THE HONOURABLE Dr. JUSTICE CHILLAKUR SUMALATHA
&
THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
CRIMINAL APPEAL No.820 OF 2013
JUDGMENT:- (Per the Hon'ble Sri Justice A.Santhosh Reddy)
The sole accused in Sessions Case No.159 of 2013, on the
file of the learned II-Additional Sessions Judge, Karimnagar, at
Jagtial, was convicted for the offence punishable under Section
302 IPC and was sentenced to undergo rigorous imprisonment for
life and also to pay a fine of Rs.5,000/-, in default to undergo
simple imprisonment for six months, by judgment dated
20.09.2013. Feeling aggrieved by the same, he has filed the
present criminal appeal.
2. The prosecution case, in brief, is that the appellant
(hereinafter referred to as 'the accused') and the husband of the
de facto complainant viz., Parsa Gangaram (hereinafter referred to
as 'the deceased') belong to Ailapur Village of Korutla Mandal and
their agricultural lands are contiguous to each other. There were
boundary disputes for the last two years and the same was referred
to panchayat wherein it was settled by the elders. However, the
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relationship between them was strained. The deceased used to
abuse the accused in filthy language and used to comment him in
every aspect keeping the boundary dispute in mind. The accused
developed grudge and hatredness towards the deceased. The
deceased also started moving freely with the wife of the accused
and the accused developed a feeling that the accused may develop
illicit intimacy with his wife and decided to eliminate him. On
24.04.2012 at 11:30 a.m., the accused noticed that the deceased
was consuming toddy along with others at the toddy shed situate on
the outskirts of Ailapur. The accused attacked the deceased with
an axe and assaulted him over his head and on right ear from the
rear side. As a result, the deceased died on the spot. The accused
escaped on his bicycle. P.W.1, the wife of the deceased, lodged a
report to police in ExP-1. The Sub-Inspector of Police, Korutla
Police Station, registered a case in Cr.No.111 of 2012 for the
offence under Section 302 IPC at 11:30 a.m., on 24.02.2000 and
submitted the FIRs to all the officers concerned. P.W.23, Inspector
of Police, Korutla Circle, took up investigation.
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3. During the course of investigation, P.W.23 visited the
hospital and secured the presence of P.Ws.1 to 5 and recorded their
statements. He called the photographer P.W.19 to the hospital and
he took the photographs of the dead body under Exs.P-11 to P-13.
Later, he held inquest over the dead body of the deceased in the
presence of P.W.18 and another under Ex.P-6 and in the presence
of mediators, collected the blood stained clothes of the deceased
and also collected M.O.1-axe which was found inserted on the
head of the deceased and seized the same. Subsequently, P.W.22,
the doctor, conducted post-mortem examination on the dead
body of the deceased and issued Ex.P-17-post-mortem report.
The investigating officer also visited the scene of offence and
prepared the scene of offence panchanama under Ex.P-15 and
collected the blood stained earth and also prepared rough sketch.
On the next day, P.W.23 visited Ailapur village and secured the
presence of P.Ws.6 to 19 and recorded their statements.
4. During the course of further investigation, the accused
himself surrendered before P.W.23 in the police station and later he
secured the presence of panch witnesses P.W.21 and another and in
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their presence, recorded the confessional statement of accused.
Thereafter, the accused was remanded to judicial custody.
He forwarded the material objects to the FSL for analysis and after
receipt of the reports and after completing the investigation, filed
charge sheet.
5. The accused appeared before the trial court and pleaded not
guilty to the charge framed under Section 302 IPC and claimed to
be tried. During the course of trial, the prosecution examined
P.Ws.1 to 23, marked Exs.P-1 to P-19 and produced M.Os.1 to 5.
On behalf of defence, no evidence was let in, but Exs.D-1 and D-2
were marked.
6. On appreciation of the oral and documentary evidence,
the trial court convicted and sentenced the accused as noted
hereinabove.
7. We have heard Mr.A.Prabhakar Rao, learned counsel for the
appellant-accused and learned Assistant Public Prosecutor for the
respondent-State.
8. Learned counsel for the appellant-accused submits that P.Ws.3, 14, 15 and 17 turned hostile and that the evidence of other 5 prosecution witnesses i.e., P.Ws.2 and 6 to 11 and 15 to 17, who are alleged direct witnesses, does not inspire confidence, as their evidence is not consistent and improbalises the medical evidence. Further, P.W.22, who is the Medical Officer, who held autopsy over the dead body of the deceased, clearly stated in her opinion Ex.P-17 that the death of the deceased was hypovolemic shock due to head injury and the medical evidence does not support the prosecution case. The learned counsel alternatively submits that the even if the participation of accused in the commission of offence is held proved, there was no intention on the part of the accused to kill the deceased and he may be liable for conviction for the offence punishable under Section 304 Part-I. Learned counsel relied on the decision of the Hon'ble Apex Court in GURDIP SINGH AND ANOTHER v. STATE OF PUNJAB1.
9. Learned Assistant Public Prosecutor opposed the submissions of learned counsel for the appellant-accused and vehemently contended that the prosecution has successfully proved the guilt of the accused with cogent and convincing evidence of 1 AIR 1987 SC 1151 6 eyewitnesses P.Ws.3 and 6 to 11 and P.Ws.15 and 17, who are direct witnesses, and there is consistency in their evidence.
10. We have considered the submissions of learned counsel for the parties with reference to the evidence on record.
11. The motive pleaded by the prosecution for the accused to do away with the deceased was due to land disputes and the wife of the accused was moving freely with the deceased.
12. P.W.1 is the wife of the deceased, who gave Ex.P-1 report within 90 minutes of the occurrence. She deposed that on the day of incident at about 11:30 a.m., P.W.12 informed her about hacking of the deceased to death at the toddy shed (kallu manduva). Immediately, she rushed to the place and found her husband i.e., the deceased who had fallen on the ground and found an axe fixed on the upper portion of right ear. P.W.1 deposed that about two years prior to the incident, disputes arose between the deceased and the accused regarding boundary of their agricultural lands. A panchayat was conducted in the village in that regard wherein the elders, apart from P.Ws.13 and 14 and some others also advised 7 them to live amicably and asked them to fix boundaries of the lands properly. In cross-examination, she further stated that in the panchayat held in connection with re-fixing of boundary stones, the elders imposed a fine of Rs.3,000/- on them. It is quite evident from the testimony of P.W.1 that there were agricultural boundary disputes between the deceased and accused and in that regard, panchayats were also held.
13. One of the panchayat elders P.W.13 in his evidence deposed that the deceased and accused were having boundary disputes and they advised them for measurement of their respective lands and on such measurement, some land was found excess in the land of the deceased; that as per the resolution, the deceased bore the expenses and the elders have fixed the boundaries. After two years, the accused informed the elders that the boundary stones were found missing and again disputes took place between them and the elders once again advised them and re-fixed the boundaries. Subsequently after some days, the deceased got ploughed his land through tractor and the ploughed earth material fell into the land of the accused. Then the accused again complained the same 8 to the elders. In his cross-examination also, P.W.13 stated that the deceased and accused were not in cordial terms in view of the boundary disputes between them.
14. P.W.14 is another elder, who acted as panchayatdar, also deposed about the panchaayts held between the accused and the deceased. Though P.W.14 was treated hostile, he has deposed that he acted as elder in the panchayat held between the deceased and the accused regarding boundary disputes. P.W.14 corroborated the evidence of P.W.13 about the boundary disputes between them and fixing of boundaries.
15. It is evident from the testimony of P.Ws.13 and 14 coupled with the evidence of P.W.1 that the accused and deceased were not in cordial terms and the deceased in spite of advise of the panchayat elders and after fixing of boundaries had ploughed the land with tractor and got removed the boundary stones. These facts would go to show that the accused developed grudge on the attitude of the deceased and determined to eliminate the deceased.
16. On a careful perusal of Ex.P-1 report, we find that P.W.1 also referred to the relevant background as to the relationship 9 between the accused and deceased in view of the boundary disputes between their families. She also referred to the names of P.Ws.13 and 14 and two others who pacified the disputes in the panchayat held and also advised them not to interfere with each other and since the accused and deceased were not in talking terms, in our opinion, these details are sufficient to come to conclusion that the motive part, as alleged by the prosecution, has been established through the cogent evidence of P.W.1, corroborated by the evidence of P.W.13 and partly by P.W.14.
17. As regards the commission of offence by the accused, the prosecution has let in the evidence of eye-witnesses P.Ws.2, 3, 5 to 11 and 15 to 17, out of whom P.Ws.15 and 17 turned hostile and therefore, their evidence may not be relevant.
18. P.W.2 deposed that he knows the deceased and the accused. On the day of incident, the deceased came to his house at about 09:30 a.m., on his two wheeler and both of them proceeded to P.W.2's fields. On the way, P.W.6 met them and all of them reached his fields and near to his fields, they went near toddy shed. Then three of them went and ordered for toddy. P.W.10 served 10 toddy to him and the deceased and P.W.11 served toddy to P.W.6 and by the time they reached there, P.Ws.7 to 9 and one Baddam Sai Redy were already there and all of them were consuming toddy. The accused, who is a toddy tapper by profession, came near to them and kept his toddy instruments and after cleaning his face, came near to them and started supplying toddy which he brought to the persons of Dharmaram village, who were present there. They spent about half an hour consuming toddy and the accused thereafter came from backside and inflicted injury with an axe on the right side of the head of the deceased and due to that injury, the brain matter came out. He again inflicted another injury with an axe on the above right ear portion and as a result, the axe was fixed in that place itself. Later, the accused went away from the place on his bicycle. The deceased died on the spot. In cross- examination, nothing was elicited to discredit his evidence. On the other hand, there is consistency in the evidence of P.W.2 and nothing was elicited worth mentioning to discredit his testimony.
19. P.Ws.6 to 11 & 16, who are the eye-witnesses to the occurrence, deposed on the similar lines as that of P.W.2. It is the 11 evidence of the witnesses, they were all present at the toddy shed and P.Ws.6 to 9 were consuming toddy. P.W.11 also supplied toddy to P.Ws.6 and 9.
20. P.W.10 is a toddy tapper and he supplied toddy to P.Ws.2, 6 to 8 and the deceased at toddy shed. It is the evidence of all these witnesses that the accused attacked the deceased with an axe and inflicted injury on the above portion of right ear and inflicted another blow and the axe was fixed in the head causing instantaneous death of the deceased. The accused went away on his bicycle. In fact, P.W.16 purchased toddy from accused and while consuming toddy, he saw the incident. In cross-examination, all these witnesses denied the suggestion that the accused was not at the place of occurrence and he has not attacked the deceased and they were deposing falsehood and except that, nothing which could discredit the testimony of the witnesses could be elicited from their evidence.
21. If we closely analyze the evidence of eye-witnesses i.e., P.Ws.2, 3, 6 to 11 and 15 to 17, their evidence is consistent and we do not find any material inconsistency in their evidence. In fact, all 12 the said eye-witnesses have narrated the entire incident commencing from the time of serving toddy by the accused to some of the witnesses, attack of the accused with an axe on deceased, causing gruesome murder of the deceased and about their presence at toddy shed at the time of incident.
22. P.W.22, who is the doctor who held autopsy over the dead body of the deceased and issued post-mortem certificate under Ex.P-17, deposed that she found ante mortem injuries on the dead body i.e., stab injury measuring 3 x 3 x 1 over the right ear and fracture of right frontal parietal body of skull. The brain was protruded from the skull. Those ante-mortem injuries were appearing to be caused with a sharp object. The cause of death to the best of my knowledge and belief was on account of 'hypovolemic shock'. Thus, the injuries found on the dead body of the deceased with reference to the medical evidence support the ocular testimony of the eye-witnesses that fatal injuries were caused to deceased with the sharp object like M.O.1. The eye- witnesses account is found credible and trustworthy and also corroborated by the medical evidence about the weapon used in the 13 commission of offence leading to death of the deceased. From the ocular evidence of P.Ws.2, 3, 5 to 11 and 15 to 17, it is clear that the accused armed with an axe M.O.1 inflicted two fatal blows on the right side of the head above the ear causing instantaneous death of the deceased. In our considered opinion, there is nothing to discredit the ocular evidence of the eye-witnesses which remain unimpeachable, as nothing could be elicited from their cross- examination. All the eye-witnesses are wholly independent witnesses, who are not related in any manner to the deceased and we have no reason to discredit the testimony of these eye-witnesses. On a careful perusal of the entire evidence of the prosecution, we have no reason to interfere with the judgment of the trial court.
23. With regard to the submission of learned counsel that the accused did not have intention of killing the deceased, we are unable to find any merit in the submission. The evidence on record clearly shows that the accused attacked the deceased with pre-meditation and the nature of injuries, which were caused by the accused on the vital part, such as head and above the right ear, 14 clearly show that the accused had intention to kill the deceased. Hence, this is not a case where we can convict the accused for the offence punishable under Section 304 Part-I IPC. The trial court, in our opinion, has rightly convicted the accused for the offence punishable under Section 302 IPC and its judgment is not liable for interference.
24. For the aforementioned reasons, the criminal appeal fails and the same is, accordingly, dismissed.
25. Pending miscellaneous petitions, if any, stand closed.
______________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA ______________________________ JUSTICE A.SANTHOSH REDDY 23.09.2022 Lrkm