Patan Babjan Baba, vs The State Of A.P., Rep By Pp.,
2023 Latest Caselaw 2107 AP

     THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRIMINAL APPEAL NO.1836 OF 2009

JUDGMENT:-

This Criminal Appeal is filed by the appellant, who was the

accused in Sessions Case No.246 of 2006, on the file of V

Additional Sessions Judge, Rayachoty, challenging the

judgment, dated 20.03.2009, where under the learned V

Additional Sessions Judge, Rayachoty, found the accused guilty

of the offence under Section 304 Part-II of the Indian Penal

Code ("I.P.C." for short) as against the original charge under

Section 302 of I.P.C. and convicted him under Section 235(2) of

the Code of Criminal Procedure ("Cr.P.C." for short) and after

questioning him about the quantum of sentence, sentenced him

to suffer rigorous imprisonment for 7 years and to pay a fine of

Rs.100/-, in default to suffer simple imprisonment for six

months.

2) The parties to this Criminal Appeal will hereinafter

be referred to as described before the trial Court for the sake of

convenience.

3) The Sessions Case No.246 of 2006, on the file of V

Additional Session Judge, Rayachoty, arose out of a committal

order in P.R.C.No.45 of 2006, pertaining to Crime No.41 of 2006

of Rayachoty Urban Police Station.

4) The case of the prosecution, in brief, according to

the charge sheet filed by the Inspector of Police, Rayachoty

Urban Police Station in Crime No.41 of 2006 of Rayachoty Urban

Police Station under Section 302 of I.P.C. is as follows:

(i) The accused is native of Gudisenicheruvu,

Peddamandem Mandal, Chittoor District. Presently, he is

resident of Kummaramitta, Rayachoty Town. The defacto-

complainant S. Noorjahan (L.W.1) is resident of D.No.5/192,

Rayachoty Town. One S. Imam Sab (hereinafter will be referred

to as "deceased") was no other than the brother-in-law of

L.W.1. The deceased was also resident of Kummaramitta,

Rayachoty Town. The defacto-complainant (L.W.1) is no other

than the sister-in-law of the deceased. She was blessed with

four sisters and two brothers and among them she is the third

one. L.W.2-Syed Bhashirun was given marriage to the deceased

about seven years back. The deceased and L.W.2 were eking

their livelihood by running a tea stall.

(ii) On 20.03.2006 by 9-00 p.m., accused was scolding

L.W.1's brother-in-law's son. Noticing the same L.W.1 went

there and questioned about the act. On that accused grew wild

and beat L.W.1. Then L.W.2 intervened in the incident and she

was also beaten by the accused. L.W.1 and L.W.2 abused the

accused for his act. Hence, accused bore grudge against them.

While so, on the next day i.e., on 21.03.2006 accused who bore

grudge against them, concealed the knife in his waist and went

in front of L.W.1's house and started abusing them and by the

time it was 8-30 a.m. On hearing the same, L.W.1 came out of

her house and questioned the accused. Then the accused beat

her. Noticing the same, the deceased intervened and then the

accused took the knife out from his waist to his right hand and

stabbed the deceased on his chest and escaped. On account of

the said act, the deceased fell down. L.W.1, L.W.2, L.W.3-Sued

Fakruddin, L.W.4-Shaik Khadar Vali and L.W.5-Shaik Haseena

shifted the deceased to Government Hospital, Rayachoty. The

duty Doctor declared the deceased as died.

(iii) Basing on the hospital intimation, L.W.16-Inspector of

Police, Rayachoty, recorded the statement of L.W.1 and basing

on the said statement, a case was registered and investigated

into. The police conducted inquest over the dead body of the

deceased on 21.03.2006 from 11-30 a.m. to 2-30 p.m. and

during the inquest, blood stained wearing clothes of the

deceased were seized. The inquest panchayatdars, who

attended the inquest, opined that the accused murdered the

deceased over a petty quarrel.

(iv) L.W.16 during investigation visited the scene of

offence and observed the same and seized blood stained earth

and controlled earth and bangle pieces under the cover of

panchanama attested by the mediators. On 21.03.2006 at 3-00

p.m. after the inquest was over, the dead body of the deceased

was sent to L.W.15-medical officer, Government Hospital,

Rayachoty for postmortem examination. The medical officer

conducted postmortem examination and found ante mortem

injuries and opined that the deceased died due to cardio

respiratory failure due to injury to vital organs like heart and

lungs due to stab injury.

(v) During the course of investigation, on 31.03.2006 on

information L.W.16 along with staff and mediators i.e., L.W.12-

Shaik Sadiq Ali and L.W.13-Lakshmipalli Nagaraju went to

Anjaneyaswamy Temple, situated on Rayachoty-Rajampeta

cross road and found the accused there. On seeing the police

party, accused tried to escape. L.W.16 apprehended him. On

interrogation, accused voluntarily confessed about the incident

and it was recorded under the cover of panchanama attested by

the mediators. L.W.16 arrested the accused. Pursuant to the

confession, the accused lead the police party and mediators to

his residence located in Kummarimitta and produced blood

stained shirt and crime weapon i.e., knife and L.W.16 seized the

same under the cover of panchanama attested by the mediators

on 31.03.2006 by 5-15 p.m. The investigating officer sent the

seized incriminating materials to Regional Director, RFSL,

Kurnool, through letter of advice through concerned Additional

Judicial Magistrate of First Class, Rayachoty. The RFSL report is

that human blood is detected on item Nos.1 to 4, 7 and 8 and

blood group is "B". Hence, the charge sheet.

5) The learned Additional Judicial Magistrate of First

Class, Rayachoty, took cognizance under the above provision of

law and after appearance of the accused and after compliance of

Section 207 of Cr.P.C., committed the case to the Court of

Sessions and thereby it was numbered as Sessions Case and

was made over to the V Additional Sessions Judge, Rayachoty.

On appearance of the accused before the Court below, charge

under Section 302 of I.P.C. was framed and explained to him in

Telugu for which he pleaded not guilty and claimed to be tried.

6) In order to establish the guilt against the accused

before the Court below, P.W.1 to P.W.10 were examined and

Ex.P.1 to P.14 and M.O.1 to M.O.8 were marked. After closure of

the evidence of the prosecution, accused was examined under

Section 313 of Cr.P.C. with reference to the incriminating

circumstances appearing in the evidence let in, for which he

denied the same and stated that he has no defence witnesses.

7) The learned V Additional Sessions Judge, Rayachoty,

on hearing both sides and on considering the oral as well as

documentary evidence, found the accused guilty of the offence

under Section 304 Part-II of I.P.C. i.e., culpable homicide not

amounting to murder, as against the original charge under

Section 302 of I.P.C. and convicted him under Section 235(2) of

Cr.P.C. and after questioning him about the quantum of

sentence, sentenced him to suffer rigorous imprisonment for

seven years and to pay a fine of Rs.100/-, in default to suffer

simple imprisonment for six months. Aggrieved by the same,

the unsuccessful accused filed the present Criminal Appeal

challenging the judgment, dated 20.03.2009 in S.C.No.246 of

2006, on the file of V Additional Sessions Judge, Rayachoty.

8) Needless to point out here that as against the

judgment of the learned V Additional Sessions Judge,

Rayachoty, in convicting the accused under Section 304 Part-II

of I.P.C. as against the original charge under Section 302 of

I.P.C., there is no appeal filed by the prosecution. Under the

circumstances, the scope of the appeal is confined to the offence

under Section 304 Part-II of I.P.C.

9) Hence, in deciding this Criminal Appeal, the points

for consideration are as follows:

(1) Whether the prosecution before the Court below proved that the accused caused the death of the deceased by an act of culpable homicide not amounting to murder on 21.03.2006 and whether the prosecution proved the said offence against the accused beyond reasonable doubt?

(2) Whether there are any grounds to interfere with the judgment of conviction and sentence imposed against the appellant before the Court below?

POINTS:-

10) Sri Arun Kumar, learned counsel, representing the

learned counsel for the appellant, would contend that the

investigating officer invented his own procedure in conducting

the investigation is illegal and arbitrary manner. There is lot of

loopholes in the case of the prosecution which was not

considered by the learned Additional Sessions Judge with regard

to the confessional statement of the accused under the cover of

panchanama and further the mahazar under which the weapon

of offence was alleged to be seized. There was no signature of

the accused on those documents which is fatal to the case of the

prosecution. The scene of offence was deliberately shifted from

stage to stage. The evidence of P.W.1 and P.W.2 is interested in

nature. The independent witnesses did not support the case of

the prosecution. The Court below sustained conviction basing on

the interested testimony of P.W.1 and P.W.2 which has no

corroboration from the independent source. According to P.W.1,

the scene of offence was in front of her house. According to

scene observation report under Ex.P.4 and rough sketch under

Ex.P.4 and evidence of P.W.10, the investigating officer, the

scene of offence is located in front of the house of P.W.3. The

prosecution failed to establish the exact scene of offence. On

account of want of signature of the accused on Ex.P.6 and

Ex.P.7, the whole recovery theory of the weapon of offence was

concocted and fabricated. The prosecution did not examine the

punch witnesses. P.W.8, one of the punch witnesses, did not

support the case of the prosecution. The prosecution did not

furnish Ex.P.6 and Ex.P.7 at the time of that recovery to the

case which is a serious lacuna in the case of the prosecution and

contrary to Section 100 (6) of Cr.P.C. P.W.10, the investigating

officer, categorically admitted about the same in the cross

examination and the Court below having given a positive finding

in this regard further failed to hold that the case of the

prosecution is doubtful. M.O.1 was planted deliberately by the

investigating officer to strengthen the case of the prosecution.

11) The learned counsel for the appellant would rely

upon the decision in Ramanand @ Nandlal Bharti vs. State

of Uttar Pradesh 1 to attack Ex.P.6 and Ex.P.7. He would

further rely upon the judgment of the Hon'ble Supreme Court in

Munikrishna @ Krishna etc., vs. State by Ulsoor PS in

Criminal Appeal Nos.1569-1600/2022. He further contend

that the whole case of the prosecution suffers with any amount

of discrepancies and infirmities which was not taken care by the

trial Court, as such, the appeal is liable to be allowed.

12) Sri Y. Jagadeeswara Rao, learned counsel,

representing the learned Public Prosecutor, would contend that

the Court below rightly looked into the evidence of P.W.1 and

P.W.2 and with proper reasons believed the case of the

prosecution. The Court below rightly believed the evidence of

P.W.1 and P.W.2. Though the evidence of P.W.1 and P.W.2 is

interested in nature, but their evidence cannot be disbelieved on

that ground itself, provided if it is trustworthy. The accused is

no other than the close relative of the deceased, P.W.1 and

P.W.2. For silly reason, he committed the murder of the

deceased. Though P.W.3 and P.W.4 did not support the case of

the prosecution, but there is evidence of P.W.5 inquest

panchayatdars and P.W.6 panchayatdar for mahazarnama. The

prosecution examined P.W.7, who supported the case of the

prosecution to certain extent. The prosecution could not

2022 LiveLaw (SC) 843

examine another punch witness for Ex.P.6 and Ex.P.7, as he

died. P.W.8, the punch witness did not support the case of the

prosecution and he was cross examined. He had no necessity to

sign Ex.P.6 and Ex.P.7, if he did not act as punch witness. The

medical evidence corroborates the oral evidence of P.W.1 and

P.W.2 with regard to the manner of attack on the deceased. The

learned Additional Sessions Judge by analyzation of the

evidence, rightly convicted the accused and sentenced him, as

such, the Criminal Appeal is liable to be dismissed.

13) Admittedly, P.W.1 and P.W.2 were the direct

witnesses to the occurrence. It is a case where P.W.3 and

P.W.4 did not support the case of the prosecution and on that

ground, the evidence of P.W.1 and P.W.2 cannot be disbelieved.

Though the evidence of P.W.1 and P.W.2 is interested in nature,

but, they are natural witnesses to the occurrence. It is a case

where the accused is close relative to the family of P.W.1 and

P.W.2. He is also close relative to P.W.1 and P.W.2 and the

deceased. So, what the Court has to see is to scrutinize their

evidence with care and caution.

14) Now, coming to the evidence of P.W.1, she deposed

that Syed Bashirun is her younger sister. The deceased Imam

Saheb is her husband. Fakurddin is the father of the deceased.

Haseena, Srinivasulu and Khadervalli are their neighbourers.

Accused is the husband of the sister of her husband. Mahaboob

Basha is her husband. Darbani is the wife of the accused. They

are all residents of Kummaramitta, Rayachoty Town. The

deceased died about one year ago. On the previous day night at

9-00 p.m., she was sitting in front of her house with one year

old child of her husband's younger brother. Then the accused

came there in drunken state and abused her and child. He also

beat the child. When she questioned the accused, he beat her.

Then her sister Bashirun, her husband and her father-in-law

came there and questioned the accused. The accused beat her

sister also. Then they all beat the accused. The accused went

away saying that he will see their end in the morning. On the

next day morning at 8-00 or 8-30 a.m., the accused came in

front of the house and started abusing them. She came out and

questioned the accused. Her younger sister and her husband

also came there and questioned him. The accused beat her with

hands. Then her sister and her husband came to her rescue and

questioned the act of the accused as to why he was quarrelling

with them. Then the accused took out a knife from his waist

and stabbed the deceased in his left chest. The deceased fell

down. The accused ran away. She, her sister, her father-in-law

and Khadervalli shifted the deceased to Government Hospital,

Rayachoty. Doctor examined him and declared him dead. Police

came to the Government Hospital and recorded her statement.

It is Ex.P.1. They conducted inquest over the dead body of the

deceased at Government Hospital. Police examined her during

the investigation. M.O.1 is the knife with which the accused

stabbed the deceased.

15) Coming to the evidence of P.W.2, the younger sister

of P.W.1 and the wife of the deceased, she deposed that the

deceased is her husband. Fakurddin is her father-in-law. P.W.1

is her elder sister. The accused is the husband of the sister of

husband of P.W.1. They all are residing in the same street. Her

husband died about one year ago. On the previous day night of

the death of her husband, she and P.W.1 were with child in front

of their houses. Accused came there in drunken state and

abused the child. The child is the son of the brother-in-law of

P.W.1. He also abused them and beat the child. P.W.1

questioned the accused. The accused abused and beat P.W.1.

Then she (P.W.2) intervened. The accused beat her also. The

neighbourers came there. Her husband also came there. She

and P.W.1 beat the accused. The accused went away saying

that he will see their end on the next day morning. On the next

day morning at 8-00 p.m., the accused came to her and abused

P.W.1. She and deceased went there and questioned the act of

the accused. Again the accused abused and beat P.W.1. Then

her husband intervened. The accused abused and beat her

husband. Her husband also beat the accused. There was scuffle

between the accused and her husband and they pushed each

other and went in front of the vacant space. There the accused

took out the knife from his waist and stabbed her husband.

M.O.1 is the knife with which the accused stabbed her husband

on his left chest. The deceased fell down with bleeding injuries.

Accused ran away. She, P.W.1 and Khadervalli and her father-

in-law took the deceased to Government Hospital, Rayachoty in

an auto. Doctor examined him and declared him as dead. Police

came there and recorded the statement of P.W.1. They

examined her.

16) According to P.W.3, he knows P.W.1 and P.W.2 and

the husband of P.W.2 who is the deceased. They are all

residents of their street. The accused is residing in another

street. The deceased was killed in front of his (P.W.3's) house

about one year ago. Two days prior to the death, he and his

family members went to Dhobighat for washing clothes and

returned back after two days of his death. Then somebody

informed him that Imam Saheb was killed in front of his house.

He does not know anything about this case. He did not see who

killed Imam Saheb. Prosecution got declared him as hostile and

during cross examination he denied that he stated before police

as in Ex.P.2.

17) P.W.4, the inquest panchayatdar, did not support

the case of the prosecution. The prosecution impeached his

testimony by cross examination. P.W.5 is another inquest

panchayatdar, who supported the case of the prosecution.

P.W.6 is the mahazar witness for observation of the scene of

offence, who supported the case of the prosecution.

18) Turning to the evidence of P.W.7, he deposed that

the deceased died about one year ago. On the date of his death,

he was in his house. At 8-30 a.m., he heard commotion in their

street and came out from his house. He saw the mob running in

the street. He saw Imam Saheb lying in the street with the

injury to his left chest in front of the house of P.W.3. He along

with P.W.1 and P.W.2 and Fakurddin shifted Imam Saheb to the

Government Hospital, Rayachoty in an Auto. Doctor examined

him and found him dead. He did not see who stabbed the

deceased, but he saw P.W.1 and P.W.2 and Fakurddin and some

others at the place of incident. He heard from his neighbourers

that in the previous day night, there was a quarrel between

accused and P.W.1 and P.W.2 and the deceased. He came to

know that the accused stabbed the deceased. The prosecution

got declared him as hostile, as he did not support the case of

the prosecution fully and during cross examination he denied

that he stated before police as in Ex.P.5 i.e., his Section 161 of

Cr.P.C. statement.

19) Therefore, among the direct witnesses to the

occurrence, P.W.1 and P.W.2 supported the case of the

prosecution. P.W.3 another direct witness and P.W.7 another

witness did not support the case of the prosecution. Though

they did not support the case of the prosecution, but to the

extent they supported the case of the prosecution can be looked

into.

20) The Court below believed the evidence adduced by

the prosecution and recorded an order of conviction. Now, in

deciding the point for determination, the prime question that

falls for consideration is as to whether the evidence adduced by

the prosecution especially the evidence of P.W.1 and P.W.2 is

believable and if so whether their evidence coupled with medical

evidence and other evidence would establish the guilt against

the accused.

21) The relationship between P.W.1, P.W.2 and the

accused is not in dispute. P.W.2 is no other than the younger

sister of P.W.1. Accused is no other than the brother-in-law of

the husband of P.W.1, as he married the sister of the husband of

P.W.1. Though the prosecution cited some independent

witnesses i.e., P.W.3 and P.W.7, they did not support the case

of the prosecution. However, the extent to which they supported

the case of the prosecution can be considered. P.W.1 is no

other than the defacto-complainant. P.W.2 is the husband of the

deceased. On the ground that both of them are interested in

the case of the prosecution, their evidence cannot be

disbelieved. If their evidence is trustworthy and believable,

conviction can be sustained against the accused. Keeping in

view the evidence is to be appreciated. Firstly, this Court would

look into the defence of the accused during the cross

examination of P.W.1 and P.W.2.

22) P.W.1 during cross examination deposed that the

deceased has one brother and six sisters. One of the sisters of

Imam Saheb is in Kuwait. She denied that she deserted her

husband and is living in Kuwait. She was sending money from

Kuwait to the deceased and he was lending money to Auto

drivers. She denied the suggestion that there used to be

quarreled between the deceased and his borrowers. The width

of the road running in front of her house is about 15 feet. The

house of Umar Saheb is situated opposite to her house. To the

west of the house of Umar Saheb, there is vacant space and a

house under construction up to basement level. To the further

west of that vacant space there is a lane. On the western side

of that lane the house of Peddaveeti Srinivasulu is situated. The

road runs from South to North. The road in front of her house

runs from West to East. The incident occurred on the road in

front of the house of Peddaveeti Srinivasulu. Bashirun and the

deceased were residing by the side of her house. She denied a

suggestion that as her husband was sending money to the

accused and his wife, she bore grudge against the accused and

his wife. She did not give any report to the police in respect of

the quarrel that took place on the previous day night since the

accused is the husband of her sister-in-law. She denied that no

quarrel took place on the previous day night of the incident as

deposed by her. The incident happened in the morning of the

day of incident, lasted for about five minutes. She denied that

nothing took place as deposed by her and that she was not

present when the deceased received injuries and died. She

denied that somebody killed Imam Saheb in front of the house

of Peddaveeti Srinivasulu during night and that no incident took

place in front of her house as deposed by her and accused did

not quarrel with her and her sister and the deceased and the

accused did not stab the deceased with M.O.1. She denied

further suggestion that there were several enemies to the

deceased in connection with the finance business and enemies

killed him during the night and that she foisted false case

against the accused and that she is deposing false.

23) P.W.2 during the cross examination denied that

nothing took place as deposed by her and the enemies of her

husband killed him in front of the house of Peddaveeti

Srinivasulu during night and that she is giving false evidence at

the instance of P.W.1.

24) By virtue of the defence of the accused as above,

there is no dispute that the death of the deceased was due to

homicidal. The contention of the accused is that the enemies of

the deceased killed him. The above said defence of the accused

is totally baseless in my considered view. The accused is no

other than the brother-in-law of the husband of P.W.1. It is

rather improbable that P.W.1 spared the real culprits and

implicated the accused. The so-called grudge developed by

P.W.1 against the accused is not at all probabalized in any way.

The root cause for the incident was the quarrel said to be took

place one day prior to the incident in the evening. P.W.1

categorically explained in cross examination that she did not

lodge any report with police with regard to previous incident, as

the accused is husband of her sister-in-law. The above

explanation offered by P.W.1 is quietly convincing.

25) On scrutinizing the evidence of P.W.1 and P.W.2, it

is clear that they withstood the marathon cross examination.

Accused got elicited minute details of the topographic particulars

and he did not further dispute the topographic particulars

spoken to by P.W.1 that too in cross examination. It is the

contention of the accused that the prosecution witnesses shifted

the scene of offence from stage to stage. The above said

contention deserves no merits for the reason that the evidence

of P.W.1 is categorical that the quarrel started in front of her

house. It is elicited from the mouth of P.W.2 that the quarrel

started at the house of P.W.1 and both the accused and

deceased pushed with each other and they went in front of the

vacant space. The contention of the appellant is that the scene

of offence as spoken by P.W.2 is different and as spoken by

P.W.3 is different. It is very difficult to accept such a contention.

According to the evidence of P.W.3, the offence took place in

front of his house in a street. P.W.1 categorically deposed in

cross examination that the incident occurred on the road in front

of the house of Peddaveeti Srinivasulu. Here P.W.3-Peddaveeti

Srinivasulu categorically deposed that the deceased was killed in

front of his house about one year back. Here, P.W.3 supported

the case of the prosecution with regard to the scene of offence.

So, the evidence of P.W.1, P.W.2 and P.W.3 is quietly consistent

with regard to the place of offence. What P.W.2 deposed is that

the quarrel started at the house of P.W.1 and both the deceased

and accused went into open space. Having scrutinized the

evidence on record, absolutely, the contention of the appellant

that the prosecution witnesses shifted the scene of offence from

stage to stage deserves no merits.

26) Admittedly, some omissions are suggested to P.W.1

and P.W.2 during cross examination and are further elicited from

the mouth of P.W.10, investigating officer. Now, it is a matter

for consideration to decide as to whether such omissions are

fatal to the case of the prosecution. During cross examination,

P.W.1 denied that she did not state in Ex.P.1 and in Section 161

of Cr.P.C. statement that the father-in-law of Basheerun came

to the place of quarrel and questioned the accused and that she

did not state that the deceased Imam Saheb came to the place

of quarrel and questioned the accused in the previous night and

that she did not state in Ex.P.1 and Section 161 of Cr.P.C.

statement that the accused beat the child and he went away

threatening to see their end in the morning. P.W.2 during cross

examination denied that she did not state in her Section 161 of

Cr.P.C. statement that she along with P.W.1 were with a child

and the accused beat the child and that her husband was also

present and that she did not state that she and P.W.1 beat the

accused and that the accused went away saying that he will see

their end.

27) P.W.10, the investigating officer, during cross

examination, deposed that P.W.1 did not state before him in her

Section 161 of Cr.P.C. statement or in Ex.P.1 that her father-in-

law Basheerun and deceased came to the place of quarrel and

that they questioned the act of the accused on the previous day

and that the accused went away saying that he will see their

end. He deposed in cross examination that P.W.2 did not state

before him in her Section 161 of Cr.P.C. that she along with

P.W.1 were with child and accused beat the child and her

husband was also present by then and that she and P.W.1 beat

the accused and the accused went away saying that he will see

their end. Basing on these omissions, the contention of the

accused is that the case of the prosecution is false.

28) Now, this Court has to see whether P.W.1 and P.W.2

deviated from the substratum of the case of the prosecution and

introduced the wholly improvements. To decide the same, it is

pertinent to look into the contents of Ex.P.1. As seen from

Ex.P.1, the allegations are that on 20.03.2006 at 9-00 p.m., the

accused was scolding, the son of her brother-in-law Khadar

Basha and she questioned the act of the accused for which the

accused beaten her. He also abused Basheerun and beaten her.

Keeping the same in view, on 21.03.2006 at 8-30 a.m., he came

again and abused and she came out and questioned the act of

the accused and then the deceased and sister of the defacto-

complainant intervened and then the accused removed the knife

from his waist and stabbed the deceased and then the accused

absconded. So, the substratum of the case of the prosecution is

with regard to the incident happened on 20.03.2006 at 9-00

p.m., i.e., previous night and the incident happened on the next

day. Even if the omissions deposed by P.W.1 and P.W.2 are

excluded from consideration, the substratum of the case of the

prosecution remained unchanged. The evidence of P.W.1 with

regard to act of accused against the son of brother-in-law of

P.W.1 on the previous night and that he beaten her and also her

sister and further the incident happened on 21.03.2006 at 8-30

a.m., i.e., accused attacking the deceased is spoken to by

P.W.1. Even if the omissions are excluded, the evidence of

P.W.1 with regard to the previous day incident and with regard

to the incident happened on the date of offence has basis from

Ex.P.1. Under the circumstances, the omissions that are

suggested to P.W.1 and P.W.2 and elicited during the cross

examination of investigating officer are of no use to the defence

of the accused. It is not the case of the accused that previous

incident spoken to by P.W.1 as the accused abused child and

further the incident happened on the date of offence i.e., attack

made by the accused on the deceased are the omissions.

Therefore, there is consistency in the evidence of P.W.1 and

P.W.2 with regard to the manner of attack and place of attack

and the motive for the attack and the incident of attack. It is

really improbable that P.W.1 and P.W.2 spared the real culprits,

if really somebody murdered the deceased.

29) Admittedly, it is a case where the case of the

prosecution is that the investigating officer arrested the accused

and recovered M.O.1. The prosecution examined P.W.8, the

panchayatdar, who deposed that police did not arrest the

accused in his presence. On 31.03.2006 at 5-40 p.m.,

Rayachoty Police obtained his signatures on two written papers

when he was outside M.R.O. Office. He signed on Ex.P.6 and

Ex.P.7 panchanamas. He does not know when Sadaq Ali signed

in Ex.P.6 and Ex.P.7. The prosecution got declared him as

hostile and during cross examination he denied that on

31.03.2006 at 4-00 p.m., C.I. of Police arrested the accused

near Anjaneyaswamy Temple situated at Rayachoty-Rajampet

cross road in his presence and the presence of Sadaq Ali and

that they acted as panchayatdars and in pursuance of the

voluntary statement made by the accused under Ex.P.6, the

police recovered M.O.1 knife and that he is deposing false.

30) There is evidence of P.W.10, the Inspector of Police,

speaking to the fact that in the presence of P.W.8 and Sadaq Ali,

he arrested the accused under Ex.P.6 and in pursuant of the

disclosure statement, he recovered M.O.1. In fact, P.W.8 has no

business to simply oblige the police in putting signatures on

Ex.P.6 and Ex.P.7. So, for the reasons best known, he turned

hostile to the case of the prosecution. The prosecution could not

examine Sadaq Ali as he died as evident from the record.

31) This Court has gone through Ramanand's case (1

supra) wherein the Hon'ble Supreme Court held that to draw

discovery panchanama as contemplated under Section 27 of the

Evidence Act, the investigating officer should have called two

independent witnesses. Now, coming to the present case on

hand, it is a case where the investigating officer secured the

presence of P.W.8 and Sadaq Ali and Ex.P.6 and Ex.P.7 contains

their signatures. It is not a case where the investigating officer

without resorting to join independent witnesses for Ex.P.6 and

Ex.P.7 made recovery under the cover of police proceedings.

Simply because P.W.8 turned hostile, the evidence of P.W.10

investigating officer cannot be disbelieved. The fact is that the

investigating officer secured P.W.8 and Sadaq Ali to act as

independent panchayatdars, but unfortunately, P.W.8 turned

hostile and Sadaq Ali could not be examined as he died.

Therefore, it is not a case where the evidence of investigating

officer is to be disbelieved on the sole ground that P.W.8 turned

hostile. Hence, the above said decision is of no use to the case

of the appellant, as the investigating officer completed the

joining of two independent witnesses to Ex.P.6 and Ex.P.7.

32) Coming to another decision of the Hon'ble Supreme

Court in Criminal Appeal Nos.1597 - 1600/2022, it dealt with

the essential principles relating to proving of case basing on the

circumstantial evidence. Here the prosecution sought to prove

the guilt against the accused basing on the direct evidence.

Hence, the above said decision is of no use to the case of the

appellant.

33) Admittedly, Ex.P.6 and Ex.P.7 did not disclose that

investigating officer obtained the signatures of the accused on

Ex.P.6 and Ex.P.7. The investigating officer was not cross

examined in this regard. This Court has no reason to disbelieve

the recovery of M.O.1 spoken to by P.W.10 pursuant to the

disclosure statement made by the accused under Ex.P.6. The

recovery was effected under the cover of Ex.P.7. It is to be

noticed that it is a case where P.W.1 and P.W.2 categorically

deposed that accused removed knife from his waist and attacked

the deceased. So, the minute particulars of the weapon were

spoken to by P.W.1 and P.W.2. On the ground that P.W.8 turned

hostile to the case of the prosecution, the recovery projected by

the prosecution basing on Ex.P.6 and Ex.P.7 cannot be

disbelieved.

34) Turning to the contention of the appellant that the

investigating officer did not comply Section 100(6) of Cr.P.C. by

furnishing Ex.P.6 and Ex.P.7, this Court would like to make it

clear that the provisions of Section 100 of Cr.P.C. are applicable

when there was a house search. Here the case of the

prosecution is that the investigating officer effected recovery of

M.O.1 pursuant to the disclosure statement made by the

accused. So, it is the accused who lead the police party and

shown M.O.1. Therefore, the recovery of M.O.1 cannot be

equated to that of the procedure contemplated under Section

100 (6) of Cr.P.C. which is relating to house search.

35) Coming to the evidence of P.W.9, the medical

officer, on 21.03.2006 on the requisition from S.H.O., Rayachoty

Police Station, he conducted autopsy on the dead body of the

deceased Syed Imam Saheb. He found a stab injury over the

frontal side of chest i.e., 5 c.m. away from the left side of

nipple, adjacent to the sterna edge, Elliptical in shape and 2.5 x

2.5 x 10.00 c.ms. in size. He found the small lineal abrasion

over the right side of frontal chest just below the nipple.

According to him, the deceased would have died of due to cardio

respiratory failure, due to injury to vital organs like heart and

lungs, due to stab injury. Ex.P.8 is the postmortem report. The

injury found by him in Ex.P.8 is possible with weapon like M.O.1.

Therefore, the cause of death is homicidal by virtue of the

evidence of P.W.9 coupled with Ex.P.8, postmortem report. The

accused did not dispute the cause of death. Even according to

him, the deceased was murdered. His contention is that some

enemies murdered the deceased. The above said contention

advanced by the accused is baseless as this Court already

pointed out. Hence, the prosecution is able to prove further that

the death of the deceased was due to homicidal. This Court has

no reason to disbelieve the evidence of P.W.1 and P.W.2 that

the accused stabbed the deceased on the date of offence

thereby caused his death.

36) P.W.10, the investigating officer, spoken about the

fact that on 21.08.2006 having received the hospital intimation

under Ex.P.9, he proceeded to the Government Hospital,

Rayachoty and recorded the statement of P.W.1 and registered

it as a case in Crime No.41 of 2006 under Section 302 of I.P.C.

He conducted inquest over the dead body of the deceased by

returning to the Government Hospital, in the presence of

witnesses. He forwarded the dead body for postmortem. Before

that he conducted inquest and the inquest panchayatdars opined

that the death was due to stab injury. He spoken about the

examination of the blood relatives of the deceased. He further

spoken about the seizure of M.O.3 blood stained shirt and M.O.4

blood stain Baniyan and M.O.5 underwear. He spoken about the

visiting of scene of offence and drawing of rough sketch. As

pointed out he further spoken about the arrest of the accused

and recovery of M.O.1 under the cover of Ex.P.6 and Ex.P.7.

According to him, he obtained RFSL opinion also under Ex.P.4

and item Nos.1 to 4, 7 and 8 contains human blood and the

group is "B" group. Except eliciting that P.W.1 and P.W.2

improved the evidence on certain aspects, there remained

nothing in his cross examination to disbelieve the investigation

conducted by P.W.10. This Court is of the considered view that

the evidence on record is believable and the evidence on record

further proved the fact that the accused caused the death of the

deceased by stabbing on the chest of the deceased. As seen

from the judgment of the Court below, the learned V Additional

Sessions Judge, Rayachoty dealt with each and every contention

raised by the learned defence counsel and answered the same

with proper reasons. Further the Court below with reasons held

that the act of the accused would come under the purview of

culpable homicide not amounting to murder and the said

findings are not challenged by the prosecution.

37) Having regard to the above, this Court is of the

considered view that the prosecution before the Court below

proved beyond reasonable doubt that the accused caused the

death of the deceased by doing an act which amounts to

culpable homicide not amounting to murder. In my considered

view, the learned V Additional Sessions Judge, Rayachoty with

proper reasons found guilty of the appellant and rightly

convicted and sentenced him as above. Hence, I see no reason

to interfere with the judgment of the learned V Additional

Sessions Judge, Rayachoty.

38) In the result, the Criminal Appeal is dismissed.

39) The Registry is directed to take steps immediately

under Section 388 Cr.P.C. to certify the order of this Court to

the trial Court on or before 27.04.2023 and on such certification,

the trial Court shall take necessary steps to carry out the

sentence imposed against the appellant and to report

compliance to this Court.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 20.04.2023 PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL. APPEAL NO.1836 OF 2009

Registry to circulate a copy of this judgment to the Court below on or before 27.04.2023.

Date: 20.04.2023

PGR