HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRIMINAL APPEAL No.1818 OF 2007 Date: 17-10-2011 Between Pangi Babu Rao. - - - Appellant/ Accused. AND The State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad. - - - Respondent/ Complainant This court made the following : JUDGEMENT: (per the Hon’ble Sri Justice G.Krishna Mohan Reddy) This Criminal Appeal is directed against judgment of conviction and sentence imposed in Sessions Case No.149 of 2007, dated 07- 11-2007, on the file of the Court of VIII Additional District and Sessions Judge (Fast Track Court), Visakhapatnam. 2. The Appellant is the Accused and the Respondent is the Complainant in the Sessions Case. For convenience sake, we refer them as arrayed in the Sessions Case. 3. The Accused was tried for the offence punishable under Section 302 IPC and was found guilty of committing the offence and sentenced to suffer Rigorous imprisonment for life with a direction to set off his remand period under Section 428 Cr.P.C. and to destroy M.Os.1 to 5 marked therein after the Appeal time is over, whereas aggrieved by it, the present Criminal Appeal has been preferred. 4. The prosecution version in a nutshell is as follows : The Accused is the resident of Kothapaderu Village, Paderu Mandal, Visakhapatnam District, whereas the De-facto complainant in the case (PW.1) is a resident of P. Gonduru Colony, Chinthapalli Mandal and native of Nadimpalem Village, Chinthapalli Mandal, Visakhapatnam District. PW.2 is a resident of Kothapadu and PW.3 resides near RMP Guest House, Paderu village, Chinthapalli Mandal. On 11-04-2007 at about 02-00 p.m. while PW.2 was sitting near the pan shop of PW.3 near a culvert at his village, the deceased came there on bicycle and the accused came there by walk from different roads and both of them met at the junction of the two roads and then the accused questioned the deceased as “Who are you?” then the deceased also questioned the accused similarly, then the accused took a pen knife (MO.3) from his waist and stabbed on the left side of the neck of the deceased, by reason of which, the deceased fell down along with his bicycle, following which the accused left the place. The incident was witnessed by PWs.2 and 3, who were present there at that time. Immediately thereafter, PW.2 went to the house of the deceased and informed PW.1 about the incident, following which, PWs. 1 and 5 went to the scene of offence and saw the dead body of the deceased. Later, PW.1 got written Ex.P-1 report through Korra Bonjibabu (PW.7) and went to the police station at Paderu and gave the report to PW.16, the Sub-Inspector of Police, Paderu P.S. at 03-15 p.m. on the basis of which, PW.16 registered the case in Crime No.38 of 2007 under Section 302 I.P.C. and issued F.I.R. (Ex.P-9) on 11-04-2007. A.V. Ramana (PW.17) The Inspector of Police concerned took up and conducted the investigation of the case. Further, the dead body was sent to the Community Health Centre, Paderu, where PW.14, Medical Officer conducted postmortem examination over the dead body and issued report opining that the deceased died due to loss of blood caused by a sharp edged weapon. Further, as per the investigation conducted the accused instantaneously killed the deceased and thereby he committed the offence punishable under Section 302 I.P.C. 5. During the trial of the case, on behalf of the prosecution, PWs. 1 to 17 were examined and Exs. P-1 to P-17 and MOs. 1 to 5 were marked whereas on behalf of the Accused neither oral evidence nor documentary evidence was adduced, whereas after observing necessary formalities and examining the evidence on record, the trial Court found the accused guilty of committing the offence punishable under Section 302 I.P.C. and sentenced him as stated supra, by reason of which the present Appeal has been preferred. 6. The learned defence counsel mainly attacks the conviction and sentence imposed by the trial Court on the following grounds : The evidence of PWs. 2 and 3 who spoke actually about the incident is not trustworthy and their evidence clearly discloses that they were planted as witnesses in the case. Further, PW.4 deposed that one Vemula Demudu was selling toddy at the scene of offence on that day but she was not examined before the Court though she was a material witness to speak about the incident, which is fatal. There is no consistency between the ocular evidence and medical evidence with regards to the injuries received and also with regards to from which angle the injuries were caused to the deceased. Further, Sayed Ahmaed Gouse (PW.12) examined as mediator for the arrest of the accused deposed to the effect that the accused was not the person arrested by the police in his presence with reference to this case, he contends that when a different person was arrested in connection with this case, it clearly rules out that actually the accused involved in the murder, which clearly emphasizes that subsequently a false case was foisted against the accused. Further, it is the testimony of Samarthi Gurumurthy (PW.2) that on the relevant date the police visited the village in between 02-30 and 03-00 p.m. and then he was examined by the police whereas, PW.1 deposed that he gave the report to the police at 03-15 p.m. and later the police visited the village which clearly provides that at first PW.2 was examined by the police at the village which therefore is to be taken as the First Information Report and thereby Ex.P-1 the so called report said to be given by PW.1 is hit by Section 161 Cr.P.C. which is also fatal to the prosecution case. Further, in any case, even according to the prosecution and the evidence recorded the offence took place following an altercation between the accused and the deceased and significantly there was no prior enmity between them to infer that the accused got intention to cause the murder of the deceased and in fact he only caused one injury and left the place without waiting there, which circumstances adequately establish even taking them as true and correct that the death was caused out of some provocation only and hence, the conviction and sentence under Section 302 I.P.C. are not tenable. He has also drawn the attention of this Court to relevant confessional and seizure reports pertaining to the accused, which provide that before the accused stabbed the deceased there was altercation between them in that context. His contention is that the so called confessional statement can be made use of for the advantage of the accused even though it cannot be made use of to convict him and punish him for the alleged offence in view of the principle that such a confession made to the Police Officer is not admissible in evidence. 7. On the other hand, the learned Additional Public Prosecutor contends that the evidence of PWs.2, 3 and 4 is very trustworthy bearing some minor discrepancies and their evidence is corroborated by other incriminating circumstances including the medical evidence and absolutely there is no reason to disbelieve them. Further, even though it is deposed by PW.12, mediator, that the accused present in the Court was not the person who was arrested by the police in connection with this case, there is ample evidence, otherwise, to establish the guilt of the accused for the charge under Section 302 I.P.C. According to him, the discrepancy need not be taken into consideration to discredit the evidence relating to the arrest of the Accused and seizure of the property. He further contends that the ocular evidence and medical evidence adduced amply establish that it is not only a case of homicide but it is also a case of causing the murder with an intention to do so which is liable for punishment under Section 302 I.P.C. He asserts that the trial Court on proper appreciation of the evidence on record found the accused guilty of committing the offence and accordingly sentenced him for the offence punishable under Section 302 I.P.C. and absolutely there is no reason to interfere with the findings of the trial Court. 8. In order to dispose of the Appeal, the following points are to be answered : 1) Whether the prosecution placed sufficient evidence to establish the charge under Section 302 I.P.C.? 2) Whether the evidence of PWs. 2 to 4 coupled with other relevant circumstances is acceptable? 3) Whether the trial Court examined the matter properly and arrived at correct conclusions? and 4) Whether the conviction and sentence imposed are tenable or not? 9. The evidence of PW.1, who is the wife of the deceased, is to the effect that on receiving necessary information by PW.2 about the death of his husband i.e. deceased at about 02-30 p.m. she along with her son PW.5 went to the scene of offence and found the dead body of the deceased with injuries on the left side of his neck and later she got drafted report (Ex.P-1) through one Korra Bonjibabu (PW.7) a local teacher and affixed her thumb impression after the contents of it were read over to her by PW.7 and later he presented the report Ex.P-1 to the police. Her evidence is only hearsay. It is the testimony of PW.16 that on 11-04-2007 at about 03-15 p.m. PW.1 came to the police station and presented Ex.P-1, on the basis of which, he registered the case in Crime No.38 of 2007 under Section 302 I.P.C. on the file of Paderu P.S. 10. PW.2 resident of Kotha Paderu village deposed that the deceased was known to him and on Wednesday i.e. on 11-04-2007at about 02-00 p.m. he sat near the pan shop of PW.3 near a culvert and then he found the deceased coming through one road and the accused coming from another road and both of them met together at the junction of the two roads and the deceased after parking his bicycle sat beneath nearby jack tree and further he noticed that the accused questioned the deceased as to who was he, by reason of which, the deceased replied the accused in the same manner, following which, the accused took out a knife from his waist and stabbed on the let side of the neck of the deceased and instantaneously the deceased fell down and then the accused left the place. It is further his testimony that then he went to the house of the deceased and informed PW.1 about the incident. In his cross-examination he also deposed that at the time of incident no outsider was present apart from himself and Duri Raghavulu (PW.3) at the scene of offence. He also deposed that the house of one Pongi Rajamma was situated at a distance of 20 feet away from the shop of PW.3 and the jack tree was at a distance of 10 feet away from the shop of PW.3 and a terraced house of Doggi Manga was at a distance of 60 to 70 feet and pan shop of Challa was at a distance of 20 feet from the shop of PW.3. He also deposed that coolies used to return for lunch in between 01-00 p.m. and 02-00 p.m. passing through the same junction and some persons used to consume toddy near the jack tree but there was no sale of toddy on that day at the said tree. He also deposed that on Tuesdays, Fridays and Sundays only toddy would be sold there. Further, whereas he deposed in his chief-examination that the accused and the deceased came through different roads one by walk and other by bicycle and met at the junction point of both the roads, he deposed in his cross-examination that the deceased came to the pan shop of Raghavulu by bicycle and kept it there and later i.e. after five minutes the accused came there and sat at the jack tree along with him (PW.2) which is somewhat contradictory to what he deposed earlier. He denied that the accused consumed toddy at the shop of Raghavulu on that day. Later, he deposed that the accused was not in drunken state by that time. 11. Duri Raghavulu (PW.3) corroborated the evidence of PW.2 by and large bearing some discrepancies. PW.3 also deposed that at about 02-00 p.m. on 11-04-2007 the deceased came there on bicycle and parked it and then the accused came there and both sat there and then the accused questioned the deceased as to which village the deceased belonged to, for which, the deceased replied that he belonged to Gonduru village and then the accused took out a knife from his waist and stabbed on the left side bottom of the neck of the deceased and then he went out of his shop and found that Vemula Demudu died and then he closed his shop. He also deposed that the accused stabbed the deceased by means of knife like MO.3. His evidence regarding what transpired prior to the incident between the accused and the deceased was not spoken to by PW.2. PW.3 did not speak specifically what is deposed by PW.2 that the deceased and the accused sat near the jack tree. In his cross-examination PW.3 deposed that he knew both the accused and the deceased and there were no disputes between them prior to the incident. Both PWs.2 and 3 denied that they gave false evidence even though no such incident took place. 12. On the other hand, PW.4, who is the wife of PW.3 deposed that on the date of incident, she went to their house and brought meals career to her husband by 02-00 p.m. and then she saw bloodstains in front of their shop and then she washed the blood and her husband told that the accused stabbed the deceased, by reason of which, there was blood. She deposed in her cross-examination that one Durri Rambha used to sell toddy at the jack tree from 09-00 a.m. 05-00 p.m. or till it exhausted and by the time she went to her shop on that day Durri Rambha was selling jeelugu toddy. 13. It is pertinent to note here that PW.2 in his cross-examination deposed that the deceased and the accused sat at the tree, whereas it is not specifically stated by PW.3 as to where exactly they sat and PW.3 did not specifically state what is deposed by PW.2 that the deceased and the accused sat at the jack tree. Further, as per the rough sketch (Ex.P-10), of the scene of offence, the jack tree was abutting the road at some distance and not in front of the shop of PWs.3 and 4 and in between the scene of offence and the shop of PWs.3 and 4 existed a road, whereas no distance between the two points is noted which rules out what is deposed by PW.3 that he found the blood in front of their shop. 14. Further, with regards to the scene of offence, PW.17, Inspector of Police, Paderu and Investigation Officer in this case, deposed that he conducted observation panchanama there and got drafted Ex.P-10 sketch of the scene of offence and seized blood stained earth and controlled earth marked as MOs.4 and 5 and got it photographed through one G. Balayya in respect of which Exs.P-11 to P-16, photos with negatives were marked, in the presence of PW.12, a mediator, who also deposed accordingly. 15. In fact, the learned defence counsel vehemently argued that the discrepancies pointed out above with regards to what transpired before the alleged incident and also with regards to the scene of offence are fatal. The veracity of the prosecution version mainly rests upon the evidence of PWs. 2 and 3, who were examined as direct witnesses to the prosecution. It is nobody’s case that PWs. 2 and 3 got any enmity against the accused and it is also not in dispute that PW.3 got shop near the scene of offence. There is also no basis to say that PW.3 got any close friendship or relationship with the deceased. Therefore, it is to be held that they got no need to speak falsehood against the accused. Further, in any case, the incident took place within a close range from the jack tree and also from the shop of PW.3. The discrepancies pointed out in the evidence of PWs. 3 and 4 are only minor and natural in nature to take them seriously. In fact, such discrepancies do occur because of lapse of time even in the evidence of truthful witnesses, which clearly demonstrates that their evidence is natural and credible and not dramatic which is unnatural. 16. With regards to the non-examination of any other witnesses it is clearly spoken to by PW.2 that no other person or persons witnessed the incident. Significantly, it is according to PW.4 that the incident took place when she went home to bring lunch for her husband, thereby she got no opportunity to witness the incidents. The evidence of PW.2 that usually others passes through the road, particularly, when the toddy shop existing there was opened, by itself does not meant that others would have witnessed the incident. The evidence of PW.5 son of the deceased, PWs.7 to 9 and 11 employees of PMRC, ITDA Department, Paderu, where the deceased used to work as Attender deposed to the effect that subsequently they came to know about the incident which is only hearsay. Further, even though according to PW.4, one Durri Ramba was selling toddy nearby, there is no definite basis to say that she was present and witnessed the incident. Even supposing that she was a material witness to be examined non examination of her is not fatal when there is independent, cogent, credible and trustworthy evidence of PWs. 2 and 3 to establish the charge, what is required is quality of evidence. 17. PW.14, Medical Officer, deposed that on the requisition of the Inspector of Police, Paderu P.S. on 12-04-2007 he conducted post- mortem examination over the dead body of the deceased from 10-00 a.m. on the same day and found lacerated wound on the left side of the neck 4 cm x 2 cm x 4 cm x 1 cm above the medial end of the left clavicle which was red in colour and dark coloured blood was oozing from the wound side and the wound was ante mortem in nature and on the examination the left jugular vein was found to be severed. He further deposed that he opened the neck and found that the internal jugular vein of the deceased was found to be cut which was sufficient to cause the death of the deceased and further he opined that the wound would have been caused by a sharp edged weapon and the cause of death was due to secondary to massive loss of blood from the wound side. Further, he issued Ex.P-8 post-mortem report. He also testified that the injury was caused by means of a knife like MO.3. The medical evidence of PW.14 clearly corroborates the ocular evidence with regards to the injury caused to the deceased person. 18. Further, PW.17-Investigation Officer, deposed that he conducted inquest over the dead body of the deceased and examined PWs.1, 3 and 5 and recorded their statements in the presence of PW.12 and another and then Ex.P-6 Inquest report was prepared, PW.12 deposed accordingly. As per Ex.P-6, the deceased died because of the injuries received by him. It also agrees with the evidence of PWs. 2 and 3. 19. With regards to the arrest of the accused and seizure of the weapon, it is deposed to by PW.12, mediator, that on 13-04-2007 at Metta Bungalow, the police arrested the accused in the presence of himself and another after ascertaining his identity and he took out a knife from his waist and showed it to the police. He further deposed in his cross-examination that the person so arrested was not in the Court hall (by the time he deposed). He also identified MO.3 as the same knife. Further, he deposed that accordingly he scribed the report marked as Ex.P-7 along with others. The Investigation Officer/PW.17 also deposed accordingly but asserting that the accused was the person arrested then. 20. Even though PW.12 deposed at first that then the accused was arrested when it was also elicited from him later that the person arrested there was not the person present in the Court, it gives suspicion about the arrest of the accused and seizure of the property. On the other hand, it is something unnatural that even after 4 days of the incident the accused was in the possession of the knife, as the natural conduct of every such individual under similar circumstances would be to throw away such weapon immediately after such incident and avoid the exposure of his liability in the crime. Therefore, it is not accepted or proved that the accused was arrested in such a manner and from him the weapon was seized. However, when PW.3 one of the direct witnesses identified the weapon as MO.1 which can be accepted it must be that it was seized by the police in a different way. However, this lacunae is not important if there are good circumstances otherwise to establish the charge. 21. There is absolutely no reason to discredit the evidence of PWs. 2 and 3 corroborated by other circumstances with regards to the incident in question and accordingly it is accepted. Therefore, the incident is established. But as contended by the learned defence counsel, it is something unnatural that unless some unpleasantness circumstances took place between them the accused would not have resorted to the act of stabbing the deceased by means of the knife. In fact, as per the confessional panchanama of the accused, which can be taken for the benefit of the accused prior to the stabbing of the deceased some altercation took place in between them but it alone is not sufficient to hold that the deceased provocated the accused to commit the offence. In this context, the complicity of the accused is to be determined on the basis of his conduct then in causing the murder of the deceased. 22. He had no prior enmity with the deceased, which rules out that he had prior intention to kill the deceased. So, he would have resorted to stabbing the deceased following some altercation between them and having been provocated by it definitely. Further, he gave one blow and without seeing as to whether it was sufficient to cause the death of the deceased he left the place which makes it very clear that he got no real intention to cause the death of the deceased. However it depicts his highhanded attitude then. Further, the fact that he stabbed on the vital part of the deceased amply establishes that he did so having knowledge that it was sufficient to cause his death without the presence of any intention to do so which clearly attracts the 2nd limb of Section 304 I.P.C. which reads : “Punishment for culpable homicide not amounting to murder: - Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or causing such bodily injury as is likely to cause death. or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 23. In a decision of this Court in Kota Peda