Andhra Pradesh High Court - Amravati

Dadisetti Rambabu Ramu vs The State Of A.P., on 12 August, 2021

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      THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
                                  AND
      THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN

                Criminal Appeal No. 1163 of 2014

JUDGMENT:    (Per Hon'ble Sri Justice C.Praveen Kumar)



      Heard Sri. Challa Dhanamjaya, learned Counsel appearing

for the Appellant and Sri. S. Dushyanth Reddy, Additional

Public Prosecutor for the State, through Blue Jeans video

conferencing APP and with their consent, the appeal is disposed

of.


1)    The sole accused in Sessions Case No. 317 of 2013 on the

file of the Additional District and Sessions Judge, West

Godavari, Kovvur, is the appellant herein. He was tried for the

offence punishable under Sections 302 of Indian Penal Code,

1860 ['I.P.C.'], for causing the death of one Kakarla Subba Rao

['Deceased'] on 06.05.2009. By its Judgment, dated 01.10.2014,

the learned Sessions Judge, convicted the appellant and

sentenced him to suffer imprisonment for life and to pay fine of

Rs.1,000/- for the offence punishable under Section 302 I.P.C.,

in default to suffer rigorous imprisonment for two months.


2)    The case of the prosecution is as under:


i)    PW1 is the brother of the deceased, while PW2, who is a

resident of Kovvur, ekes out his livelihood by doing Carpentery

work at Kovvur. PW3 is the brother-in-law of PW1. It is said that

accused   and    deceased      had       some   disputes   over   money
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transactions. The accused is said to have lodged a case against

the deceased and PW1, which was taken on file as C.C. No. 503

of 2008 and both of them were convicted for the offence

punishable under Section 324 I.P.C.


ii)   While things stood thus, on 06.05.2009 at about 11.00

A.M., PW1, PW2 and deceased went to the field of PW6 to take

measurements     of   cut    palmyrah     trees.   After   taking

measurements, they were returning from the said place and

when they reached the land of PW5, the accused came in

opposite direction on a bicycle. At that time, the deceased was

walking ahead of PW1 and PW2. The accused saying "yera

subbiga, entira vaaguthunnav, ninu champesthanu", got down

from the bicycle and hacked the deceased with a sickle on the

left side of the neck. When the deceased raised his hand, the

accused hacked on the hand resulting in a cut to his fingers.

Thereafter, the accused hacked him with a sickle on the

stomach, as a result of which the intestine of the deceased came

out. When PW1 and PW2 intervened, the accused threatened

them by brandishing the sickle. After the deceased fell down, the

accused kicked him with his leg and left the place on his bicycle

threatening PW1 and PW2 with his sickle. PW1 and PW2 tied a

towel around the stomach of the deceased preventing the

intestines from coming out and, thereafter, PW2 went to the

village for an auto. It is said that, PW2 and PW3 came to the

scene with a auto and took the deceased to the Government
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Hospital, Kovvur. As the condition of the deceased was serious,

the doctor advised them to take the injured to Government

Hospital, Rajahmundry. The deceased was shifted in 108

ambulance and was admitted in Apex Hospital. At 2.15 P.M., the

doctor declared him dead. PW1 got Ex.P1 report prepared with

the help of PW2 and PW4.


iii)   On 06.05.2009, while PW12 Sub-Inspector of Police was

present in the police station, he received hospital intimation

from Apex Hospital, Rajahmundry, about the death of the

deceased. Immediately, he proceeded to the hospital where PW1

presented a written report. Basing on the said report, PW12

registered a case in Crime No.80 of 2009 for the offence

punishable under Section 302 I.P.C. Ex.P9 is the hospital

intimation and Ex.P11 is the printed First Information Report.


iv)    PW13 the Inspector of Police, took up further investigation.

After receiving a copy of Ex.P11 [F.I.R.], he visited Apex Hospital,

Rajahmundry,      and    thereafter   to   Government     Hospital,

Rajahmundry. In the presence of panchayatdars, he conducted

inquest over the dead body of the deceased at 5.30 P.M. During

the course of inquest, he examined PW1 to PW4 and others.

After completing the inquest, he gave a requisition to the

Superintendent of Government Hospital, Rajahmundry, for

holding autopsy over the dead body of the deceased.
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v)     PW10 - the Civil Assistant Surgeon, District Hospital,

Rajahmundry, conducted autopsy on the dead body of the

deceased on 07.05.2009 at 10.00 A.M. Ex.P8 is the post-mortem

report.


vi)    It is also to be noted here that on 07.05.2009, PW13

visited the scene of offence situated near Dandagandirevu i.e.,

near the agricultural fields of PW5 and in the presence of

mediators, observed the scene of offence and got prepared a

mediators report by incorporating all the details. At the scene of

offence, he found a spectacle, pen and one chappal. He seized

the said objects and also collected the blood stained mud and

controlled earth at the scene. He also got photographed the

scene of offence through PW7, apart from preparing a rough

sketch at the scene, which is marked as Ex.P13.


vii)   On 11.05.2009, he received reliable information about the

movements of the accused, took PW9 and others and rushed to

the house of Sadhanala Nageswara Rao, who is the brother-in-

law of the accused. He apprehended the accused at about 4.00

P.M. When questioned, the accused is said to have confessed

about the commission of the offence. He also confessed about

concealing the blood stained shirt and sickle used in the

commission of offence near SPIC factory. Pursuant to the

confession, the accused took them to SPIC factory and picked up

a sickle and shirt from the bushes. The same were seized under

Ex.P7. After collecting all the necessary documents including
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R.F.S.L., report, a charge-sheet came to be filed, which was

taken on file as P.R.C. No. 24 of 2009 on the file of II Additional

Judicial First Class Magistrate, Kovvur.


3)   On appearance, copies of documents as required under

Section 207 Cr.P.C., came to be furnished. Since the case is

triable by Court of Sessions, the matter was committed to the

Sessions Court under Section 209 Cr.P.C. Basing on the

material available on record, charge as referred to above came to

be framed, read over and explained to the accused, to which, he

pleaded not guilty and claimed to be tried.


4)   In support of its case, the prosecution examined PW1 to

PW13 and got marked Ex.P1 to Ex.P13, beside marking M.O.1 to

M.O.5. After completion of prosecution evidence, the accused

was examined under Section 313 Cr.P.C. with reference to the

incriminating circumstances appearing against him in the

evidence of prosecution witnesses, to which he denied but

however no oral or documentary evidence was adduced.


5)   Relying upon the evidence of PW1 and PW2, who were

examined as eye witnesses to the incident, the learned Sessions

Judge convicted the accused for the offence punishable under

Section 302 I.P.C. Challenging the same, the present appeal

came to be filed.
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6)   Sri. Challa Dhanamjaya, learned counsel appearing for the

appellant submits that a false case has been foisted against the

accused because of earlier disputes between the accused and

deceased. He submits that PW1 and PW2 are planted witnesses

and their presence at the scene is doubtful. He took us through

the evidence of PW1 and PW2 in support of the same. He further

submits that there was no occasion for PW1 and PW2 to be

present along with the deceased. Referring to the contents of the

F.I.R., he would contend that there is absolutely no motive for

the accused to attack the deceased and on the other hand, the

deceased and PW1 had a grudge against the accused.


7)   He further submits that the prosecution has shifted the

scene of offence. According to him, the evidence of PW1 and PW2

show that the incident took place on a canal bund, whereas, the

scene of offence panchanama shows as if the incident took place

in the land of PW5. In other words, he would submit that the

finding given by the trial court with regard to the place of offence

is incorrect and contrary to the record.


8)   Sri. Challa Dhanamjaya, learned counsel for the appellant

further submits that the evidence of PW1 would show that he

was examined on the next day morning and, thereafter, he was

never examined at all. That being so, the evidence of the

investigation officer that PW1 was examined at the time of

inquest and also during the course of investigation would be

totally incorrect and the statement recorded is a fabricated one.
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In view of the above, the learned counsel mainly submits that

the prosecution has suppressed the statements of the witnesses

recorded at the earliest point of time, which lead to doubt the

prosecution case.


9)    One another argument advanced by the learned counsel

for the appellant is that when none of the prosecution witnesses

have shown the scene of offence, it is strange as to how the

police reached the scene of offence, prepared a panchanama of

the scene and a rough sketch of the scene of offence. If really

PW1 and PW2 have witnessed the occurrence, the guards could

not have taken the two witnesses along with them to identify the

scene. Hence, he submits that the entire case of the prosecution

has been built up in the police station. To substantiate the

same, he further submits that M.O.2 to M.O.4 which are alleged

to have been seized from the scene were never shown to PW1

and no identification of the same was conducted. According to

him, the reports of the forensic science lab are not placed on

record and, as such, an adverse inference has to be drawn with

regard to seizure of weapon used in the commission of offence

and the blood stained shirt of the deceased.


10)   On the other hand, Sri. S. Dushyanth Reddy, learned

Additional Public Prosecutor, opposed the same contending that

there are no reasons to disbelieve the evidence of PW1 and PW2.

According to him, they are natural witnesses and their presence

cannot be doubted. He further submits that PW2 is an
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independent witness whose evidence can be relied upon in the

absence of any motive to speak falsehood.


11)   Coming to the manner in which the scene of offence was

identified, the learned Additional Public Prosecutor would

contend that PW13 in his evidence categorically deposed that on

07.05.2009

he in the presence of PW9 and PW1 visited the scene

of offence, which is situated at Dandagandirevu near the

agricultural field of PW5. Apart from that, in the cross-

examination of PW13, it has been elicited that, before leaving to

the Apex Hospital, he directed Sub-Inspector of Police to place a

guard at the nearby scene of offence as the exact scene of

offence was not known by then. Referring to the cross-

examination of PW13, the learned Additional Public Prosecutor

submits that all of them went to the scene of offence for the first

time only on 07.05.2009. Therefore, identification of scene of

offence is not in dispute and the exact location of the scene

came to be identified on the next day.

12) Insofar as the examination of PW1 and PW2 at the time of

inquest, the police got information from Apex Hospital and

accordingly PW12 went to the hospital and received Ex.P1

written report from PW1. Thereafter, the investigation officer -

PW13 examined PW1 to PW4 during the course of inquest and

recorded their statements. The evidence of the investigation

officer does not anywhere indicate recording of the statements of

witnesses twice. Therefore, the learned Additional Public

Prosecutor would contend that the version of PW1 that he was

examined on the next day and, thereafter, the police did not

come to him, is correct, does not indicate any suppression of

statement.

13) In reply, Sri. Challa Dhanamjaya, learned Counsel tried to

contend that the evidence of PW1 is silent as to he taking the

police to the scene of offence. Therefore, the version of

investigation officer that, he along with PW1 went to the scene of

offence has to be viewed with suspicion. In other words, the

entire gamut of argument appears to be that neither PW1 nor

PW2 have witnessed the incident and the scene of offence, rough

sketch, inquest etc., are all created to suit the prosecution case.

14) The point that arises for consideration is, whether the

prosecution was able to bring home the guilt of the accused

beyond reasonable doubt?

15) As stated earlier, the prosecution is mainly relying upon

the evidence of PW1 and PW2, who were examined as eye

witnesses to the incident. The counsel for the appellant took us

through the evidence of these two witnesses and the evidence of

the investigating officer to show that these two witnesses are

planted witnesses and everything has been created in the police

station.

16) In order to appreciate the rival contentions advanced, it

would be necessary to refer to the evidence of some of the

witnesses.

17) The fact that there were some disputes between the

accused and the deceased is not in dispute. In the year 2008

itself, on a report given by the accused, PW1 and his brother

[deceased] were arrested. Police after investigation filed a charge-

sheet, which was taken on record as C.C. No. 503 of 2008 for

the offence punishable under Section 324 I.P.C. In the said case,

PW1 and his brother were convicted. Apart from that, the

evidence on record shows that there were some disputes over

monetary transactions between the accused and the deceased.

In-fact, in the First Information Report itself, it has been stated

that because of earlier disputes the incident in question took

place.

18) The counsel for the appellant submits that the grouse, if

any, should be to the accused to foist a false case but not to

PW1 and PW2. We are not in agreement with the said view. It

may be true that the accused gave a report against PW1 and

PW2, which lead to their arrest and conviction. But, at the same

time, the records shows existence of monetary disputes between

both the groups, which is evident not only from the evidence of

PW1 but also from the evidence of PW3, who categorically stated

that there were disputes in connection with monetary

transactions and cases were filed in that connection.

19) Coming to the evidence of PW1 and PW2. PW1 in his

evidence deposed that on 06.05.2009 at about 11.00 A.M.,

himself along with the deceased and PW2 went to the field of

PW6 to take measurements of the palmarah tree lying in his

field. After taking measurements, while they were returning and

when reached the land of PW5, the accused who came in an

opposite direction, got down from the cycle and hacked the

deceased with the sickle on the left side of the neck. When they

intervened, the accused threatened them by brandishing the

sickle. The evidence of PW1 would show that when the deceased

raised his hand to ward off the blow, the accused hacked him on

his hands causing damage to the fingers. Thereafter, the

accused hacked him on the stomach of the deceased, as a result

of which, the intestines came out. When the deceased fell down,

the accused kicked him with legs and while threatening PW1

and PW2 left the place on bicycle. Thereafter, PW1 and PW2 tied

a towel on the stomach of the deceased, to prevent intestine

from coming out. Thereafter, PW2 ran into the village, brought

PW3 and an auto, took the deceased to the Government

Hospital, Kovvur, and from there to Government Hospital,

Rajahmundry, and then to Apex Hospital, Rajahmundry, where

he died at 2.15 P.M. The law was set into motion by lodging a

report with the police. This in substance is the prosecution case.

20) The version of PW1 gets corroboration in all respects from

PW2, who was also examined as eye witness to the incident.

PW1 was cross-examined at length, but nothing useful came to

be elicited to discredit his testimony. The answers elicited only

indicate that PW1, PW2 and his brother were physically strong

when compared to the accused and the omissions in the earlier

statements of PW1 and PW2. It was elicited that PW1 failed to

mention before the police that while himself, PW2 and the

deceased came on to the canal bund upto the land of PW5, the

accused came on a cycle. He failed to mention before the police

as in Ex.D1, that the accused took out the sickle from the cycle.

He further failed to mention before the police that accused got

down from the cycle and with a weapon like sickle assaulted the

deceased. It was further elicited from him that he did not see the

sickle on the cycle of accused when he was coming opposite to

them. The weapon like M.O.1 is readily available in the market.

To a suggestion that the sons of the deceased are involved in two

police cases was denied. The fact that the accused filed a case

against PW1 and PW2 was elicited in the cross-examination. It

was further stated by PW1 that after presenting a report to the

police at Apex Hospital, which was after the death of the

deceased, the dead body was taken to Government Hospital,

Rajahmundry, to which place the police also came. PW1 further

admits in the cross-examination that he was examined by the

police on the next day morning and, thereafter, they did not

come. It was further elicited that the articles seized by police i.e.,

spectacles, pen and chappals, were not shown to PW1.

21) PW2 was also subjected to lengthy cross-examination, but,

however, it was elicited that himself, PW1 and deceased went to

the land of PW6 on a motorcycle and when they stopped the

vehicle on the canal bund, by the side of the land of PW5 and

walked about 10 feet, and when the deceased was walking in-

front of them, the accused came on a cycle and hacked the

deceased. Thereafter, the injured was taken in a auto leaving the

motorcycle at the scene. These answers came to be elicited in

the cross-examination of PW2, which supports the version of

PW1 in all respects.

22) In view of the answers elicited in the cross-examination,

more particularly, the admission that PW1 was examined on the

next day morning and, thereafter, police did not come to him

and as the articles seized at the scene were not subjected to any

identification by PW1; the learned counsel tried to contend that

the earlier statements recorded were suppressed and, as such,

there is any amount of doubt with regard to the presence of PW1

and PW2 at the scene. The learned counsel for the appellant

further contends that the entire case is setup and nobody is

aware as to where the scene of offence is.

23) We are not in agreement with the same. But, one fact

which is to be noted here is, immediately after the incident, the

deceased was taken to Government Hospital at Kovvur and from

there to a private hospital [Apex Hospital]. On receiving

informing from Apex Hospital, Rajahmundry, PW12 - Sub-

Inspector of Police, proceeded to Apex Hospital, where PW1

presented a report. Basing on which, he registered a crime. This

report, which came to be given to PW12 at 2.30 P.M., clearly

discloses the manner in which the incident took place. In-fact, it

can be said that there was no delay at all in giving the report, for

the reason that the incident took place at 11.00 A.M., and

immediately, thereafter, PW2 went to the village, brought an

auto to take the injured to government hospital, Kovvur and,

thereafter to a private hospital at Rajahmundry. Definitely, it

must have taken some time for them to take the deceased to

hospital. At that point of time, neither PW1 nor PW2 would have

thought of giving a report, since saving the deceased would be

upper most in their mind. Only after the death, a report came to

be prepared with the help of PW4 and the said report was signed

by PW1 and PW2.

24) At this stage, as stated earlier, the learned counsel for the

appellant tried to contend that when the statement of PW1 was

recorded only once, the same would falsifies the evidence of

other witnesses, which, according to him, was to the effect that

the statement was recorded even after his statement was

recorded at Apex Hospital i.e., at the time of inquest, which was

conducted at Government Hospital, Rajahmundry.

25) As seen from the record, in the cross-examination of PW1,

it has been elicited that on the next day morning police came to

him and thereafter they did not come to him. It would be

appropriate to extract the same, which is as under:

"After presenting the report to the police at Apex Hospital, after the death the body was taken to Government Hospital, Rajahmundry. To that place also police came. On the next day morning police came to me and thereafter they did not come."

26) A reading of the above would show that after presenting

the report to the police i.e., after the body was taken to

Government Hospital, Rajahmundry, the police again came to

the Government Hospital, Rajahmundry, where inquest was

conducted i.e., on the next day morning and thereafter did not

meet PW1.

27) In order to test as to whether the police have examined

PW1 twice and suppressed the earlier statement, it would be

appropriate to refer to the evidence of PW12 who in his evidence

deposed that he proceeded to Apex Hospital, Rajahmundry, were

PW1 presented a report, which lead to registration of a crime.

The evidence-in-chief of PW12 nowhere states that he recorded

the statement of PW1 or PW2 at the Apex Hospital. In-fact, it

was elicited in the cross-examination that he did not make any

investigation with regard to the contents in the First Information

Report, though, PW1 and others were present at the hospital. It

would be useful to extract the same, which is as under:

"At the Apex Hospital, PW1 was present and though some other persons were there, I do not know their details. I did not make any investigation with regard to the contents in the FIR about the injured being taken in auto to the village and therefrom to the hospital in 108 Ambulance. I collected Ex.P1 from PW1 at Apex hospital."

28) Therefore, PW12 only collected Ex.P1 from PW1 at Apex

Hospital, Rajahmundry, registered the crime; gave intimation to

the Inspector who conducted further investigation.

29) The evidence of PW13 - the investigating officer shows

that, after receiving a copy of the F.I.R., he took up investigation

and proceeded to Government Hospital, Rajahmundry, where he

conducted inquest. During inquest, he examined PW1 to PW4

and others and recorded their statements. It would be

appropriate to extract the same, as under:

"I received the copy of FIR and took up investigation. I left my office and visited Apex Hospital, Rajahmundry, and therefrom to Government Hospital, Rajahmundry. I summoned Jala Ravi Kishore - LW10, PW8 - Kantamani Ramakrishna Rao and LW12 Malli Venkata Srihari Rao to act as panchayatdars for the inquest. Ex.P12 is the served summons to those persons. After securing their presence, along with them and PW1, I visited Mortuary of Government Hospital, Rajahmundry. There, I observed the particulars of the dead body of Kakarla Subbarao. At that time, I found the following injuries over that dead body. One cut injury on the right stomach, one cut injury on the right hand shoulder, two injuries on lip and chin, cut injuries on either hands and fingers and deep three cut injuries on the left side of the neck. I commenced the inquest at 5.30 p.m. During the course of inquest, I examined PW1, PW3 Venkataratnam, LW4 Kakarla

Satyanarayana, PW2 Apparao and PW4 Vemulapalli Srinivasa Rao and recorded their statements."

30) From the evidence of these two investigating officers, it is

very much clear that the statement of PW1 was recorded only

once i.e., at the time of inquest. In-fact, PW13 categorically

indicates that his investigation commenced only on next day and

not on the day of incident. The minor discrepancy, which has

been pointed out in the evidence of PW8 that PW1 was not

examined at the time of inquest and that he was examined in

Apex Hospital only may not be correct, because the inquest

report to which PW8 acted as panch witness, reflect the name of

PW1 as an eye witness to the incident and his statement being

recorded at that time. Therefore, the discrepancy, if any, in our

view, does not go to the root of the matter to say that the

prosecution has built up a case and suppressed the statement of

PW1 recorded at Apex Hospital. In-fact, PW1 does not speak of

recording his statement at the Hospital. It was not even

suggested either to PW1, PW12 or PW13 to that effect.

31) Another aspect on which much stress has been laid by the

learned counsel for the appellant is that, when the investigating

agency is not aware as to where the scene of offence is situated,

it is strange as to how they deputed a constable to guard the

scene. It is to be noted here that PW13 in his cross-examination

admits that before leaving the Apex Hospital, he directed the

Sub-Inspector of Police to place a guard nearby the scene of

offence, as the exact scene of offence was not known by then.

Probably, after receiving the F.I.R., the investigating officer must

have got an indication as to where the incident took place, since

F.I.R. discloses that while they were coming on the canal bund,

near the land of Muramalla Venkateswara Rao, the incident in

question took place. Since a vague idea of the scene of offence

was indicated in the F.I.R., PW13 fairly stated that, as the exact

location of the scene is not known, he directed the Sub-

Inspector of Police to place a guard nearby the scene.

Subsequently, on the next day, he requested PW1 to show the

place and then all of them went there and identified the place

where the incident took place.

32) At this stage, it is very much necessary to extract the

answers elicited in the cross-examination of the Investigating

Officer, which are as under:

"Till 07.05.2009, I did not know the exact spot of the scene of offence, except the area and its location. I went to the scene of offence for the first time on 07.05.2009. I asked PW1 to come to PS and along with PW1 and mediators I went to the scene of offence."

33) From the answers elicited, it is clear that PW13 was aware

about the area and the location of the scene of offence. Hence,

he posted a guard on the previous day in a place nearby the

exact scene and on the next day along with PW1 and PW9

proceeded to the exact scene of offence. There is nothing

unusual in the conduct of PW13 to doubt his testimony. It

would be useful to refer to the evidence of PW9 who was there

along with PW13 and PW1 at the time of conducting scene

observation report.

34) From the answers elicited in the cross-examination of

PW9, it is very clear that it was PW1 who actually showed the

exact location of the scene on the next day and what was made

aware to PW13 on the previous day was the area and the

location, which made him to direct the Sub-Inspector of Police to

post a guard at that place. Therefore, there is no discrepancy at

all either in recording the statement of PW1 which was only once

and that too on the next day and the identification of scene of

offence on the next day with the help of PW1.

35) At this stage, the learned counsel for the appellant took us

through the rough sketch of the scene of offence to show that

the scene of offence is shown as the land of PW5 while the

evidence of PW1 and PW2 is to the effect that the incident took

place on the canal bund. We have perused the rough sketch of

the scene, which is placed on record as Ex.P13, which show that

blood stains were found on the bund and the land of PW5 was

shown as the place of scene of offence. At the most, it could be

an incorrect usage of words by PW1 and PW2 or by court while

recording their evidence. Even otherwise, the fact that there

were blood stains on the canal bund would indicate that an

assault took place there and, thereafter, the deceased must have

fallen on the land of PW5. It is nobody's case that actual assault

took place in the land of PW5. These notings in the rough sketch

were clarified in the cross-examination of PW9, which are as

under:

"The blood stained earth and control earth was collected by the police from the land of Muramalla Venkateswara Rao. The blood stains at gaddimeta [dry gross heap] are also in the field of Muramalla Venkateswara Rao. The words 'gaddimeta prakkana nela' in the scene observation report refer to the blood stains in the land of Muramalla Venkateswara Rao by the side of the said gaddimeta. The police prepared the rough sketch of the scene of offence. I did not compare that rough sketch with the scene observation report scribed by me."

36) It is no doubt true that PW1 and PW2 never stated

anywhere about any assault in the land of PW5 and their

version is that, after coming over to the canal bund, the accused

came on a cycle and assaulted the deceased. It appears that

they travelled only a distance of 10 feet on the bund when the

incident in question took place, which is evident from the

evidence of PW2. Therefore, it cannot be said that there was any

change or shift in the scene of offence or that the incident took

place at some other place and the prosecution to suit their

convenience has fixed the scene, as mentioned in the rough

sketch. Neither it was the case of the accused nor was it

suggested to any of the witnesses about any shift in the scene of

offence. Hence, the argument advanced now that the said

discrepancy, if any, goes to the root of the mater, cannot be

accepted.

37) One another circumstance, which is to be noted and which

finds support from the findings given by the trial court is that

the incident took place all of a sudden and there is very

possibility of deceased moving some distance in order to avoid

the blows and, as such, there is very possibility of blood stains

falling at a distance. Therefore, when no prejudice is shown and

no suggestion is given to that effect and when the evidence of

PW1 and PW2 with regard to genesis of incident is satisfactory

and convincing, this discrepancy, in our view, does not lead to

any doubt in the prosecution case.

38) The learned counsel for the appellant further stated that,

when the deceased, PW1 and PW2 were able bodied persons and

they claim to be much stronger than the accused, there is no

justification for them to keep quiet when the deceased was

giving blows on the deceased or when the accused was leaving

on the cycle. It is to be noted here that the accused came there

armed with a sickle and attacked the deceased, which was a

surprise to PW1 and PW2. It is not the case of the prosecution

that PW1 and PW2 kept quiet. They tried to intervene to save the

deceased, but the accused threatened them with the sickle. Left

with no other option, they moved and, thereafter, the accused

left the scene on his cycle threatening PW1 and PW2 with his

sickle. In-fact, even according to the evidence of PW1 and PW2,

the deceased was moving at a distance ahead of them when the

attack took place. Therefore, the reason given by them in not

apprehending the accused at the scene, cannot be brushed

aside.

39) In Gangadhar Behera and Ors. V. State of Orissa1, the

Hon'ble Supreme Court held as under:

"So far as inaction of PWs 9 and 10 in not coming to rescue of deceased is concerned, it has been noted by the trial Court and the High Court that both of them were unarmed and bare handed and the accused persons were armed with deadly weapons. How a person would react in a situation like this cannot be encompassed by any rigid formula. It would depend on many factors, like in the present case where witnesses are unarmed, but the assailants are armed with deadly weapons. In a given case instinct of self-preservation can be the dominant instinct. That being the position, their inaction in not coming to rescue of the deceased cannot be a ground for discarding their evidence."

40) Factors related to "human behaviour" were considered by

the Hon'ble Apex Court in State of UP v. Devendra Singh2 as

under:--

"Human behaviour varies from person to person. Different people behave and react differently in different situations.

Human behaviour depends upon the facts and circumstances of each given case. How a person would react and behave in a particular situation can never be predicted. Every person who witnesses a serious crime reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and started walling. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the

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victim, even going to the extent of counter attacking the assailants. Some may remain tight lipped overawed either on account of the antecedents of the assailant or threats given by him. Each one reacts in his special way even in similar circumstances, leave alone, the varying nature depending upon variety of circumstances. There is a set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way."

41) Coming to the issue, namely, the failure on the part of the

prosecution in not placing the seized articles, seized at the

scene, before PW1 for identification, we feel that the same may

not be of any relevance, when the evidence of PW1 and PW2 is

believed. Definitely, this circumstance would have assumed

importance if there are no eye witnesses to the incident, which is

not the case on hand.

42) For the aforesaid reasons, we are of the opinion that the

prosecution succeeded in establishing the guilt of the appellant/

accused beyond reasonable doubt and the trial court was right

in convicting the appellant as stated supra.

43) In the result the appeal fails and it is accordingly