Vadla Subbarayudu vs State Of A.P.,
2021 Latest Caselaw 3465 AP

                THE HON'BLE SRI JUSTICE JOYMALYA BAGCHI
                                  AND
            THE HON'BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI


                         Criminal Appeal No.58 of 2016
                         [Taken up through video conferencing]



JUDGMENT: (Per Hon'ble Sri Justice Joymalya Bagchi)



       The appeal is directed against the judgment dated 18.12.2015 passed by

the Principal Sessions Judge, Kadapa, in Sessions Case No.305 of 2014

convicting the appellant for commission of offences punishable under Sections

302 and 397 of IPC and sentencing him to suffer imprisonment for life and to

pay a fine of Rs.500/- for the offence punishable under Section 302 of IPC, in

default to suffer Simple Imprisonment for a period of one year. The appellant

was also sentenced to undergo imprisonment for a period of seven years for the

offence punishable under Section 397 of IPC. Both the sentences were directed

to run concurrently.


2.     The prosecution case, as alleged against the appellant, is to the effect

that on 24.06.2014 at 12.25 PM, the appellant along with another entered the

shop-cum-house of the deceased, Kaluva Lakshmi Devi, and tried to snatch the

Talibottu sarudu (Mangalsutra) from her neck. In the course of the incident,

the appellant stabbed the victim resulting in her death.           Thereafter,

miscreants fled away from the spot with the gold ornament.              PW1 -

K.Venkataramana, son of the deceased along with PW3 - G.Venkatesu saw the

incident and raised hue and cry.           On hearing the hue and cry, PW4 -

M.Subbaiah, PW5 - G.Sivaramaiah and PW6 - Shaik Althaf came to the spot and

chased the miscreants, who fled away. PW1 and PW3 shifted the victim to

Government Hospital for treatment where she was declared dead.          PW2 -

Kaluva China Subba Rao, father of PW1, joined them at the hospital. A written

complaint/Ex.P1 was lodged by PW1, resulting in registration of Crime No.104
                                       2


of 2014 under Sections 397 and 302 IPC. Police held inquest/Ex.P2 over the

body of the deceased in the presence of PWs 1, 3 and PW7/VRO, who was the

Mediator.   In the course of investigation, PW10 apprehended the appellant on

02.07.2014

in the presence of PW7/VRO and LW19-N.Veerabhadra Achari at

Ranibavi bus-stop on Badvel-Mydukur Road. The appellant admitted his guilt

and on interrogation, he brought out two pieces of the Talibottu sarudu

(Mangalsutra) from his right side pocket. The same was seized in the presence

of mediator. On showing of the appellant, a blood stained shirt/MO3 as well as

crime weapon, Pidi Baku/MO2, were also seized. On the requisition of the

Investigating Officer/PW10, Test Identification Parade was held on 19.07.2014

in the presence of PW9/Junior Civil Judge, Sidhout at Central Prison, Kadapa

where PWs 1, 3 to 6 identified the appellant. Charge sheet was filed and case

was committed to the Court of Session and the learned Principal Sessions

Judge, Kadapa, has taken the case on file for trial and disposal. Charges were

framed under Sections 302 and 397 IPC. Appellant pleaded not guilty and

claimed to be tried.

3. In the course of trial, prosecution examined 10 witnesses and exhibited

number of documents. Defence of the appellant is one of innocence and false

implication.

4. In conclusion of trial, the learned Sessions Judge convicted and

sentenced the appellant as stated hereinabove.

5. Mr. C.Sharan Reddy, learned counsel appearing for the appellant, argues

that the very genesis of the case is based on shaky foundation. While PW1 and

other witnesses claim that the deceased has been assaulted by an unknown

person, name of the appellant transpired in the Inquest Report/Ex.P2 which

was contemporaneously recorded on the same day. It is further submitted that

the names of other eyewitnesses did not transpire in the FIR. The appellant

had been shown to the witnesses prior to the Test Identification Parade and the

identifying features of the appellant have not been mentioned by PW1 in the

First Information Report. The appellant had cat like eyes and no precaution on

such score was taken in the course of the Test Identification Parade. He

further argued that identification of the gold Talibottu saradu (Mangalsutra)

before PW7 is not reliable and that there is difference between the description

of the article stolen in the FIR and the recovered article/MO1, i.e., two pieces

of Bangaru Talibottu sarudu (Mangalsutra). It is also submitted that PW8 - Post

Mortem Examination Doctor deposed that the weapon of offence/MO2 was

spindle shaped weapon and no injury is noted in the PME report corresponding

to the crime weapon. He also submits that no blood stains were recovered

from the spot. He further submits that the Investigating Officer/PW10 failed to

produce the photographs of the scene of crime during trial.

6. On the other hand, learned Public Prosecutor argues that the evidence

of the eyewitnesses PWs 1, 3 to 6 is consistent to one another. PWs 1 and 3

witnessed the incident of assault while PWs 4, 5 and 6 saw the appellant and

co-accused running away from the spot. With regard to disclosure of name of

the appellant in the Inquest Report, it is stated that the appellant had come to

meet PW2 at his shop immediately prior to the incident and the latter had told

him to go to the house. Out of suspicion, his name was recorded in the Inquest

Report/Ex.P2. It is further argued the plea that the appellant had been shown

to the witnesses one month prior to the Test Identification Parade is patently

absurd as the appellant was arrested on 02.07.2014 barely 17 days prior to the

Test Identification Parade. The medical evidence/PW8 substantially

corroborates the ocular evidence of the eyewitnesses. The recovery of the

stolen article as well as blood stained wearing apparel and weapon of offence

had been proved beyond doubt.

7. From the evidence on record, we note that the prosecution case

essentially rests on the eyewitness version of PWs 1, 3 to 6. PW1 is the son of

the deceased and an eyewitness. He deposed that on 24.06.2014, he and his

mother were in the shop situated at their house. At 12.25 PM, he had gone to

a neighbouring shop for collecting money. One Venkatesu - PW3 came to the

shop and asked for electrical materials. Both of them proceeded to their

residence-cum-electrical shop. When they reached the shop, they heard cries

of his mother from the kitchen. They rushed to the spot and found two persons

with knife threatening his mother and were pulling the Talibottu Sarudu

(Mangalsutra) from her neck. The appellant stabbed his mother with a knife

while pulling Talibottu sarudu (Mangalsutra) with his left hand. The said

Talibottu sarudu (Mangalsutra) broke into two pieces. The miscreants collected

the two pieces and ran away from the spot. They raised hue and cry.

Neighbours, namely PWs 4, 5 and 6, gathered and unsuccessfully chased the

assailants. He identified the appellant in Court as one who stabbed his mother

and pulled the Talibottu sarudu (Mangalsutra). He further deposed that he had

shifted his mother to the Government Hospital. His father rushed to the

hospital. He went to the police station and submitted complaint/Ex.P1 at

2 PM. He proved the complaint/Ex.P1. He was present during inquest. He

identified the appellant in the course of Test Identification Parade. He also

identified the Talibottu sarudu (Mangalsutra) (MO1) recovered from the

appellant in the presence of VRO/PW7 (Mediator). In cross examination, he

stated that he did not mention the descriptive particulars of the culprits in the

FIR. The evidence of PW1 is substantially corroborated by PW3, who deposed

that he had come to the shop of PW1 to purchase electrical goods. He deposed

that he accompanied PW1 to his house and saw the incident. They chased the

miscreants. Thereafter, the victim was shifted to hospital for treatment. In

addition thereto, PW4, a local kirana shop owner, PW5, an Ice-cream parlour

owner and PW6, a Dance Master who were neighbours of PW1 have deposed

that on hearing hue and cry, they came to the spot and saw the appellant and

another person running away with knife. All the witnesses identified the

appellant in the course of Test Identification Parade as well as in Court.

8. Mr. Sharan Reddy sought to challenge the evidence of the aforesaid

eyewitnesses on the ground that the appellant was known to PW1 who failed to

disclose his identity in the FIR. In support of his contention, he relies on the

evidence of PW2, father of PW1 and husband of the deceased, who states that

the appellant used to visit their house for supplying vegetables. On the date of

the incident, at 10 am, the appellant had come to his shop situated near Rice

Mill carrying vegetables in a plastic cover. He had told the appellant to hand

over the vegetables in his house as he had some work in the shop. Relying on

such evidence, it is argued that the appellant was known to PW1. Mr. Reddy

seeks to fortify such argument by referring to the fact that the name of the

appellant had transpired in the Inquest Report/Ex.P2 which was recorded by

Investigating Officer (PW10) on the self same day.

9. We have given anxious consideration to such submission. No doubt, PW2

deposed that the appellant used to come to his house carrying vegetables and

on the day of the incident he had met him at his shop at Sidhout road near Rice

Mill. However, nothing has transpired from the evidence on record to establish

that PW1 knew the identity and name of the appellant from before. PW1

rushed to the police station alone and being unaware of the identity and name

of the miscreants lodged FIR against unknown accused persons. However,

when the Inquest Report was drafted, PW2 being present at the spot, it

appears that the name of the appellant had transpired and was recorded by

PW10. This fact was clarified by PW7, who mentioned during inquest they had

disclosed that they had suspicion about a person. That apart, there is nothing

on record that other independent eyewitnesses, namely, PWs 3, 4 to 6, were

aware of the identity of the appellant. All these witnesses have unequivocally

stated the role of the appellant in the incident. PW3, in fact, saw the

appellant attacking the deceased and stealing away Talibottu sarudu

(Mangalsutra) in the course of the incident. PWs 4 to 6 saw the appellant

running away with a knife in hand from the place of incident. These witnesses

identified the appellant in Court during trial as well as in the course of Test

Identification Parade. Thus, the conduct of PW1 in lodging the FIR against

unknown miscreants or recording of the name of the appellant in the inquest

report does not affect the credibility of the prosecution case.

10. It has been strenuously argued that the Test Identification Parade suffers

from incurable infirmities. The appellant was a person with cat like eyes, but

no precaution was taken in that regard in the course of Test Identification

Parade. It is also stated that the appellant was shown to the witnesses in the

police station before the Test Identification Parade. PW9 conducted Test

Identification Parade on 19.07.2014. He deposed that all precautions were

taken in the course of Test Identification Parade and persons with similar

features were made to stand with the suspects at the time of the Test

Identification Parade. All the witnesses have identified the appellant in the

course of such Test Identification Parade. In the light of the aforesaid

evidence, we are convinced that the Test Identification Parade was conducted

after taking due precautions. No objection was raised by the appellant before

PW9 that he had been identified by the eyewitnesses owing to his cat like eyes.

Only plea raised by the appellant was that he was identified in the police

station one month before the Test Identification Parade. Such plea is patently

absurd as he had been arrested on 02.07.2014 barely 17 days before conduct of

the Test Identification Parade. All the witnesses identified the appellant in

Court. It is settled law that the Test Identification Parade is not a substantive

piece of evidence and is used to corroborate the identification of witnesses in

Court.

11. It is argued that PW1 had not disclosed the identifying features of the

appellant in the FIR and the names of other witnesses are also not stated in the

FIR. It is settled law that the First Information Report need not be an

encyclopaedia of facts. PW1 had seen his mother being brutally assaulted to

death and had rushed to the police station from hospital to lodge FIR. In such a

state of mind, it is absurd to expect that all minute details with regard to the

features of the accused or the presence of the witnesses would be noted in the

said document. The evidence on record shows that PWs 1, 3 to 6 had chased

the appellant and his companion down the street. The incident occurred in

broad-day light during afternoon. Therefore, we are convinced that the

eyewitnesses had ample opportunity to see the appellant who had committed

the crime.

12. In the light of the aforesaid facts, we are convinced that the appellant

was duly identified in Court as well as in the course of Test Identification

Parade by the eyewitnesses, namely, PWs 1, 3 to 6 herein. Their evidence

remained unshaken in the cross-examination. Thus, on the evidence of

eyewitnesses, it is unequivocally established that on the fateful day, the

appellant had gone to the residence of the deceased along with another and

had assaulted her with a knife resulting in her death. They had also stolen

Talibottu sarudu (Mangalsutra) from her neck.

13. The evidence of PW8, Post Mortem doctor, also supports the ocular

version of the eyewitnesses. PW8 deposed that on examination, she found the

following injuries:

"A lacerated wound is present 104 cms from left heel. 12 cms above the umbilicus on midclavicular line. 6 cm below the left ribcage with 6 x 3 cm size with linear abrasion over 6 cm x ¼ cm vertically present above and left to the wound. Fat is present at the base of wound, oval shaped wound with sharp edges. On exploration of wound skin thickness - 3 ½ cms, peritoneal fat extruded out through the wound, muscle thickness ½ cms, obliquely over with 6 cm x 3 cm size. On opening of scalp, skull bones

intact, on opening of skull membranes present. Brain is pale. On opening of neck, Hyoid, thyroid normal, Chest: Ribcage normal, Lungs pale on cut section, Heard pale and on cut section all chambers empty.

On opening of abdomen: pooling of blood of about 2 - 3 ltrs present. Liver

- pale on cut section, stomach - Empty, Intestines - 1 ½ cm lacerated wound present in middle of first 1/3rd of small intestine 10 cm above and below the wound hyperaemia present.

Spleen - 1 x 1 cm laceration over medial side 2 cm lateral to helium Kidneys - Both kidneys pale on cut section, External genitalia - Normal Bladder - Empty, Spine Normal."

PW8 deposed that the cause of death of the deceased was due to haemorrhage

and shock. PW8 noted the fatal injury in the abdomen below the left ribcage.

She also opined that the crime weapon/MO2 was sufficient in ordinary course

to cause injury noted by her. Thus, the medical version substantially

corroborates the narration of the eyewitnesses with regard to the genesis of

the assault on the victim. However, referring to cross-examination, it is argued

that the crime weapon is a spindle shaped weapon and no corresponding injury

was found in the PM report/Ex.P6.

14. The evidence of a witness has to be read as a whole. One line cannot be

extracted in isolation from the entire evidence. The evidence of PW8 shows

an injury in the abdomen corroborating the version of the eyewitnesses. The

opinion of the doctor in the present case does not rule out the ocular version.

15. It is settled law when there is credible ocular version supporting the

prosecution case, hypothetical opinion of the doctor is not sufficient to

discredit the testimony of the eyewitnesses. On the contrary, in the present

case, it substantially corroborates the evidence of the eyewitnesses that the

victim was assaulted in the abdomen resulting in her death and does not

discredit their version completely. Recovery of the stolen article, i.e.,

Talibottu sarudu (Mangalsutra) has been proved by the evidence of the

Investigating Officer, PW10, and the Mediator PW7. Both of them deposed

upon arrest, the appellant brought out the Talibottu sarudu (Mangalsutra) from

out of his pocket. The stolen article was identified by PW1 in Court as well as

in presence of PW7/VRO-Mediator.

16. It has been argued that there is discrepancy in the description between

the recovered article/MO1 and stolen article in the FIR. We note in the FIR,

the stolen article was described as 'Bangaru golusu' (gold chain), but the

recovered article/MO1 is Talibottu sarudu (Two Pieces). The difference in the

description of the stolen article vis-à-vis the recovered one is minor. Talibottu

sarudu (Mangalsutra) is in the form of a chain. Therefore, variation in

description of the stolen article is not a substantial one so as to discredit

recovery. It must be borne in mind that FIR was lodged by PW1 after the

ghastly incident of murder of his own mother. Thus, describing the

mangalasutra as a gold chain, in our considered opinion, does not render the

prosecution case vulnerable. In addition thereto, the evidence of Investigating

Officer/PW10 and the Mediator/PW7 has established the recovery of blood

stained wearing apparel/MO3 as well as Pidi Baku/MO2 on the showing of the

appellant. The wearing apparel so recovered, on forensic evidence, showed

the presence of human blood. The aforesaid evidence substantially

corroborates the eyewitness version implicating the appellant as the person,

who assaulted the victim resulting in her death and stole away the Talibottu

sarudu (Mangalsutra) from her neck.

17. It is not the case of the defence that the deceased had not been

assaulted at her residence. Place of occurrence is not seriously disputed.

Hence, the failure of the Investigating Officer to produce photographs or

recovering blood stains from the place of occurrence does not affect the

credibility of the prosecution case.

18. Finally, in the alternative, it is argued that the conviction may be

altered from one of murder to culpable homicide not amounting to murder.

We are unable to accede to such a plea on the ground that the appellant had

come to the spot armed with knife and stuck blow on a vital part of the body.

The blow was so severe that it damaged internal organs including spleen and

liver. The aforesaid circumstances clearly establish the intention of the

appellant was to murder the deceased.

19. For the aforesaid reasons, the conviction and sentence of the appellant

is upheld.

20. Accordingly, the Criminal Appeal is dismissed.

__________________ JOYMALYA BAGCHI, J

________________________ KONGARA VIJAYA LAKSHMI, J

13-09-2021 RAR