denied the suggestion that the deceased was not conscious when she went there. She stated that the accused is the Village Servant and he has to look after the law and order in the village and checks the illicit sale of liquor. He denied that the deceased was warned for her illegal activities. 19. PW-12- the doctor, who conducted the autopsy over the dead body of the deceased and found 90% of the injuries had opined that the death was due to hypo onemic shock due to burns and issued Ex.P-19-postmortem report. 20. The evidence of PW-13 is about receipt of Ex.P.1 complaint and registering it as Ex.P.20 First Information Report. The evidence of PW- 14 is about the investigation done by him in this case and arrest of the accused. The evidence of PW-15 is that on 18-08-2003 the accused was admitted in M.G.M. Hospital, Warangal with burns and was inpatient till 31-10-2003. Ex.P.32 is the certificate issued by him. According to him, the injuries suffered by the accused are 24.00 hours prior to 18.08.2003 when he was admitted in the hospital. According to him, the opinion recorded in the case sheet Ex.P.32 is that the accused received injuries on17.08.2003 at 9.30 P.M. 21. The learned counsel appearing for the appellant strongly contended that the lower Court had wrongly relied upon the evidence of PW-9; and the evidence of PWs.10 and 11 cannot be accepted; that the lower Court also failed to consider the plea of the accused that the receipt of the burns by him is not in the transaction as alleged by the prosecution, but were self inflicted burns due to the quarrel with his wife and the learned Sessions Judge failed to consider this aspect; that the neighbours did not support the prosecution case and there was a delay of nearly 10 to 12 hours in lodging of the complaint, for which there is no explanation; that PW-9 is a child witness and her presence at the time of the incident itself is not proved and not believable and when once her statement in the cross examination destroys the prosecution case, the learned Sessions Judge ought not have accepted her evidence and, therefore, he contended that the conviction and sentence imposed by the learned Sessions Judge are not legal and prays to set aside the same. 22. On the other hand, the learned counsel representing Public Prosecutor contended that the evidence of PWs.9 to 11 and the circumstances clearly point out the guilt of the accused; that there are no reasons to come to a different conclusion, than the finding recorded by the lower Court about the guilt of the accused and hence sought to sustain the judgment of the lower Court. 23. Evidently, PWs. 1 and 2 did not support the prosecution case. But the fact remains is that when the deceased was in the house she received the burns and died due to those burns. The prosecution relies upon the evidence of PW-9, who is the daughter of the deceased, who is said to be present at the time of the incident. PW-10 is the mother of the deceased, who came later to the scene of offence. PW-11 is also the brother-in-law of the deceased, who immediately came to the scene and enquired from the deceased about the incident. 24. The learned counsel for the appellant contended that PW-9 is not an eyewitness to the incident and she was not present at the scene of occurrence. The fact that PW-9 is related to the deceased as a daughter is not in dispute. Admittedly, the father of the PW-9 is not staying with the deceased. But, it is natural that the daughter will be with the mother in the absence of the father, unless and until special circumstances are shown. In the cross-examination of PW-1 or PW-2, the non-residing of PW-9 along with the deceased at the time of incident are earlier to it is not confronted to the statement of PW-9. Therefore, no inference can be drawn on the contention of the accused that Pw-9 was not present. When an argument is developed against the natural circumstances, it is for the accused to probabilise the absence of PW-9. There is no material in the cross- examination of PW-10 to show the PW-9 was staying with any of the grand parents, and not the along with the deceased in her house. 25. Therefore, we have no reason in holding that PW-9 is a natural witness to the incident and was present at the time of incident in the house. It is also to be noted that the incident had not taken place during the midnight, where people will be in good sleep. The incident was said to have taken place at about 9-30 P.M., where children will also be active at that time to notice the environment and the circumstances and also the persons coming and going away to the house. Therefore, the possibility of the child going to good sleep and not being able to react to see what is going on inside the house is not acceptable and a student of 5th class, at the age of 10 years, her capacity to observe the circumstances and the things going on in the house and understand the same cannot be doubted. 26. The strong contention of the counsel for the appellant is that in the cross-examination, PW-9 has almost accepted the suggestions of the counsel for the accused and she was not an eye witness to the incident and thereby the entire chief examination lost its credibility. It is his contention that the statement of PW-9 was induced by the police and also by the grandmother and senior paternal uncle. In this regard, it is to be noted that the Courts have given guidelines repeatedly for the rational acceptance of the evidence of a child witness, if the child witness is able to observe the circumstances and their presence can be believed when there are other corroborating circumstances. Merely, because a child witness has fumbled or confused due to the Court atmosphere or the rigour of the cross-examination or leading questions, the evidence cannot be discarded. All the suggestions put to a child witness and nod of the head of the child will not destroy the truthful version of the evidence given by the child. It is to be noted that the narration of the incident by PW-9 leads no doubt about the fact that the accused came to the house and poured kerosene on the deceased. She also heard the cries of the deceased and saw the deceased hugging the accused. The contention that the police have asked or informed the facts before giving the evidence cannot be taken as a tutoring of the witness to speak falsehood. Even a truthful witness has to refresh with regard to the facts. It is to be noted that it is not the statement of PW-9 that the police have asked her to speak falsity, and therefore, she was deposing like that. On the other hand, she was asked to depose the facts, which she has seen and, therefore, much weight cannot be given to the contention of the counsel for the appellant that the statement of the daughter of the deceased was tutored by the police or by anybody. Further more, her nodding of the head and acceptance that she did not see anything is only a confusion or because of the Court atmosphere at the end of cross-examination. But, at the same time, the witness was not confronted with the facts stated in the chief examination and as to what the source of the information stated by her in the chief examination. Therefore, a reading of the entire evidence of PW-9 does not give any doubt about that she is a natural and a truthful witness, present at the scene and has seen the incident narrated by her. In this connection it is useful to refer to a decision reported in Ratansinh Dalsukhbhai Nayak V. State of Gujarat[1], which dealt with the appreciation of the evidence of a child witness and the requirements of its acceptance. It is useful to refer to para No.8 of the said judgment which refers to the tutoring of a child witness and dependability of it. “The learned trial Judge has elaborately analysed the evidence of eye-witness. There is no reason as to why she would falsely implicate the accused. Nothing has been brought on record to show that she or her father had any animosity so far as the accused is concerned. The prosecution has been able to bring home its accusations beyond shadow of doubt. Further, the trial Court on careful examination was satisfied about child’s capacity to understand and to give rational answers. That being the position, it cannot be said that the witness (PW.11) had no maturity to understand the import of the questions put or to give rational answers. This witness was cross- examined at length and in spite thereof she had described in detail the scenario implicating the accused to be author of the crime. The answers given by the child witness would go to show that it was only repeating what somebody else asked her to say. The mere fact that the child was asked to say about the occurrence and as to what she saw, is no reason to jump to a conclusion that it amounted to tutoring and that she was deposing only as per tutoring what was not otherwise what she actually saw. The learned counsel for the accused-appellant has taken pains to point out certain discrepancies which are of very minor and trifle nature and in no way affect the credibility of the prosecution version.” 27. Further it is also refer to a decision reported in Shivaji Sahebrao Bobade and another V. State of Maharashtra[2], wherein it was held thus: “Where the witnesses to a criminal case are rustics, their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses the court has to inform itself that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony, provided there is the impress of truth and conformity to probability in the substantial fabric or testimony delivered”. It is a guide for appreciation of any evidence as to how the Court should approach for appreciation of the evidence even if the witness is a child when truth is spoken. 28. So also it is useful to refer to a decision reported in Bharwada Bhoginbhai Hirjibhai V. State of Gujarat[3], wherein it is held thus: “A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him – perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.” 29. The truthfulness of the evidence of PW-9 is also corroborated by the evidence of PWs.10 and 11. PW-10 has come to the scene after knowing the incident and enquired from PW-9. PW-9 also narrated what all she had seen and how the incident had happened. In fact, PW-11 also spoke about the presence of PW-9 and the narration of the incident given by her. Therefore, the statements of the witnesses forming part of the same transaction as explained under Illustration (a) to Section 6 of the Indian Evidence Act, 1872, are admissible and relevant. Therefore, we do not find any reason to doubt the testimony of PW-9 about the cause of incident. Added to that, PW-11, who has come to the scene, has enquired from the deceased about the cause of burns and she has also stated the same reasons as deposed by PW- 9. The evidence of P.W.11 about the statement of the deceased is well within the scope of Section 32 of the Act is relevant and admissible. The contention that the other relatives did not support the prosecution case is not a ground to discard the evidence of PWs. 9 and 11. Therefore, we have no hesitation in holding that the learned Sessions Judge has rightly accepted the evidence of PWs. 9, 10 and 11. 30. Further more, it is the contention of the learned counsel for the appellant that there was an unexplained delay on the part of PW-1 in lodging the report and it gives a benefit of doubt to the accused. We are not able to accept this as a strong ground to disbelieve the prosecution case. The reason is that, PW-1 is a neighbour and he is also said to have chased the accused, but subsequently the deceased was shifted to the hospital and thereafter, when she died on the way she was brought back to the house and thereafter only, in the morning the complaint was lodged. These are all natural circumstances, which may not be immediately activating PW-1 to lodge the report. There is absolutely no reason for PW-1 to give a false report against the accused, if the statement given by him is not true. Therefore, the delay by itself will not destroy the truthful and acceptable evidence of PWs.9 and 11. 31. Added to the above circumstances, at the scene of offence, the Cat Card of the accused was seized and