HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL NO.1785 OF 2007 AND CRIMINAL APPEAL NO.194 OF 2008 DATED 01.11.2011 CRIMINAL APPEAL NO.1785 OF 2007 Between: Jammu Durga Prasad(A-3) …Appellant/A3 And The State of A.P. rep. by Public Prosecutor ….Respondent CRIMINAL APPEAL NO.194 OF 2008 Between: Mareedu Siva and another …Appellants/A1 & A2 And The State of A.P. rep. by Public Prosecutor ….Respondent The Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL NO.1785 OF 2007 AND CRIMINAL APPEAL NO.194 OF 2008 COMMON JUDGMENT: (Per Hon-ble Sri Justice A.Gopal Reddy) These two criminal appeals arise out of the same judgment, hence, they are heard and disposed of by this common judgment. 2. The appellant/Jammu Durga Prasad/A3 and the appellants/A1 and A2/Mareedu Siva and Mamidi RamaKrishna were put on trial respectively for the offences under Sections 302 read with 34 and 307 read with 34 IPC by the Metropolitan Sessions Judge, Vijayawada in S.C.No.114 of 2006, dated 05.10.2007 and were convicted for the said offences and sentenced to imprisonment for life and fine of Rs.1,000/- each, and rigorous imprisonment for 10 years and fine of Rs.1,000/- each in default simple imprisonment for six months on both counts. 3. The gravamen of the charges against the accused is that on the intervening night of 4/5.10.2004 at about 1 ‘O’ clock A1, the brother of the deceased with the assistance of A2 and A3 committed the murder of Mareedu Sambasiva Rao (hereinafter referred to as “the deceased”) by entering into the house of the deceased and stabbing him intentionally. Further, in the course of action, when PW-1 (M.Ramadevi), the wife of the deceased intervened, they attempted to cause the death by stabbing her with knives and committed the above said offences. 4. The prosecution story, as narrated during the course of trial, is as follows: The deceased is resident of Vijayawada and was running cycle stand near West Railway Booking Office, Vijayawada and he sub-leased it to A2. As A-2 was not paying the lease amounts regularly, the deceased removed him and himself running the cycle stand and did not return the advance amount of Rs.10,000/-. Therefore, A-2 bore-grudge against the deceased. On 05.10.2004 at 01.00 AM, A1 along with A2 who was working under him and another son of Jammu Raju, who was having tea carriage near Railway Station, went to the house of the deceased, knocked the door and when opened, they stabbed the deceased and his wife- PW.1 with knives. On hearing the shouts of injured, the neighbours gathered and caught hold of A1 and A2 and tied them to a pole and A-3 escaped from the scene of offence. PW.12- Assistant Sub-Inspector of Police who was on patrolling duty received a message at 01.10 AM to the effect that two persons were stabbed at Kabela Centre, Ramarajya Nagar, he immediately took two Rakshak vehicles and rushed to the scene of occurrence. The house belonged to PW.4, which was divided into portions. The deceased and his wife were staying in one portion. PW.12 took the injured to Government Hospital, Vijayawada. A-1 and A-2 were taken in another vehicle to I-Town Police Station. PW.12 recorded the statement of the deceased which is marked as Ex.P.18 and went to the Police Station and registered a case in Crime No.405 of 2004 for the offence under Section 307 read with 34 IPC, then he went to the hospital and recorded the statement of PW.1. Subsequently, he went to scene of occurrence and examined PWs.2 to 6, who stated that they did not witness the occurrence. He also prepared the observation report Ex.P-6 in the presence of PWs.7 and 8, recovered a knife-M.O.1 and the motor-cycle M.O.2, then he arrested A-1 and A-2 and sent them to judicial remand. He arrested A-3 on 08.10.2004 at 2 p.m. under cover of panchanama Ex.P-8 and also recovered a knife M.O.3 from the side of canal near Ramalayam in the presence of PWs.7 and 8 under Ex.P-9 report. On receiving the requisition from the Sub-Inspector of Police, PW-10-Magistrate recorded the dying declaration of the deceased under Ex.P-12 at Vijetha Hospital, Eluru Road, Vijayawada and also recorded the statement of PW-1 under Ex.P-11. While undergoing treatment, the deceased succumbed to the injuries on 30.10.2004 at 1.30 p.m.. After receiving the death intimation, PW-12-Assistant Sub- Inspector of Police altered the section of law under Ex.P-21 alteration memo. PW-14, the Inspector of Police took up investigation from PW-12, held inquest over the dead body on 31.10.2004 under Ex.P10 and sent the dead body of the deceased for post mortem examination where Dr.Seetharamaiah conducted autopsy and issued post mortem report Ex.P-22 and the doctor opined that the death was due to complications of injuries due to personal negligence in not taking medicines properly as prescribed by the doctor. PW-14 also sent M.Os. 1 and 3 to the forensic science laboratory for examination and opinion and Ex.P-23 is the letter of advice. After completion of investigation, PW-14 filed the charge sheet against the accused. 5. On committal, charges under Sections 307 read with 34 IPC and 302 read with 34 IPC have been framed against the accused, read over and explained to them for which they denied the same. 6. In order to substantiate its case, the prosecution examined PWs. 1 to 14, marked 23 documents as Exs.P1 to P-23 and exhibited MOs.1 to 3. After closer of the prosecution evidence, the accused were examined under Section 313 Cr.P.C by touching the incriminating evidence appearing against them in the evidence of prosecution witnesses and the appellants denied the same by pleading innocence. 7. The accused did not choose to examine any witness on their behalf, but marked three documents as Exs.D-1 to D-3. 8. Learned Sessions Judge on appreciation of oral and documentary evidence found the accused guilty for the charges with which they are charged, convicted them for the said charges and sentenced them as stated above. 9. Heard Sri T.Bali Reddy, learned Senior Counsel appearing for A3, Sri S. Surender Reddy, learned counsel appearing for A1 and A2 and the learned Additional Public Prosecutor representing the State. 10. Sri T. Bali Reddy, learned Senior Counsel appearing for A3 had taken us through the entire evidence on record and contended that PW1, who is an injured-eyewitness and whose statement was recorded under Ex.P-11 has stated that A-1 took a sickle and came along with three others into her house and stabbed them, when questioned about stabbing, PW-1 gave answer to the effect that two persons who came along with Siva stabbed her, that Siva and another person stabbed her husband and she cannot identify those two persons as per Ex.D-3. Even in the dying declaration under Ex.P-12, the deceased only mentioned about the son of Jammu Raju. Whereas, under Ex.P-18, it is stated that sons of Jammu Raju who have a tea carriage near railway station came to her house at 1 ‘O’ clock in the night on 04-10-2004 and knocked the door. The identity of A-3 has not been established and also his participation in the offence. As such, the learned Senior Counsel would submit that the convictions and sentences recorded against A-3 are liable to be set aside. 11. Sri S.Surender Reddy, learned Counsel appearing for A-1 and A-2 adopting the arguments advanced by the learned Senior Counsel appearing for A-3 would contend that PW-1 has stated that all the accused inflicted injuries on her and when A-1 inflicted three injuries on her husband and not stated about the participation of A-2, the conviction recorded for the offence under Section 302 r/w 34 IPC cannot be maintained, and therefore, A-2 is entitled for acquittal. Even with regard to A-1, the evidence adduced is that he stabbed the deceased with sickle but not with knife-M.O.1, the learned counsel contended that the deceased was admitted in the Hospital for the injuries and was discharged on 11.10.2004 and again re-admitted for post operative complications on 13.10.2004, therefore, A-1 cannot be convicted for the offence under Section 302 r/w 34 IPC. 12. Per contra, the learned Additional Public Prosecutor supported the judgment of the Court below contending that the dying declaration of the deceased has been corroborated with the medical evidence and also the evidence of PW-1. Hence, the convictions and sentences recorded by the Court below inspire confidence and the convictions and sentences imposed by the trial Court need no interference by this Court. 13. In the light of the above, the point that arises for consideration in these appeals is whether the prosecution was able to bring home the guilt of the appellants beyond all reasonable doubt for the offences charged and whether the convictions and sentences are liable to be set aside or modified. 14. PW-1, the injured eyewitness was examined by PW-11- Doctor. It is stated by PW-1 that on the intervening night of 4/5-10- 2004, A1 to A3 came to their house and after knocking the doors, the deceased opened the doors and on opening the doors, A1 to A3 entered into the house and A1 stabbed the deceased with knife on the left side stomach stating that why he was removed from the cycle stand and when PW-1 tried to intervene, A-1 to A-3 inflicted stab injuries on her and pushed her towards the kitchen room, A2 and A3 also stabbed her with knives on her back, and as she was carrying pregnancy of seventh month, she was stabbed on her right shoulder and also on her left hand. Her husband was stabbed on stomach, head and on his right shoulder. A1 inflicted all the three injuries on her husband. When PW-1 raised cries, neighbours entered into the house. PW.4-Shaik Khasim, the owner of the house and others witnessed the incident and PW.4 and others caught hold of A1 and A2 and A3 escaped from the place and on information given to the police on phone, two jeeps came to their house and took her, her husband, and A1 and A2 in a jeep. In the cross-examination PW-1 stated that A2 worked with them in the cycle stand and she has not stated before the police that A2 and A3 are friends of A1. She stated that A3 was the son of a tea vendor. She also stated that she was there with her husband when his statement was recorded by the police. She also stated that she was also present when the Magistrate recorded the statement of her husband and they were discharged from the hospital on 11.10.2004 and the deceased was re-admitted in the hospital on 20.10.2004. She did not state in Ex.D.3 to the Magistrate to the effect that she cannot identify the other two assailants and A1 was armed with a knife and not a sickle. The neighbours caught hold of A1 and A2 along with knives and they were handed over to the police. A1 and A2 were tied to the pillar of the house. 15. PW2 is no other than the brother of the deceased and the other witnesses PWs.3, 4, 5, 6, 7 and 8 were declared hostile as they did not support the case of the prosecution. PW.10-the Magistrate on receipt of requisition from the police, recorded the statement of the deceased under Ex.P.12 and the statement of PW.1 under Ex.P.11. In the cross-examination, PW.10 admitted that PW.1 stated that A1 came to their house with sickle in his hand accompanied by three other persons. 16. PW.11-Dr. Rallapalli Venkata Sivaramprasad, , Consultant Surgeon, Vijetha Hospital, Eluru Road, Vijayawada deposed in his evidence that on 05.10.2004 at about 3.15 AM PW.1 and the deceased were brought to the casuality and he examined PW.1 and found the following injuries: 1. Multiple laceration stab wounds on the upper back and trunk. Injury No.1: 3 x 1.5 cm muscle deep about 2.5 cm on the left shoulder area. Margins irregular. Injury No.2: 4 x 2 cms x 2 cms muscle deep wound right supra scapular area. Injury No.3: Stab wound, 3 x 2 x 2 cms and 2 x 2 x 1 cm and 2 cm x 1 cm x 1 cm on the right peraspinal area at 16 to 18 level. Slight oozing of blood present (three injuries at one area) Injury No.4: Deep laceration over posterior aspect of right arm 4 cm x 3 cm muscle deep. Multiple lacerations on the back of right shoulder 6 x 12 cms muscle deep; 3 x 3 x 2 cms, 3 x 2 x 2 cms, 3 x 2 x 2 cms, 4 x 2 x 1 cms, and 5 x 2 cms (five injuries in that area.) According to the doctor, all the injuries are grievous in nature and might have caused by sharp edged weapon. Dr. J.Srinivas issued Ex.P.15-wound certificate of PW.1 basing on the case sheet. He also examined the deceased-Sambasiva Rao and noted following five injuries: 1. Stab injury (deep lacerations 6 x 2 x 2 cms) in the occipital region of the scalp. 2. Stab injury over the posterial aspect of right shoulder muscle deep 3 x 2 x 2 cms. 3. Stab injury over the posterial aspect of left shoulder muscle deep 4 x 2 x 2 cms. 4. Stab injury over the lower rib at T12 to L1 level posterior lateral aspect of left side of chest 3 x 2 x 2 cms muscle deep. 5. Another stab wound 3 x 2 cms leading into peritoneal cavity lateral aspect of lower chest. According to him, all the injuries are grievous in nature and might have caused by sharp edged weapon. The patient was operated on 05.10.2004 and was under treatment till 11.10.2004 and was discharged on 11.10.2004 from the hospital and again brought to the emergency ward on 21.10.2004 at 9.30 PM with fever chills, rigor vomiting and abdominal pain and he suffered left lung pneumonia with partial intestinal obstruction. The deceased was again operated for release of adhesion, the gall bladder was removed as it was inflamed post operatively pneumonia, pneumonia became worse and required ventilator care and he was treated by continuous renal replacement therapy and while undergoing treatment, he expired on 30.10.2004 at 01.30 PM. In the cross-examination, he stated that the injuries mentioned in Ex.P.15 are lacerations and there is no difference regarding the nature of stab injury. He further stated that there is no mention regarding muscle deep in Ex.P.15. If the weapon is sharp edged one, it results in clear cut injuries and if one of the edges of the object is blunt, it will split the skin and wound would appear as laceration. At the time, the deceased was brought to the hospital, he had spleen injury, multiple stab injuries, spleenic laceration, large amount of blood in the peritoneal cavity defect in the lateral part. 17. PW.12-Assistant Sub-Inspector of Police, deposed in his evidence that on 05.10.2004 while he was on night patrolling, he received a massage at 01.10.AM to the effect that two persons were stabbed at Kabela Centre, Ramarajyanagar, then he took one more vehicle ‘Rakshak’ and they went in two vehicles to the scene of offence, which is the house of PW.4 and found PW.1 and her deceased husband with bleeding stab injuries and were taken to the Government Hospital and A1 and A2 were taken to the Police Station and registered a case in Crime No.405 of 2004 under Section 307 read with 34 IPC and issued FIR under Ex.P.19. He recovered one knife-MO1 under Ex.P.6-observation report and he returned to the police station, arrested A-1 and A-2 on 08.10.2004 and A3 was arrested at West Railway Booking of Railway Station near big tree. As per the confessional statement of A3, MO3-knife was recovered under Ex.P.9. 18. PW.13-Dr Y.S.S.V.V.Prasad deposed in his evidence that Dr.M.Seetharamaiah issued Ex.P.22-postmortem report. As per post mortem report, the cause of death was due to complications of injuries. In the cross-examination, it is stated by him that spleen was completely removed by operation and the spleenectomy would be done when there was irreparable rupture of spleen. 19. In Ex.P.12–dying declaration, the deceased categorically stated that his brother Shiva (A1) and another person Ramakrishna (A2) worked in his cycle stand and he stopped their employment three days back as they were not collecting collections properly, and as they did not come since three days, today’s night i.e. on the night of Monday at 11 ‘O’ clock on 05.10.2004 Shiva, Ramakrishna son of Jammu Raju, whose name he did not know, were in a drunken state, came on motor cycle. The deceased further stated that all the three persons possessing knives, one after another stabbed the deceased in the right side of the stomach and left side of the stomach, on two shoulders and head. A1-Shiva stabbed on the left side of the stomach, A2- Ramakrishna stabbed on head and the third man stabbed on shoulders. When his wife-PW-1 intervened, they stabbed her also. On hearing the cries, the neighbours caught hold of Shiva and Ramakrishna and the third person escaped from the scene of offence. Whereas, Ex.P.11, the statement of PW-1 recorded by PW.10 reveals that on Monday night at 11 ‘O’ clock, A1 took a sickle and came along with others and stabbed, two persons who came along with Shiva stabbed her, Shiva and another person stabbed her husband. PW-1 stated that she cannot identify those two persons. 20. In view of the above evidence, the prosecution could able to establish that A1, who is the brother of the deceased and A2 along with a third person went to the house of the deceased and PW.1 and knocked the doors and when they opened the doors, they entered into the house and stabbed the deceased and PW.1 indiscriminately and when PW.1 intervened, they also inflicted the stab injuries on her. Further, the deceased could not identity the third person except stating the son of Jammu Raju. Whereas, in Ex.P.18, the statement of the deceased recorded by PW.12, the deceased stated that it is the sons of Jammu Raju. Since PW.1 could not identify A3’s presence and his inflicting injuries, we are of the considered view that A-3 is entitled for benefit of doubt and accordingly, the convictions and sentences recorded against him by the trial Court are liable to be set aside. 21. The next question that arises for consideration in this appeal is that as per the evidence adduced by the prosecution, whether A1 and A2 are entitled for lesser punishment for the offence under Section 304 Part-I of IPC. In VIRSA SINGH v STATE OF PUNJAB[1], the Supreme Court after discussing the four elements to bring the evidence under Section 300 of IPC held as follows: “Once the intention to cause bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.” While explaining the same, it was observed that: “In the absence of evidence, or reasonable explanation, that the accused did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise it would be perverse to conclude that he did not intend to inflict the injury that he did. Once that intent is established (and no other conclusion is reasonably possible in this case, and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury.” 22. In view of the principles laid down by the Apex Court in VIRSA SINGH case (cited supra), we are of the opinion that mere death of the deceased after 25 days of the incident itself is not sufficient to bring home the guilt of A-1 and A-2 for the offence under Section 304 Part-I of IPC, as the injuries were caused to the vital parts of the body with all preparedness. Therefore, the conviction recorded against A1 and A2 do not call for any interference. Accordingly, we confirm the judgment passed by the trial Court insofar as A-1and A-2 are concerned. 23. In the result, the Criminal Appeal No.1785 of 2007 is allowed and the convictions and sentences imposed against the appellant-accused No.3 for the offences under Sections 302 read with 34 IPC and 307 read with 34 I.P.C. by the Metropolitan Sessions Judge, Vijayawada in S.C.No.114 of 2006, dated 05.10.2007 are hereby set aside. The appellant/A3 is found not guilty of the said charges and he is acquitted of the same. He shall be set at liberty forthwith, if not required in any other crime. The fine amount, if any, paid by the appellant-accused No.3 shall be refunded. 24. In the result, the Criminal Appeal No.194 of 2008 is dismissed and the convictions and sentences imposed against the appellants-accused Nos.1 and 2 for the offences under Sections 302 read with 34 IPC and 307 read with 34 I.P.C. by the Metropolitan Sessions Judge, Vijayawada in S.C.No.114 of 2006, dated 05.10.2007 are hereby confirmed. _________________ A.GOPAL REDDY,J Dated: 01.11.2011 Kvrm/ccm ________________ R.KANTHA RAO,J HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL NO.1785 OF 2007 AND CRIMINAL APPEAL NO.194 OF 2008 (Common judgment of the Bench delivered by Hon’ble Sri Justice A.Gopal Reddy) Date:01-11-2011 [1] AIR 1958 SC 465