HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.364 OF 2006 Dated:05-07-2010 BETWEEN: B.Venkatesh @ Venkat …Appellant AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.364 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) Appellant-A.1 along with A.2 was put on trial for the offence under Section 302 r/w 34 and 109 I.P.C. in S.C.No.124 of 2005 on the file of Additional Metropolitan Sessions Judge for the trial of Communal Offence Cases-cum-VII Additional metropolitan Sessions Judge-cum- XXI Additional Chief Judge, Hyderabad. The case against A.2 stood abated. By judgment, dated 27.10.2005 the appellant-A.1 was found guilty for the offence under Section 302 I.P.C. and was accordingly convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.250/-, in default, to undergo simple imprisonment for one year. 2. The case of the prosecution as narrated during the course of trial, in brief, is as under: P.W.1 set the criminal law into motion stating that he is the owner of premises bearing No.1-4-61/21/2, Bonthal Basti, Ranga Nagar, Bholakpur, Musheerabad, Hyderabad, and that since December, 2003 onwards B.Narasmiha (hereinafter referred to as ‘deceased’), a car driver, was residing in a room as a tenant along with his wife and children. The deceased’s wife Nagamma-A.2 is a maidservant. On 24.6.2004 at 6.00 a.m. his (P.W.1) neighbour-Sangeeta came to him and informed that the deceased was lying dead in a pool of blood with cut injuries on his throat. On that, he went to the deceased and found the deceased in a pool of blood with throat cut injuries, under the shed, opposite to his room. A.2 and her children were weeping at the dead body for help. A.2 informed that till midnight her husband (deceased) and his friend Venkati and her cousin brother were sitting under the shed in front of the house and were having drinks; in the morning at about 6.00 a.m. her daughter Pravalika came out of the house and found the deceased lying dead in a pool of blood with throat cut injuries under the shed. On that, P.W.1 went to the police station and informed the incident to the police. P.W.12-Sub-Inspector of Police recorded the statement of P.W.1 under Ex.P.1 and on that basis, registered a case in Crime No.228 of 2004 under Section 302 I.P.C. and issued Ex.P.13-F.I.R. P.W.13-Inspector of Police took up further investigation, proceeded to the scene of offence, conducted inquest over the dead body in the presence of P.W.5 and L.W.7, prepared Ex.P.3 inquest panchanama, seized the bloodstained clothes, bloodstained control earth, bloodstained bed-sheets, marked as M.Os.2 to 5, examined P.Ws.1 to 3, 9 and 11 and recorded their statements. He shifted the dead body to Gandhi Hospital with a requisition to conduct autopsy. P.W.4-Dr.Rajender Kumar conducted autopsy over the dead body of the deceased and issued Ex.P.12-post- mortem certificate. P.W.13 arrested A.2 on 24.6.2004 and A.1 on 1.9.2004. He recorded the confessional statement of A.2 in the presence of panchayatdars-P.W.6 and another under Ex.P.4, and in pursuance of confession, A.2 led the police to her house and produced the weapon i.e. axe-M.O.1 used in the commission of offence concealed in the sajja of the house. He seized the M.O.1 under the cover of Ex.P.5-seizure report. After completion of investigation and after receipt of relevant reports, P.W.13 laid the charge sheet against A.1 and A.2 for the said offences. On committal, the learned Sessions Judge framed charges under Section 302 I.P.C. against A.1; under Section 302 r/w 34 I.P.C. against A.1 and A.2; and under Section 302 r/w 109 I.P.C. against A.2. The charges were read over to the accused in Telugu, and the accused denied the same and claimed to be tried. 3. To bring home the guilt of the accused, the prosecution examined P.Ws.1 to 13 and proved 15 documents under Exs.P.1 to P.15 and exhibited the case properties-M.Os.1 to 5. The appellant was examined under Section 313 Cr.P.C. on the incriminating evidence appearing in the prosecution witnesses. He denied the same, but not led any evidence. Since A.2 died on 8.1.2005 while undergoing treatment, the proceedings against her stood abated. 4. The learned Sessions Judge upon consideration of evidence on record and relying upon the evidence of P.W.11 and P.W.2, the daughter of the deceased and A.2, found the appellant guilty for the offence punishable under Section 302 I.P.C. and accordingly convicted and sentenced him to undergo imprisonment as aforementioned. 5. In the appeal, the appellant is provided legal assistant by engaging Smt. R.Raghamma as the advocate who filed the appeal is no more. 6. Learned counsel for the appellant contends that except the evidence of P.Ws.2 and 11, there is no other evidence to connect the appellant with the crime. A.2 is the daughter of senior paternal uncle of P.W.11. P.W.11 who was said to be eyewitness to the incident did not raise any cries when the incident took place drawing the attention of the locality people nor he disclosed the incident of hacking of the deceased to anybody including P.W.9 and therefore, it clearly discloses that P.W.11 is a planted witness and he has not witnessed the incident. Similarly, P.W.2, the daughter of deceased and A.2 has not disclosed the incident to P.W.3, who is her paternal grandfather and also to P.W.4, but she stated that some unknown persons killed the deceased. Therefore, the prosecution miserably failed to bring home the guilt of the appellant beyond reasonable doubt and he is entitled for acquittal. 7. Per contra, learned Public Prosecutor contended that P.W.2 categorically stated that her mother-A.2 told her that she should not disclose the factum of killing the deceased to anybody and if she (P.W.2) discloses the same, she would commit suicide, and therefore, this is the reason for P.W.2 in not disclosing the incident to her paternal grandfather-P.W.3 and also P.W.4 on the next day morning. Similarly, P.W.11, whose evidence clearly discloses that he along with A.2 and A.1 consumed toddy, stated that A.2 brought M.O.1 axe and handed over it to A.1 for the purpose of killing the deceased. The M.O.1-axe was recovered at the instance of A.2. P.W.11 has not disclosed the incident to anybody for the reason that the locality people suspected him and he was confined in a room and was beaten up by the people. The evidence of P.Ws.2 and 11 coupled with the evidence of P.W.9 proves that A.1 at the instance of A.2 hacked the deceased, and therefore, the conviction and sentence recorded under Section 302 I.P.C. against the appellant needs no interference by this Court. 8. In the light of the above submission, the point that arises for consideration is, whether the prosecution is able to bring home the guilt of the appellant for his committing the murder of deceased at the instigation of A.2? 9. Admittedly, the incident had taken place in the night of 23/24-6- 2004. The deceased, A.2 and P.W.2 were staying in the house of P.W.1, who set the criminal into motion. P.W.2, aged about 13 years as on the date of incident, deposed that in the night of 23.6.2004, after attending to work, she returned to the house, had dinner and slept in the house. At that time, she had noticed her mother-A.2 talking with A.1 and P.W.11. Thereafter, she went to the bed. During the midnight, she came out of the house and saw A.1 holding a cover. She heard A.2 asking A.1 to go away; A.2 paying some money to A.1 and stating that she will look after the other things. P.W.11 was also present at that time along with A.1 and A.2. After A.2 returned from bathroom, she asked her as to why she killed her father-deceased. On that, A.2 stated that since he was harassing her, she got him killed, and that she further told her that she should not disclose said fact to anybody otherwise, she would commit suicide. Therefore, she kept quiet without disclosing to anybody. In the cross-examination she admitted that P.W.11 and A.1 were staying nearby her house in a separate room and she added that previously they used to stay in the same house of P.W.1. She admitted that she went to the house of P.W.4 on 24.6.2004 in the morning at about 6.00 a.m. and stated to him that some unknown persons killed her father (deceased). P.W.11 stated that A.2 is daughter of his senior paternal uncle. Husband of A.2 died about one year back. On the date of incident, deceased went to attend a function. After returned back to the house during evening hours, the deceased and A.1 sat together and consumed liquor. He brought one toddy bottle at the request of A.2 and they had consumed said toddy inside the house. A.2 brought an axe and handed over the same to A.1 for the purpose of killing her husband. A.2 stated previously that she would kill her husband. A.2 handed over said axe to A.1. He advised A.2 not to resort to the acts of killing her husband, but A.2 did not listen his words. A.1 then hacked the deceased using the axe. A.2 gave clothes to A.1 and also an amount of Rs.300/- and asked him to go away and that she would take care of the matter. A.2 handed over axe to him and requested him to conceal the same. He refused to take the axe with him and he went away to his house. Police enquired him on next day morning. Thus the evidence of P.W.11 clearly indicates that A.1 hacked the deceased using the axe supplied by A.2, and that P.W.11 was present when the incident took place and he witnessed the incident. In the cross-examination, he stated that he went to the house of P.W.9 for the purpose of taking dinner at about 10.00 p.m., that after taking dinner, A.2 came to the house of P.W.9 and called him, and therefore, he went to the house of A.2. A.2 alone came accompanied with a small baby and called him at about 11.00 p.m. He further stated that when the incident took place, he did not raise any cries to draw the attention of locality people. He denied the suggestion that he did not witness the incident and at the instance of police he is deposing falsely. He denied the suggestion that he, by colluding with another, hacked the deceased since A.2 handed over axe to him. At about 12.00 midnight he went to the room and slept. He did not disclose the incident of hacking the deceased to anybody including P.W.9. He did not inform about the incident either to P.W.1 or to any locality person. He added that the locality people who gathered there questioned and beat him and kept him in a room suspecting his role and they gave complaint to the police. Though he was cross-examined at length, no useful material has been extracted to discredit his testimony. P.W.11, who is related to A.2, was more interested to save A.2 and therefore, he had not disclosed the commission of offence by A.1 and A.2 to anybody in the locality. Therefore, there is every possibility of his concealing the offence committed by A.1 and A.2 to save A.2. In pursuance of the confessional statement made by A.2, M.O.1-axe, which was used in the commission of offence, was recovered and it was also sent for Forensic Science Laboratory. The bloodstains contained on M.O.1- axe were found to be of human ‘O’ group blood as per the report under P.15. P.W.9 deposed that on 23.6.2004 she went to the house of A.2 for the purpose of calling P.W.11 for meals. At that time, she saw A.1, A.2, L.W.3 and P.W.11 talking with each other. She went to the house of A.2 and called P.W.11 for meals around 10.00 p.m. After taking dinner, P.W.11 went away. On the next day morning, she woke up and saw the door of her house closed from outside. Then she went to upstairs of the house and heard the locality people talking that the husband of A.2 was murdered by A.2. In the cross-examination, she stated that she observed P.W.11, A.1 and A.2 talking in their house. She admitted that P.W.11 was staying separately in another room during that period. Therefore, from her evidence, it is clear that P.W.11 was present in the house prior to the incident, consumed toddy as stated to by P.W.11 and later again after taking dinner he went to the house of A.2. P.W.2, who is a natural witness, stated that her mother-A.2 requested her not to disclose the incident to anybody and if she discloses, she would commit suicide, and therefore, it is for this reason, P.W.2 had not disclosed the incident to anybody. In view of the same, the lower Court after considering the entire evidence in proper perspective rightly concluded that it is A.1 who committed the murder of the deceased at the instance of A.2 with M.O.1-axe provided by her. We are not persuaded to come to a different conclusion than the one reached by the lower Court. 10. In the result, the appeal is dismissed confirming the conviction and sentence recorded by the lower Court against the appellant. _______________ A. GOPAL REDDY. J _________________ K.C.BHANU.J JULY 05, 2010 Tsr.