IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD Tuesday, the 17th day of August, Two Thousand and Ten PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.136 of 2007 Between: Tundari Jangaiah … Appellant And State of A.P., Represented by Public Prosecutor. … Respondent This Court made the following: THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.136 of 2007 JUDGMENT: (per the Hon’ble Sri Justice K.C.Bhanu) This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973, (for short, "Cr.P.C.") is filed by the sole accused against the Judgment, dated 08.12.2006, in Sessions Case No.466 of 2004 on the file of the Court of the I Additional Metropolitan Sessions Judge, Hyderabad, whereunder and whereby, the appellant/sole accused was convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “IPC”) and was sentenced to undergo Imprisonment for life and also to pay fine of Rs.1,000/-, in default, simple imprisonment for a period of five months. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: P.Ws.1 to 3 are all the tenants in the house of one Bihari Ramulu, who is the father of Shanta Kumari (hereinafter referred to as ‘the deceased’). The accused and the deceased were also living in the said building, but in different portions. On 05.07.2000 at about 8.30 P.M., on hearing the cries of the children, P.Ws.1, 3 and Bihari Ramulu rushed to the portion of the accused, broke open the doors and found the accused sitting on the deceased and stabbing her. On seeing them, the accused ran away from the back door. Then the locality people caught hold of the accused. Thereafter P.W.1 lodged a report. Then the police came to the scene of occurrence and arrested the accused. On the intervening night of 5/6.07.2000 at about 12.30 A.M. on the basis of the report lodged by P.W.1, P.W.7 the Sub-Inspector of Police, Amberpet police station registered the same as a case in crime No.212 of 2000 and issued Ex.P7 F.I.R. He then rushed to the scene of offence and at about 05.30 or 06.00 A.M., P.W.9 the Inspector of Police also reached the scene of occurrence and recorded the statements of P.Ws.1, 3, Bihari Ramulu and others. During the course of investigation, P.W.9 held scene of occurrence panchanama; inquest over the dead body of the deceased under Exs.P3 and P4 respectively; and sent the dead body to postmortem examination. On 06.07.2000 on requisition, P.W.5 the then Assistant Professor in Department of Forensic Medicine, Osmania Medical College held autopsy over the dead body of the deceased and issued Ex.P5 post mortem report opining that the cause of death was due to haemorrhage and shock due to multiple injures. On 07.07.2000, P.W.9 arrested the accused and seized the blood stained banian from him and further at his instance a knife was recovered under Ex.P8 panchanama. He further noticed a small injury on right hand palm of accused and then sent him to hospital for treatment. He then sent all the material objects to R.F.S.L. After receiving all the relevant documents and on completion of investigation, charge sheet was filed. 3. The charge leveled against the accused is as follows:- “That you on 05.07.2000 at about 11.45 P.M., at H.No.2-2-185/28/B-2, M.K.Nagar, Amberpet, Hyderabad did commit murder intentionally by stabbing the deceased Smt.Shantakumari with a knfie and that she died on the spot and that you thereby committed an offence punishable under Section 302 IPC and within my cognizance.” When the charge was read over and explained to the accused in telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 9 and got marked Exs.P.1 to P.10, besides marking the case properties-M.Os.1 to 8. 5. After the prosecution evidence is closed, accused was examined under Section 313 Cr.P.C., for which he denied the incriminating evidence appearing against him in the evidence of the prosecution witnesses. The plea of the accused is that he went to Vidyanagar to do painting work and returned home late at about 01.30 P.M. and at that time, his wife already sustained injuries. 6. The trial court after considering the evidence of P.Ws.1 and 3, found the accused guilty and accordingly convicted and sentenced him, as stated supra. Challenging the same, this appeal is filed 7. Now, the point for determination is:- “Whether the prosecution proved its case for the offence punishable under Section 302 IPC against the appellant/accused, beyond all reasonable doubt?” 8. Sri C.Padmanabha Reddy, learned senior counsel appearing for the appellant contended that there are discrepancies in the evidence of P.Ws.1 and 3 with regard to the main fabric of the prosecution case; that on own saying of P.W.1, it is clear that Ex.P1 was brought into existence during the course of investigation and, therefore, it is hit by Section 162 Cr.P.C.; that it is highly improbable to believe that the accused would be present in the room after knocking the doors of his room by P.Ws.1 to 4 as there was a scope for the accused to run away from the back door of the house; that the children, who were admittedly present where the incident has taken place and the father of the deceased, who also rushed to the scene of occurrence, have not been examined; that the arrest of the accused and recovery of M.O.1 are false, because according to P.W.1 the accused was arrested immediately after the occurrence, as the neighbourers caught hold of him and handed over to the police and the said evidence is quite contrary to the evidence of P.W.9, who stated that the accused was arrested on 07.07.2000; that there was no indication about breaking of the doors when the police observed the scene of occurrence; that the arrest of the accused and seizure of M.O.1 at his instance is a new fact and that the police did not find MO.1 at the house; that the evidence of P.Ws.1 and 3 is highly improbable and, therefore, he prays to set aside the conviction and sentence. 9. On the other hand, the learned Additional Public Prosecutor contended that P.Ws.1 and 3 are the natural witnesses to be present at the time of incident; that they have no grouse or enemity against the accused to implicate him falsely in a case of this nature; that the discrepancies with regard to the arrest of the accused and giving report to the police and knocking the doors, are bound to occur as they were made to depose about the incident which took place about six years prior to their examination and those discrepancies do not go to the root of the prosecution case and there is a scope or possibility for them to rush to the scene of occurrence which is not in dispute and to witness the incident, that in the absence of any motive, the false implication of the accused by P.Ws.1 to 3 cannot be accepted; that the trial Court after an elaborate consideration of the evidence on record rightly found him guilty and there are no grounds to interfere with the same. 10. P.W.9, is the investigating officer who conducted inquest on the dead body of the deceased. The inquest mediators opined under Ex.P4 that the deceased died as a result of multiple injuries. 11. P.W.5 is the Doctor who conducted autopsy on the dead body of the deceased and found the following anti mortem external injuries: 1) Stab wound 3 x 1 cm muscle deep, vertical, 1 cm below and to the left of the mouth. 2) Stab wound 2 cm x 1 cm muscle deep, on lower lip on right side. 3) Stab wound of 6 x 2 cm bone deep, oblique, 1 cm below and to the right of the lower lip. 4) Incised wound of 1.5 cm long and 1 cm below injury No.3. 5) Cut throat injury of 10 x 4 cm going deep, on front of the neck, the muscles, blood vessels and thyroid cartilage are cut across. 6) Stab injury of 3 x 1.5 cm, towards and going upto the upper lobe of the left lung and injuring the latter. It is oblique and placed in the left supra clavicularegion there is blood in the left plural cavity. 7) Stab injury of 7 x 3 cm lung deep. 1 cm medial to the right nipple, with fractures of the ribs and injury to the right lung with blood in the right plural cavity. 8) Stab injury of 3 x 0.5 cm lung deep, 6 cm below the left nipple in the mid clavicular line. There is a tear in the left lung. 9) Stab injury of 3 x 1 cm lung deep, 3 cm above the costal margin on the anterior axillary line on right side with a tear in the lung. 10) Stab injury of 1 x 1 muscle deep, 3 cm lateral to left nipple. 11) Stab injury of 2 x 1 cm muscle deep, on right supra scapular region. 12) Stab injury of 3 x 1 cm muscle eep on left supra scapular region. 13) Stab injury of 2 x 1 cm muscle deep right infra scapular region. 14) Stab injury of 1 x 0.5 cm muscle deep, 2 cm medial to injury No.13. 15) Stab injury of 4 x 2 cm muscle deep, right renal area. 16) Stab injury of 3 x 1 cm muscle deep, 1 cm lateral to injury no.15. 17) Stab injury of 3 x 1 cm muscle deep 1 cm lateral to injury no.16. 18) Stab injury of 3 x 2 cm muscle deep 1 cm lateral to injury No.17. 19) Stab injur of 3 X 1.5 cm muscle deep 1 cm below injury no.17. 20) Stab injury of 3 x 1.5 cm muscle deep 1 cm medial to injury no.19. 21) Stab injury 3 x 1.5 cm muscle deep 3.5 cm below and lateral to injury No.19. 22) Incised wound of 4 cm long on back of left hand and left index finger. 12. The Doctor opined that all the injuries are possible with a knife like M.O.1 and issued Ex.P5 post mortem report. No doubt the Doctor stated that M.O.1 on one side it is blunt and on other side it is sharp comparatively. According to him he found both sides of injuries are sharp. Except that discrepancy, nothing has been elicited from the evidence of P.W.5 to discredit his testimony. Insofar as the homicidal nature of the death of the deceased is concerned, from the evidence, at best, it can be said that M.O.1 is not the weapon of offence used in the commission of offence, because it was not having sharp edges on both sides and as the Doctor has specifically stated that on both sides of the injuries there are sharp edges, which suggest that a knife which was having sharp edges on both sides is the weapon of offence. 13. There is no dispute about the scene of occurrence. P.W.9 the investigating officer deposed that after receiving the information from P.W.7, he went to the scene of occurrence, which is located at house bearing No.2-2-185/282/B-2, Mallikarjuna Nagar, Amberpet, Hyderabad and they found the deceased was lying in a supine position with injuries. The clothes of the deceased were seized which contained bloodstains. The incriminating material found at the scene of occurrence was seized by the police. The accused did not deny about taking place of the incident at his house. The scene of occurrence is at one portion and there are eight portions in the house. P.W.1 and his family were residing in one portion and P.W.3 and his father were residing in another portion. The accused and his family were residing in one portion and in a small room, father-in-law of the accused by name Bihari Ramulu was residing as on the date of the incident. The incident is alleged to have taken place at about 11.30 P.M. on 05.07.2000. P.Ws.1 and 3 stated that they are the tenants in respect of the house belonging to the father-in-law of the accused by name Behari Ramulu. The said fact is not in dispute. What accused suggested to P.Ws.1 and 3 is that they have not witnessed the incident and gave a false evidence at the instance of the police and Behari Ramulu, it is denied. P.W.1 deposed that after returning to his house at about 08.30 P.M. while he was taking food, he heard some quarrel and cries of children, then he went to the room and woke up the father- in-law of the accused. They both went to the portion of the accused and broke open the doors and found the accused holding a knife sitting on his wife and the wife of the accused was found lying with an injury on her throat. Then the father-in-law of the accused asked the persons present there to caught hold of the accused, but the accused ran away. He set the criminal law into motion by narrating the incident to P.W.7 by going to the police station. The earlier report given by him would go to show that on the date of the incident i.e., on 05.07.2000 at about 08.30 P.M. when he returned home from duty, by that time deceased did not return home and she returned home very late. On her arrival there were noises of quarrel and the children were crying and there were huge cries. Then he went to Behari Ramulu and brought him to their portion. The doors were found bolted from inside and there were shoutings from inside. Himself, his younger brother P.W.3 and Behari Ramulu broke opened the doors and noticed deceased found lying on the ground and her husband (accused) sat on her and stabbing with knife indiscriminately. It was about 11.45 P.M. On seeing them, the accused opened the roadside doors and fled away with knife. So the earliest version as stated in Ex.P1 is completely in corroboration with the evidence of P.W.1. His evidence is clear that it is the accused who sat on the deceased and stabbing the deceased with a knife. Once the recitals in Ex.P1 are found to be true and trustworthy and not hit by Section 162 Cr.P.C. statement, the recitals can be used to corroborate the evidence of P.W.1. 14. The basis for the senior counsel’s argument that Ex.P1 was hit by Section 162 Cr.P.C. is that the admission made by P.W.1, that he went to the police station and informed the Sub-Inspector of police about the incident and the police came to the spot and before going to the police station the locality people caught hold of the accused. When he informed the police, the police came there and apprehended the accused. Again the Sub-inspector of police took him to the police station and recorded his complaint in the early hours of next day and that the contents of Ex.P1 complaint were read over to him and thereafter he signed. So, there is no discrepancy about the fact that at the instance of P.W.1, Ex.P1 was scribed. P.W.7 also stated that when P.W.1 came to the police station at about 00.30 hours he recorded his statement and registered a case in crime No. 212 of 2000 under Section 302 IPC and issued Ex.P7 F.I.R. But the evidence of P.W.1 would go to show that in the first instance, the police came to the scene of occurrence and later P.Ws.1 and 7 went to the police station and Ex.P1 was brought into existence. If the evidence of P.W.1 is to be accepted on this aspect, as rightly contended by the learned Senior Counsel it is hit by Section 162 Cr.P.C., but the incident is alleged to have taken place in the year 2000 whereas P.W.1 was testifying about the incident after lapse of six years. So some discrepancies are bound to occur even in a case of a truthful witness, who was made to depose about the incident after lapse of several years and that discrepancy cannot be given much importance. Therefore, the admission made by P.W.1 that he along with the Sub- Inspector came to the spot before registering the case, cannot be accepted, because it is only an inadvertent mistake which occurred due to paucity of time. Once Ex.P1 was brought into existence at the time and date mentioned on it and it is not a fabrication to implicate the accused falsely, the recitals can be used to corroborate the evidence of P.W.1. P.W.1 has no grouse or enemity against the accused so as to implicate him falsely in a case of this nature. Since P.W.1 is residing as a tenant of the house of the father-in-law of the accused, which fact is not in dispute, he is a natural and probable witness to be present and if there is any reason for him to see the incident, his evidence cannot be brushed aside. P.Ws.1 and 3, are the brothers, and they were admittedly staying in the two portions separately along with their family members and there is quite possible for them to rush to the scene of occurrence on hearing the commotion in another portion of the house. It is quite possible when the accused was stabbing the deceased, the deceased would have raised cries. Similarly, the deceased and the accused were having children who are admittedly staying in the room and there is a possibility for the children to raise cries. Therefore, it is quite possible for P.Ws.1 and 3 to rush to the scene of occurrence after hearing the cries and to witness the incident. Their evidence is clear that the accused sat on the deceased and stabbing the deceased indiscriminately. After a lengthy cross-examination, nothing has been elicited in their cross- examination as to the reason why they have to speak false against the accused. Some discrepancies are bound to occur even in a case of truthful witness. Because P.W.1 stated that they broke open the door without knocking the doors after hearing the cries, whereas P.W.3 stated that after knocking the doors for some time, they broke open the doors and that the police arrested the accused. So these discrepancies in our opinion would not in any manner affect the main fabric of the prosecution case. Therefore, the trial Court rightly placed an implicit reliance on the evidence of P.Ws.1 and 3. 15. Though the prosecution is relying upon the evidence of P.Ws.8 and 9 with regard to the arrest of the accused and seizure of blood stained banian and the blood stained knife at the instance of the accused, at the same time the evidence on record would clearly go to show that M.O.1 knife does not contain any human blood stains and according to the medical evidence M.O.1 cannot be said to be the weapon of offence. 16. In view of the fact that there is a discrepancy with regard to the arrest of the accused and recovery of M.Os.1 and 2, from the evidence of P.W.1 with that of the evidence of P.W.9, we are unable to place any reliance with regard to the arrest of the accused and seizure of M.O.1 knife at the instance of the accused. Therefore, even if the arrest of the accused and recovery of M.O.1 and the blood stained banian from his possession are to be disbelieved, still the evidence of direct eye witnesses P.Ws.1 and 3 would clearly go to show that the accused is the assailant of the deceased. 17. With regard to the non-examination of the father of the deceased as well as the children, nodoubt the prosecution ought to have examined the father of the deceased. May be he was not interested in the case of the prosecution, because admittedly as seen from the evidence of P.W.9 the deceased was not the natural daughter of Behari Ramulu. The deceased was born through the first husband of her mother by name late Ramaiah. Therefore, the non-examination of Behari Ramulu cannot be said to be fatal to the case of the prosecution because the evidence of the independent witnesses P.Ws.1 and 3 can safely be accepted in view of their presence at the time of incident. With regard to the non-examination of the children also, it cannot be said that the evidence of the prosecution has to be disbelieved on that ground. The prosecution is not obliged to examine witness after witness to speak about the same fact. Therefore, in view of the fact that two independent witnesses were examined, the non- examination of Bihari Ramulu and the children of the accused and the deceased is not fatal to the case of the prosecution. Therefore, the trial court rightly placed reliance on the evidence of P.Ws.1 and 3 whose evidence can be accepted as there was no grouse or enemity for them to implicate the accused in a case of this nature. The accused has taken a plea of alibi stating that he was not present at the time of the incident and by the time he returned home, the deceased also sustained injuries on her body. To substantiate the same, he has not examined any witness to show that he returned to the house after 01.30 A.M. on the next day. There cannot be any dispute when the accused takes the plea of alibi, the burden is on him to establish the same. Except taking plea of alibi, the same is not substantiated with any other evidence. Therefore, the plea of alibi can be ruled out. 18. In view of the above discussion, we have no hesitation in holding that P.Ws.1 and 3 are truthful witnesses and they have no grouse or enemity against the accused to implicate him falsely. If their evidence is accepted as true, it leaves no room to doubt that it is the accused, who stabbed the deceased indiscriminately with knife. The deceased sustained as many as 20 injuries with cumulative effect and all the injuries are the result of the death of the deceased. Therefore, the intention of the accused can be gathered from the weapon of offence used in the crime and the nature of injuries sustained on the parts of the body of the deceased. Therefore, the trial court rightly found the accused guilty. Absolutely, there are no grounds to interfere with the same. 19. In the result, the Criminal Appeal is dismissed confirming the judgment, dated 08.12.2006 in S.C.No.466 of 2004 on the file of I Additional Metropolitan Sessions Judge, Hyderabad. __________________ A. GOPAL REDDY. J _____________ K.C.BHANU.J 17th August 2010 lmv.