Kaligithi Sekhar, ... vs State Of Ap., Rep. Pp., Hyd.,
2023 Latest Caselaw 137 AP

Page No.1                                                 Crl.Appeal No. 322 of 2013




                   HON'BLE SHRI JUSTICE M.GANGA RAO

                                        &

              HON'BLE SHRI JUSTICE T.MALLIKARJUNA RAO



                     CRIMINAL APPEAL No.322 of 2013



JUDGMENT: (Per Hon'ble Shri Justice T.Mallikarjuna Rao)

    1.

The appellant herein is the accused in Sessions Case No.45 of 2011,

who faced the trial for the offences punishable under Sections 302,

326 and 324 Indian Penal Code (for short IPC). By its Judgment dated

20.03.2013, the learned II Additional District and Sessions Judge,

Amalapuram, convicted the accused for the offences punishable under

Sections 302, 326 and 324 IPC. The accused was found not guilty of

the charge under Section 307 IPC and acquitted. The trial Court

convicted and sentenced the accused to undergo imprisonment for life

and also pay of fine of Rs.5,000/- in default of the payment of the fine

amount, he shall undergo simple imprisonment for the offence under

Section 302 IPC, further sentenced to undergo rigorous imprisonment

for three years, also pay a fine of Rs.2,000/- in default of payment of

fine amount, he shall undergo simple imprisonment for three months

for the offence punishable under section 326 IPC for the injuries

caused to PW.1 - Thote Chellayamma. Further sentenced to undergo

rigorous imprisonment for six months and also to pay a fine of

Rs.500/- in default of the payment of the fine amount, he shall

undergo simple imprisonment for two months for the offence Page No.2 Crl.Appeal No. 322 of 2013

punishable under section 324 IPC for the injuries caused to PW.1 and

PW.2 - Thote Rajesh; the above sentences shall run concurrently.

2. The substance of the charges against the accused is that on

21.09.2010 at 07.00 PM at canal bund in Battelanka Village,

murdered Thote Srinivas (hereinafter referred to as 'deceased') by

hacking with a knife on the right side of his neck and also hacked

Thote Chellayamma -- PW.1 and Thote Rajesh -- PW.2 with a knife

made an attempt to commit murder.

3. In brief, the case of the prosecution's case is that :

a) The accused and PWs.1 and 2 are residents of Battelanka Village. The

deceased was doing cultivation and eking out his livelihood. He was

an active member of Yuvajana Sangam in Battelanka village. The

members of the Yuvajana Sangam used to keep a whistle on the anti-

social elements. They caught the accused twice when he was

harassing and forcing a woman to do prostitution. They placed the

matter before elders PW.6 - Geddama Mohana Madhu Babu, PW.7 -

Undru Prasad, LW.11 - Thote Krishna and LW.12 - Moka Venkata

Ramana. The elders admonished the accused. The accused made up

his mind to do away with the deceased's life and tried several times,

but he could not succeed.

b) On 21.09.2010 at 07.00 PM, the accused noticed that the deceased

had gone home, and with a predetermined mind, he secured a knife

concealed behind his back and began proceeding to the deceased's

house. After crossing the bridge, while going along the canal, the

accused was shouting. On hearing the same, the deceased came onto Page No.3 Crl.Appeal No. 322 of 2013

the canal bund. The accused abruptly pounced upon him and hacked

on the right side deceased neck with a curved knife. The deceased

sustained a bleeding injury, collapsed on the road, and succumbed to

injuries.

c) Simultaneously, on hearing the shouts of the accused, PWs.1 and 2

and the younger brother of the deceased also came out. When they

approached the deceased, the accused made an attempt on their lives

by hacking them with the same knife indiscriminately and escaped

with the knife. PWs.1 and 2 were taken to Community Health Center,

Razole, for treatment, where PW.1 gave Ex.P1 statement to Razole

Police, who in turn sent the report to Malikipuram Police Station and

they registered the crime, based on the statement of PW.1 as a case in

Cr. No.93 of 2010 under Sections 302, 307 IPC. PW.14 -

Sri.N.Rajarao, Inspector of Police, took up further investigation and

laid the charge sheet on the completion of the investigation against

the accused.

4. The 1st Additional Judicial First Class Magistrate has taken on file as

PRC No. 31 of 2010. On appearance, furnished the copies of the

documents to the accused under Section 207 Cr. P.C. and committed

the case to the Sessions Court. Based on the material available on

record, as referred to earlier, charges came to be framed, read over

and explained to the accused. He pleaded not guilty and claimed for

trial.

Page No.4 Crl.Appeal No. 322 of 2013

5. To prove the case, the prosecution examined P.Ws.1 to 14 and got

marked Exs.P.1 to P.14, besides marking M.Os.1 to 7. After

completing the prosecution evidence, learned Sessions Judge

examined the accused under Section 313 Cr.P.C. concerning the

incriminating circumstances appearing against him in the evidence of

prosecution witnesses, which he denied. The defence was of total

denial and false implication by the deceased's family members. No oral

or documentary evidence was adduced on behalf of the defence. The

defence was one of total denial.

6. After considering the material available on record, the learned

Sessions Judge found the guilt of the accused/appellant and

convicted and sentenced as stated hereinbefore. Aggrieved by which

the present appeal has preferred.

7. Smt.C.Vasundhara Reddy, learned counsel for the appellant, would

contend that the learned trial judge erred in placing reliance on the

highly interested and discrepant testimonies of PWs.1 to 7 and failed

to notice that PWs.1 to 5 are the family members of the deceased and

examined no independent witness. The learned trial Judge erred in

ignoring several discrepancies that came out in the evidence of PWs.1

and 2 about the attack on the deceased and PWs.1 and 2, and there

was no proximate and immediate motive for the accused to attack

them and the evidence of PWs.1 and 2 is inconsistent with the medical

evidence. She submits that the accused is blind and could not have Page No.5 Crl.Appeal No. 322 of 2013

attacked the deceased in the manner spoken to by prosecution

witnesses. She further contends that the learned trial Judge erred in

dismissing the petition filed under Section 45 of the Indian Evidence

Act to send him to an ophthalmologist to examine his vision.

8. The learned Public Prosecutor submits that the evidence of PWs.1 and

2 is creditworthy and inspires confidence. The presence of PWs.1 and

2 at the scene of the offence, along with the deceased, is quite natural;

they sustained injuries in the incident in question. Their presence at

the scene of offence is established. It is settled law that merely

because a person is a related witness, the Court cannot reject such

evidence. Otherwise, the same is found credible.

9. We have heard the learned counsel for the parties and perused the

record. Now, the point that arises for consideration is whether the

prosecution proved the guilt of the accused beyond all reasonable

doubt.

10. The main stay of the prosecution is the evidence of PWs.1 and 2 to

prove the commission of the offence. They claimed to sustain injuries

in the incident and were eyewitnesses. The relationship among PWs.1

to 5 is not in dispute. PWs.1 to 5 and the accused are residents of

Battelanka Village. PW.1 is the wife of LW.3 - Thote Krishna Murthy.

The deceased Thote Srinivas, PW.2, PW.3 - Thote Srirama Murthy are

the sons of PW.1 and LW.3. PW.4 - Thote Suneetha is the wife of

PW.3. PW.5 Thote Venkateswara Rao is the senior paternal uncle of

PWs.2 and 3.

Page No.6 Crl.Appeal No. 322 of 2013

11. According to the evidence of PW.1, on 21.09.2010, she, PW.2, LW.3 -

Krishna Murthy and the deceased went to coolie work and returned

home at 07.00 PM. At that time, the accused was present at the

culvert, abusing her sons in a most offensive language, referring to

her and proclaiming to kill all of them. Still, they have not retorted the

accused, but she, PW.2 and the deceased questioned the accused why

he was hurling abuses. When they were asking, the accused took out

a knife from his backside waist and hacked into the right side neck of

the deceased. When they went to rescue the deceased, the accused

attacked her with the same knife on her right shoulder, forearm, right

side cheek and also on her knuckles of the hand. The accused also

attacked PW.2 on the right side thigh region. PW.1 had shown the

injuries and scars on her shoulder, forearm, right cheek and knuckles

before the trial court. Upon receipt of the injuries, they raised cries,

and the neighbours came; on seeing them, the accused ran away from

there with a knife. The deceased fell at the scene of the offence with

bleeding injuries and died instantaneously. She and PW.2 were shifted

the deceased to the Razole Government Hospital in 108 Ambulance.

While she was in the hospital, the police came there and recorded

Ex.P1 statement in which she put her thumb impression. She

identified the curved knife, i.e., MO.1.

12. In the cross-examination, it is suggested to PW.1 that she, PW.2 and

the deceased were attacked by more than one person under cover of

darkness from their backside with a sharp knife. It is also suggested

that she, the deceased and PW.2 used to commit theft of coconuts in Page No.7 Crl.Appeal No. 322 of 2013

the nearby coconut topes. The owners of coconut topes caught her

and the deceased; inflicted injuries on them, so they foisted this false

case against the accused because of the previous hostility regarding

the eve-teasing of his daughter. They have suppressed the names of

real assailants from the beginning. The accused had nothing to do

with the case. PW.1 flatly denied the suggestions, reflecting the

defence stand in this case. In Section 313 Cr.P.C. examination, the

accused denied the prosecution's case and stated that some boys

caused a nuisance to her daughter. She reported the same to him and

said she would not attend school. But he convinced her to go to school

on the assurance of reporting matter to the elders, and the elders

admonished the boys. Said boys went to his house and raised shouts,

and he is nothing to do with the case. However, the accused did not

attribute anything against the deceased.

13. According to PW.12 - V.R.Mohana Rao, who worked as ASI of Police,

Razole, on 21.09.2010 at 09.00 PM, he received hospital intimation

(Ex.P10) from Razole Government Hospital about the admission of

PWs.1 and 2 in the hospital. Immediately he went and recorded the

statement of PW.1, i.e., Ex.P1 and sent Exs.P1 and P10 to

Malikipuram Police Station through PC.3512 of Razole. The evidence

of PW.1 regarding giving of Ex.P1 statement and recording of such

statement by PW.12 is established by their evidence.

14. According to PW.13 - V.Srinivas, SI of Police, Malikipuram PS, on

21.09.2010 at about 10.30 PM, he received Exs.P1 and P10 through

PC.3512 of Razole PS, and he registered Ex.P1 as a case in Cr. No.93 Page No.8 Crl.Appeal No. 322 of 2013

of 2010 for the offence under Sections 302 and 307 IPC and issued

Ex.P11 FIR.

15. It is the evidence of PW.14 - M.Raja Rao, CI of police, that on

21.09.2010 at about 11.30 PM, he received an FIR from PW.13 and

took up an investigation. On the same day, at approximately 11.45

PM, he proceeded to CHC, Razole. From there, he proceeded to the

offence scene at Battelanka village. It is situated on No.1 canal bund

gravel road near the deceased's house.

16. He further deposed that on the next day, i.e., 22.09.2010, he secured

the presence of PW.19, LW.16 K.Madan Mohan Malaiah and LW.17 -

B.Lakshmanarao to the scene of offence by 06.00 AM and in their

presence he observed the scene of offence in between 06.00 AM to

07.00 AM. The deceased's dead body was lying in a pool of blood at

the scene of the offence. The deceased house is at a distance of 50

meters away from the southern side. From the scene of the offence, he

collected MO.2 - Blood stained earth and MO.3 - Controlled earth in

the presence of PW.9, LWs.16 and 17. He photographed the scene of

an offence under cover of Ex.P2 Photos 4 in number along with CD

and prepared a scene observation report under Ex.P3 through PW.9.

He prepared Ex.P12 - Rough sketch. He conducted an inquest over

the dead body of the deceased in the presence of kith and kin of the

deceased and PW.9, LW.16 - Kandikatla Madan Mohan Malaiah and

LW.18 - Thota Srinivasarao. The dead body was sent to CHC, Razole

for postmortem examination; he seized the bloodstained clothes of the

deceased, i.e., MO.6 - White light green and black colour stripes half Page No.9 Crl.Appeal No. 322 of 2013

hands shirt and MO.7 is cement colour pants at the time of

postmortem examination. PW.14's evidence is supported by PW.8 K.

Ratna babu's evidence - K. Ratna Ba, that on 22.09.2010, he was

called by P.W 14. He went to the house of PW.1 and photographed the

dead body at the scene of the offence, and he identified Ex.P2 photos

along with the CD. He denied the suggestion that TV9 supplied

Ex.P2 photographs. It is not suggested to PW.8 that the said

photographs do not pertain to the scene of the offence and the

deceased.

17. PW.9 - V.Venkata Ramaraju, VRO of Battelanka Village, that on

22.09.2010, he and LW.17 were taken to the scene of offence which is

situated at No.1 canal bund gravel road at a distance of 50 meters

away from the house of deceased. He further deposed that at the

scene of the offence, the dead body of the deceased was lying facing

upwards with a cut injury on the right side neck. From the scene of

the offence, the police collected bloodstained earth and controlled

earth in his presence, and he prepared Ex.P3 scene observation report

covering the lifting of MOs.2 and 3. Thus the evidence of PW.9

supports and corroborates the evidence of Investigating Officer.

According to his evidence, on the same day at 08.00 AM, LWs.16 and

18 conducted an inquest over the deceased's dead body in the

presence of PWs.3 and 5 and LW.3, and he prepared Ex.P4 inquest

report. Inquestdars opined that the deceased was hacked due to

previous grudges, i.e., the deceased and youth members caught hold Page No.10 Crl.Appeal No. 322 of 2013

of the accused and one woman by the name Kumari while they were

doing prostitution and produced them before elders.

18. According to PW.10, Dr K.V.S.Nagendrarao, Deputy Civil Surgeon,

CHC, Razole, on 22.09.2010, he received a requisition from CI of

police, Razole to conduct a postmortem examination of Thote Srinivas.

He conducted a postmortem examination of the dead body of the

deceased, and he noticed the following injuries.

External injuries: An incised wound of 4 inches x 2 inches x 2 inches on the right side of the neck, just above the clavicle, with the cutting of the great vessels and muscles of the neck and soft parts. On the cut section, blood clots are present in the wound.

Internal injuries: Viscera normal, cut section pale.

To that effect PW.10 issued Ex.P7 postmortem certificate; PW10

is of the opinion that the deceased might have died of haemorrhage

and shock due to the cutting of great vessels on the right side neck of

the deceased, which could have been caused by MO.1. In the cross-

examination PW.10 deposed that at the time of PM examination a

copy of inquest report was furnished to him. He stated that the

deceased is the youngest and moderately built-up body. After

receiving a cut injury on the right side neck, the deceased would have

survived a minimum of 10 to 15 minutes, and there is a possibility of

sustaining external injuries on the deceased's body. The deceased

would have struggled for life minimum of 10 to 15 minutes. He denied

the suggestion that the injuries found on the right side of the

deceased's neck could have been caused from the back side of the Page No.11 Crl.Appeal No. 322 of 2013

deceased being hacked by the assailant. He admitted that around the

neck, all the tissues would be soft, except the trachea, and if the

assailant used more force, the depth of the injury would be more than

the length of the injury.

19. At this juncture, referring to the suggestions put to PWs.2 to 5 in

cross-examination is relevant; it is suggested to them in cross-

examination that they used to commit the theft of coconuts, some

ryots attacked pw1 and the deceased under cover of darkness from

their backside with a sharp straight knife. PWs.1 and 2 sustained

injuries, and the deceased consequently died, and they suppressed

the names of actual assailants. From the reading of the said

suggestions, it is clear that the defence has not disputed the case of

the prosecution that PWs.1 and 2 sustained injuries and the deceased

died due to injuries sustained in the incident.

20. It is the evidence of PW.14 that on 25.09.2010, he sent MOs.1 to 7 to

RFSL, Vijayawada under cover of Ex.P13 letter of advice and on

07.10.2010 he received Ex.P14 RFSL report and as per Ex.P14, the

blood was detected on MOs.1, 2, 4 to 7 was the human blood, and the

blood group was not detected.

21. The evidence of PW.9 establishes that after examining the dead body

and on examination of panchanama witnesses, the panchayatdars

unanimously opined that the deceased was hacked by the accused

due to previous grudges. The evidence of PW.9 also establishes that

the police collected bloodstained earth and controlled earth from the

scene of the offence. The scene observation report also supports the Page No.12 Crl.Appeal No. 322 of 2013

prosecution case regarding the place where the deceased was attacked

and dead. The inquest and postmortem wound certificate reports

clearly show that the deceased sustained injuries as contended by the

prosecution. The nature of the injuries sustained by the deceased

indicates that the death was not natural. As per the inquest report,

the deceased died due to injuries sustained by him. The evidence of

PW. 10 establishes that he noticed an incised wound of 4 inches x 2

inches x 2 inches on the right side of the neck. Therefore, it

established the death of the deceased was homicidal. The said

prosecution's case is also not disputed by the defence. It is also the

stand of defence that some ryots attacked the deceased, and so the

deceased died with injuries. The material on record indicates that the

prosecution established the homicidal death of the deceased.

22. From the reading of the evidence of PW.9 and PW.14, it can see that

there is an elaborate cross-examination concerning the scene of the

offence. After careful reading of Ex.P3 the scene observation report

and Ex.P12 rough sketch. This Court finds that the scene of the

offence is situated at a distance of 50 meters from the house of PW.1

on the canal bund gravel road in a northeastern direction, and the

house of the accused is situated at a distance of 100 meters. The

cross-examination is held as if there is a serious dispute with regard

to the scene of the offence. It is not the case of the accused that the

dead body was not found at the scene of the offence or the deceased

was murdered elsewhere. It is the prosecution's case the accused had

the motive to kill the deceased, as already observed that PW.1 also Page No.13 Crl.Appeal No. 322 of 2013

stated in her evidence regarding the said motive. In the cross-

examination of PW.1, it is elicited that there is a registered Harijana

sangham in their village, and all their community people, including

the accused, are members of the said society. PW.5 is the President of

said Sangam. PW.1 also admitted that PW.5 used to get grants for the

said sangham and that the members formed the said Sangham. Still,

it was not registered, and if any dispute arises, it will be placed before

PW.5, and she was not present when the deceased and other members

caught the accused and another woman Kumari.

23. PW.2 also stated in his evidence that on 30.12.2009, the deceased,

LWs.10 to 12, caught the accused and Kumari at their house while

they were doing prostitution and brought them before PW.5. PW.2

stated in cross-examination that he was not present at that time. The

same version is given by PW.3 - T.Srirama Murthy and PW.4 in their

chief examination. According to the evidence of PW.5, eight months

before the incident, the deceased caught the accused and one Kumari

at her house while they were doing prostitution and brought them

before him. He is an elder, and LW.18 T.Srinivasa Rao, a member of

said Sangam, admonished the accused and Kumari and let them out

not to repeat the same in future. Since then, the accused bore a

grudge against the accused and used to hurl abuses and proclaimed

that he would kill the deceased at any time. From the reading of the

evidence of PWs.1 to 5, it can be seen that they have clearly stated in

their evidence that the accused was caught while he was doing Page No.14 Crl.Appeal No. 322 of 2013

prostitution with one Kumari at her house. However, the accused has

disputed the said version.

24. The prosecution examined PWs.6 and 7 to prove that the accused

developed grudge against the accused. PW.6 - G.Madhu Babu stated

in his evidence that on 31.12.2009, while the accused and Kumari

were prostituting in her house, he, the deceased and LWs.11 to 13

caught them and produced before PW.5 and LW.8. They admonished

the accused. They warned them not to repeat the same in future.

Since then, the accused bore a grudge against the deceased and

others and abused them so that he would kill all of them. In the cross-

examination, it was suggested to PW.6 that she did not state before

the police the incident said to have happened on 31.12.2009. Coming

to the evidence of Investigating Officer PW.14, he stated that PW.6 had

not stated before him on 31.12.2009 while the accused and Kumari

were prostituting in her house, he, the deceased and LWs.11 to 13

caught them.

25. Coming to the evidence of PW.7 on 31.12.2009, he stated while the

accused was prostituting with one Kumari at her house, they caught

the deceased, PW.6 and LW.12, himself. They produced them before

PW.5. In this regard, PW.14 stated in his cross-examination that PW.7

had not stated such a version before him.

26. After reading the evidence of PW.14, it seems that PWs.6 and 7 had

not stated before Investigating Officer about the incident said to have

happened on 30.12.2009 or 31.12.2009. In view of the same, this Page No.15 Crl.Appeal No. 322 of 2013

Court is not inclined to give much credence to their evidence on the

said aspect.

27. In a Plethora of decisions, it has been held that in criminal cases,

sometimes offences are committed without any motive on trifle matter.

Still, motive loses its significance when the case is based on an

eyewitness account. We will advert to refer to some of the decisions of

the Apex Court concerning this aspect.

28. In the case of State of H.P.v: Jeet Singh1, the Apex Court has made

the following observations: -"No doubt it is a sound principle to

remember that every criminal act was done with a motive, but its

corollary is not that no criminal offence would have been committed if

the prosecution has failed to prove the precise motive of the accused to

commit it. When the prosecution succeeded in showing the possibility of

some ire for the accused towards the victim, the inability to further put

on record the manner in which such ire would have swelled up in the

mind of the offender to such a degree as to impel him to commit the

offence cannot be construed as fatal weakness of the prosecution. It is

almost an impossibility for the prosecution to unravel the full dimension

of the mental disposition of an offender towards the person whom he

offended".

29. It is a settled legal proposition that even if the absence of motive as

alleged is accepted, that is of no consequence and pales into

insignificance when direct evidence establishes the crime. Therefore, if

there is direct, trustworthy evidence of witnesses as to the commission

(1999) 4 SCC 370 Page No.16 Crl.Appeal No. 322 of 2013

of an offence, the motive part loses its significance. Therefore, if the

genesis of the motive of the occurrence is not proved, the ocular

testimony of the witnesses as to the occurrence could not be discarded

only because of the absence of motive. If otherwise, the evidence is

worthy of reliance. (Vide Hari Shankar Vs. The State of U.P., (1996) 9

SCC 40; Bikau Pandey & Ors. Vs. The state of Bihar, (2003) 12 SCC

616; and Abu Thakir & Ors. Vs. State of Tamil Nadu, (2010) 5 SCC 91) :

(AIR 2010 SC 2119: 2010 AIR SCW 2799).

30. One need not delve much as far as the legal position is concerned. The

prosecution cannot be disbelieved even if it failed to establish the

motive on the part of the accused as it is a case based on the

eyewitness's evidence but not on circumstantial evidence. However,

the evidence of PW.5 establishes that the accused and Kumari were

brought before him, and they admonished them.

31. It is the case of the prosecution at the time of the incident, PWs.1, 2

and the deceased were present. After the accused hacked the

deceased, PWs.4 and 5 rushed to the offence scene. After the entire

occurrence, PWs.6 and 7 rushed to the scene of an offence to learn

about the incident. It is not the evidence of PWs.6 and 7 that they

witnessed the occurrence. It is not the prosecution's case that any

other person witnessed the incident except PWs.1, 2, 4 and 5. The

Investigating Officer has prepared Ex.P12 rough sketch. The existence

of the houses of Thote Nagamalleswara Rao and Thote Venkateswara

Rao was shown in a rough sketch. It is not the prosecution's case that

the inmates of Thote Nagamalleswar Rao and Thote Venkateswara Rao Page No.17 Crl.Appeal No. 322 of 2013

were present at their residential houses, and they witnessed the

incident. In addition, it is not elicited in the cross-examination of

PWs.1 to 5 as to whether the family members of Thote

Nagamalleswara Rao and Thote Venkateswara Rao reached the scene

of offence or not. There is no evidence on record to show that the

incident was witnessed by some other persons except PWs.1 to 5. In

the facts of the case, the non-examination of independent witnesses

cannot be a ground to discredit the evidence of eyewitnesses.

32. The other contention is that PW.10 did not find any injury on the

deceased's body except the injury shown in Ex.P7 postmortem

certificate. The defence contends that before dying, the deceased

would have struggled on the surface, and he could sustain other

injuries. In this regard, after taking into consideration of the medical

evidence and oral evidence of PWs.1 to 5, the trial court observed that

the deceased sustained inside injury of 4 inches x 2 inches x 2 inches

on the right side of the neck and it caused instantaneous death as per

the evidence of PWs.1, 2. PWs.1 and 2 did not state in their evidence

the deceased struggled on the surface after he was assaulted.

33. The other contention is that as the accused is habituated to using his

right hand, if he used MO.1 for hacking the deceased by standing

opposite direction, certainly injury would have been caused on the left

side, but not on the right side. The said submission is also considered

by the trial court. The evidence of PW.2 shows that the accused used

MO.1 with his left hand, so the injury found on the deceased could

have been caused on the right side neck on the deceased only, but not Page No.18 Crl.Appeal No. 322 of 2013

the left side. The trial court observed that admittedly the accused is

plucking the coconuts to eking out his livelihood. Generally, some of

the coconut pluckers are ambidextrous in plucking coconuts, but it is

unknown whether the accused is ambidextrous or not. The trial court

has considered evidence of PW.2 and observed that the accused used

his left hand to hack the deceased and PWs.1 and 2. After considering

the same, the trial court observed that the accused is a left-hand user,

so the inside wound found on the right side neck of the deceased was

caused by the accused by MO.1 by standing in the opposite direction.

Though the defence has tried to establish that there is no such

possibility, even during Section 313 Cr.P.C., the examination accused

has not submitted anything in the said context.

34. It is the evidence of PW.1 that the accused hacked her with a knife on

her right shoulder, forearm, her right side cheek, and on her knuckles

of the hand and also hacked PW.2 on the right side thigh region. It is

pertinent to note that the accused has not disputed sustaining

injuries to PWs.1 and 2. Coming to the evidence of PW.2, he also

stated that on 21.09.2010 at 07.00 PM, the accused abused them in

filthy language by referring to their mother's name and while coming

towards their house. At that time, he, the deceased and PW.1 went

against the accused; when PW.1 and the deceased questioned the

accused about abuses, the accused took out knife from behind and

hacked the deceased on the right side neck of the deceased. When

PW.1 came to rescue the deceased, the accused hacked PW.1 on her

hand, face and also her right-hand knuckles. PW.2 also stated that Page No.19 Crl.Appeal No. 322 of 2013

the accused also hacked on his right cheek. When they raised cries,

the neighbours rushed to the scene of offence. On seeing them, the

accused ran away from the scene of offence. The evidence of PWs.1

and 2 about their sustaining injuries finds support from the evidence

of PW.11, who worked as a Civil Assistant Surgeon in CHC, Razole.

35. PW.11 stated that PW.2 was admitted to CHC, Razole on 21.09.2010

at about 09.00 PM with an alleged history of an attempt to murder on

21.09.2010 at 07.30 PM at his residence by a known person, on

examination of PW.2, he found a laceration of 4 x 3 cm located on

right hip region. To that effect he issued Ex.P8 wound certificate.

PW.11 is of the opinion that the said injury is simple and could have

been caused by like MO.1. The evidence of PW.11 shows that on the

same day at about 09.00 PM, PW.1 was admitted to CHC hospital with

an alleged history of the attempt to murder on 21.09.2010 at about

07.30 PM at her residence by a known person. On examination, he

found the following injuries

1) Right avulsion fracture on the upper part of the humerus,

2) Laceration of 3 x 2 cm on the right upper arm,

3) 3 x 2 cm laceration over right cheek and

4) 2 x 1 cm laceration over the dorsal aspect of the right arm.

PW.11 further deposed that he issued Ex.P9 wound certificate,

and he is of the opinion that a sharp object like MO.1.the could have

caused the injuries. The defence has not disputed the prosecution's

case concerning sustaining injuries by PWs.1 and 2. The prosecution Page No.20 Crl.Appeal No. 322 of 2013

also examined PW.3, the other brother of PW.2, who deposed that on

21.09.2010, he went to coolie work and returned home between 07.30

to 07.45 PM ; on the way, he saw the deceased in a pool of blood near

an electrical pole on the canal bund gravel road at a distance of 50

yards away from his house. Then he enquired PWs.1 and 2 what

happened to the deceased. He also saw blood injuries on the right side

neck of the deceased, on the right shoulder, right forearm, and right

cheek of PW.1 and bleeding injury found on the right hip of PW.2.

PWs.1, 2 were shifted to Razole Government Hospital in 108

Ambulance. The evidence of PW.3 corroborates the evidence of PWs.1

and 2 that they also sustained injuries in the incident. It elicited in

PW.3's cross-examination that the neighbours at the scene of the

offence shifted and followed PWs.1 and 2 to the hospital. Even

according to PW.3, he did not witness the incident. Based on the

evidence of PW.3, it is somewhat difficult to conclude that the incident

was witnessed by neighbours.

36. Coming to the evidence of PW.4, the daughter-in-law of PW.1, she

stated that on 21.09.2010 at about 07.00 PM, the accused came to

canal bund gravel road and hurled the abuses against the deceased.

She heard the abuses against her family members, and at that time,

PWs.1, 2 and LW.3 and the deceased were present in their house. On

hearing the abuses, PWs.1, 2 and the deceased went towards the

accused and questioned why he was abusing them. On hearing the

cries, while she was going to the scene of the offence, PW.2 came Page No.21 Crl.Appeal No. 322 of 2013

against her as he was being chased by the accused armed with a knife

and hacked on the right hip, saying that he would also kill him like

the deceased. She further deposed that neighbours came to the scene

of the offence; meanwhile, PW.3 came from coolie work. However, it is

suggested to PW.4 in the cross-examination that she had not stated

before the police on hearing of cries while she was going to the scene

of offence PW.2 came against her on being chased by the accused

armed with a knife. In this regard, PW.14 also stated in cross-

examination that PW.4 had not stated such a version before him. The

evidence of PW.4 is consistent with regard to the hearing of abuses by

the accused and going of PWs.1, 2 and 4 towards the accused and

questioning him. The evidence of PW.5 shows that on the day of the

incident, he returned home from coolie work. While in the house, he

heard shouts of the accused from the side of the canal bund and he

rushed to there. By then, the accused had hacked the deceased on the

right side of the neck. In his presence, the accused hacked PW.1 on

the right side shoulder, forehand, right side cheek and right hip of

PW.2. PW.5 evidence shows that the deceased and association

members caught the accused and brought before him. The evidence of

PWs.4 and 5 shows that they reached the scene of offence on hearing

cries and they saw the accused hacking PWs.1 and 2 with MO.1. The

evidence of PW.5 shows that the scene of offence is at a distance of 50

yards away to his house and the said fact is also not disputed.

37. In sum and substance, it is vehemently urged that though the offence

is said to have taken place in a residential locality, no independent Page No.22 Crl.Appeal No. 322 of 2013

witness is examined to prove the offence except the deceased's family.

It has been succinctly laid down by the Apex Court "In Namdeo v. the

State of Maharashtra2, the Apex Court observed that "a witness who

is a relative of deceased or victim of the crime cannot be characterized

as 'interested'. The term "interested" postulates that the witness has

some direct or indirect "interest" in having the accused somehow or the

other convicted due to animus or for some other oblique motive. The

Apex Court also observed that a close relative could not be

characterized as an 'interested' witness. He is a 'natural' witness. His

evidence, however, must be scrutinized. If his evidence is found to be

intrinsically reliable, inherently probable and wholly trustworthy, under

such scrutiny, the conviction can be based testimony of such witnesses.

The close relationship of the witness with the deceased or victim is no

grounds to reject his evidence. On the contrary, close relatives of the

deceased would usually be most reluctant to spare the real culprit and

falsely implicate an innocent one".

38. It is suggested that it is the defence version that a false case is foisted

against the accused because of the previous hostility regarding the

eve-teasing of the daughter of the accused. However, PWs.1 to 5

denied the said suggestion. This Court views that if the ryots attacked

the deceased, it is difficult to believe the foisting of the case against

the accused by leaving the real culprits. In support of the said

suggestion, it needs to be noted that the defence has not placed any

evidence nor suggested the names of the ryots who inflicted injuries

2007 AIR SCW 1835 Page No.23 Crl.Appeal No. 322 of 2013

on PWs.1, 2 and the deceased. It is also suggested to PWs.1, 2 and 5

that the deceased, LWs.10 and 12, used to misbehave with the

accused's elder daughter. The accused has not placed any material to

substantiate the said case. The accused did not choose to examine her

daughter. In the absence of such evidence, it isn't easy to accept the

same.

39. In the grounds of appeal and during the hearing, it is contended that

the accused is a blind person, so he could not have attacked the

deceased in the manner spoken by the prosecution witnesses. It is the

consistent version of PW.1 and other witnesses that the occupation of

the accused is plucking the coconuts. The defence tried to elicit

through the cross-examination of PW.5 that the accused is a blind

person. In the cross-examination, PW.5 stated that the accused could

see with his two eyes. The trial court observed in its Judgment that

the accused summoned nearer to the witnesses and the bench. The

trial court observed that the left eye of the accused is like a squint.

PW.5 stated in his evidence that he does not know whether the

accused's left eye is visible. From the suggestions put to PW.5 in the

cross-examination, it can see that during the time of trial, the accused

had taken a plea that his left eye was not visible, and it is not

suggested to PWs.1 to 5 that the accused is blind and he could not do

any act. The occupation of the accused is not at all disputed during

the cross-examination of PWs.1 and 5. Now the defence has changed

its version by contending that the accused is blind. However, the Page No.24 Crl.Appeal No. 322 of 2013

accused had taken a stand that his left eye was not visible during the

trial. We do not find a flaw in the trial court's reasoning.

40. The defence that needs to be stated here is that during Section 313

Cr.P.C. examination, the accused did not whisper that vision of his

left eye is not completely visible and that his right eye has poor vision.

So that he could not have murdered the deceased, and the accused

has also not produced any evidence to substantiate the said plea. But

he filed Crl.MP.No.18 of 2013 under Section 45 of the Evidence Act

requesting to send him to an Ophthalmologist for testification of his

vision. The trial court observed that the accused's his left eye was

squinted. In contrast, his right eye sees the object and further

observes that the accused has been plucking the coconuts with sharp-

edged weapons, and if his vision is poor, he will cut off his hands

being used for plucking the coconuts. Therefore, the accused is not

blind and further observed that his right eye sees things. After

marshalling evidence on record, the learned trial judge has negatived

the defence's contention. Thus the stand of the appellants falls flat.

41. Moreover, the evidence of PW.9 - VRO shows that on 22.09.2010 at

about 04.00 or 04.30 PM, he and LW.17 were summoned to the police

station. They were taken in a jeep to the house of the accused, and

when they were going to the house of the accused, on the way, the

police noticed hiding of a person in the coconut garden of Thota Vijaya

Kumar. On seeing the police party, when that person tried to run from

there, the police caught him and enquired about the identity

particulars of that person. He disclosed his identity particulars as Page No.25 Crl.Appeal No. 322 of 2013

Kaligitha Sekhar. PW.9 identified the accused as the person caught

hold by the police when he tried to escape from the coconut garden of

Thota Vijaya Kumar. Then the police interrogated the accused, who

gave his confessional statement, and PW.9 reduced the same into

writing. During confession, the accused took out the knife from his

waist, which was covered in his lungi and had shown to the police and

the relevant portion is marked as Ex.P5. It is also the evidence of PW.9

that the police seized MO.1 in his and LW.17's presence and also

seized blood stained sky blue colour black stripes lungi and blood

stained sky blue colour half hands shirt of the accused. In the cross-

examination, he denied the suggestion that the accused did not take

out MO.1 knife from his lungi. Thus it is the case of the prosecution

that the police seized MO.1 from the possession of the accused on his

confession before PW.9. Though PW.9 was cross-examined at length,

nothing is elicited to discredit his evidence.

42. A perusal of Ex.P1 statement shows that all the particulars of the

commission of offence were given by PW.1. It is also mentioned that

when PW.1 and her third son went to the scene of the offence, and

there the accused hacked on her right shoulder indiscriminately and

also hacked on the right side back of PW.1's third son Rajesh. He also

proclaimed that they would also be finished this day. It is also alleged

that at about 07.00 PM, the accused abused loudly, "you bastard to

come out of your house, I will kill all of you this day". It is also alleged

that the accused suddenly hacked with the knife, which is used to

pluck coconuts brought with him on the right side neck of the Page No.26 Crl.Appeal No. 322 of 2013

deceased. The evidence of PWs.1 and 2 inspires confidence. Though

the defence made a lengthy cross-examination, but nothing could be

elicited from the testimony of witnesses. The statement of PW.1 is

recorded immediately after her admission to the hospital; she did not

have any deliberation and false implication of appellant/accused in

the crime.

43. As already observed, within two hours of the incident, a report came

to be lodged, .unless an incident in question happened in the presence

of PW.1, it is impossible to submit the report with such minute details

about the commission of the offence.

44. We believe that FIR is prompt, and there are no chances for

concoction. Nothing on record suggests that after the occurrence,

some deliberations occurred to implicate the accused in this case. One

thing remains certain lodging the first information report within a

short time after the occurrence would ordinarily lead to a conclusion

that the statements made therein are correct. Nothing in the cross-

examination of PWs.1, 2 and 5 may suggest that the witnesses were

either telling a lie or were not present at the scene of the offence. In

the FIR, the role played by the accused is narrated. The version of

Pws.1 and 2 is fully corroborated by the medical evidence produced

before the Court. It is not the number of witnesses but the quality of

the evidence required to be taken note of by the Court to ascertain the

truth of the allegations against the accused.

45. This Court is also required to consider that she sustained injuries at

the scene of the offence when she went to rescue her son. Nothing is Page No.27 Crl.Appeal No. 322 of 2013

brought on record either in cross-examination of witnesses concerned

or the defence failed to show any good reason as to why they should

falsely implicate the accused. The defence is not justified in requesting

the Court to reject their testimony as they are interested witnesses.

The fact of the relationship would add to the value of their evidence

because they would be interested in getting the real culprit rather

than an innocent person punished. The evidence of PWs.1 and 2 is

supported by medical evidence. The medical evidence establishes that

PWs.1 and 2 sustained injuries in the incident. They have also

deposed about the motive of the crime. The statement was promptly

recorded in the hospital without any delay. All the material particulars

relating to the offence, including motive, were mentioned in the

statement. The postmortem report fully corroborates the eyewitness's

account. The weapon of assault was also recovered. RFSL report

shows that human blood was found on the material object.

46. We repeat at the cost of repetition that the presence of PWs.1 and 2 is

quite natural, as the incident took place 50 meters from their house.

Only on hearing the shouts of accused PWs.1, 2 and the deceased

came out from their house and questioned him. PWs.1 and 2 are

injured in the incident in question. Their evidence is reliable, and they

are natural witnesses. On behalf of the appellant, it has been argued

that because of the admitted grouse, the prosecution witnesses had

the motive to distort the witness. The enmity of eyewitnesses with the

accused cannot be a ground to reject their testimony outright. The

evidence of PWs.1 to 5 is consistent, convincing and trustworthy, and Page No.28 Crl.Appeal No. 322 of 2013

they were subjected to thorough cross-examination. They have been

corroborated by each other, so their evidence is consistent. The

availability of independent witnesses in all circumstances is not

possible. The offence is committed in the presence of the family

members near the house of PWs.1 to 3, as observed above. It is not

the case of the prosecution that the incident in question was

witnessed by independent persons.

47. In the cross-examination of PWs.1 and 2, no contradictions have been

brought on record in their evidence. PWs.1 and 2 consistently

supported the prosecution case in all material particulars in their

statement before the police, and the witnesses withstood the ordeal of

cross-examination about the incident in question. The testimonies of

injured witnesses have their relevancy and efficacy. The fact that

PWs.1 and 2 sustained injuries at the time and place of occurrence

lend support to their testimony that they were present during the

occurrence. What emerges from the above discussion and analysis of

supra is that prosecution had proved the case that the accused had

attacked the deceased and caused his death and injuries to PWs.1

and 2, who went to rescue the deceased. The appellant has been

found guilty of causing of death of the deceased. The vital question is

whether the accused's act proves culpable homicide amounts to

murder or not.

48. Learned counsel for the convict/appellant has also submitted that if

this Court is not inclined to interfere with the trial Court's finding, Page No.29 Crl.Appeal No. 322 of 2013

this Court may consider convicting the appellant and sentencing him

under Part II of Section 304 IPC.

49. It would be appropriate to extract the Section 304 IPC, which reads as

follows:-

Sec.304 IPC. Punishment for culpable homicide not amounting to murder.-

Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine if the act by which the death is caused is done to cause death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

50. We will advert to refer the decision in K.M.Nanavati v. State of

Maharashtra.3 The Apex Court has laid down the following principles

regarding Exception 1 to Section 300 IPC.

1. The test of sudden grave provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in a situation in which the accused was placed, would be provoked as to lose his self-control.

2. In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused to bring his act with the first Exception of Section 300 IPC.

3. The mental background created by the previous act of the victim may be taken into consideration in ascertaining

AIR 1962 SC 605 Page No.30 Crl.Appeal No. 322 of 2013

whether the subsequent action caused grave and sudden provocation for committing the offence.

4. The fatal blow should be traced to the influence of passion arising from that provocation and not after the passion has cooled down by lapse of time or otherwise giving room and scope for premeditation and calculation".

51. No doubt, even in the heat of the moment or fit of anger, one

should not attack somebody since human beings are expected to

have the power of self-control. Nevertheless, the fact remains that

in the heat of the moment and a fit of anger, people sometimes do

acts which may not have been done after premeditation. Hence

the law provides that while those who commit acts in the heat of

the moment or fit of anger should also be punished, their

punishment should be lesser than that of premeditated offences.

It is for this reason that Exceptions I and 4 have been inserted in

Section 300 IPC.

For better appreciation, we reproduce exceptions 1 and 4 to Sec.300 IPC.

Exception 1: When culpable homicide is not murder.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or caused the death of any other person by mistake or accident.

Exception 4: Culpable homicide is not murdered if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner".

Page No.31 Crl.Appeal No. 322 of 2013

52. In Camilo Vaz vs State of Goa4, referring to the ambit of Section 304 of the Code, this Court, in a similar set of circumstances, held thus:

"This section is in two parts. If analyzed, the section provides for two kinds of punishment for two different situations. (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here important ingredient is the "intention"; (2) if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on a vital part of the body with such a force that the person hit meets his death, knowledge has to be imputed to the accused. In that situ- ation case will fall in part II of Section 304 IPC as in the present case."

53. In the case on hand, significant features must consider. The evidence

on record shows that on 21.09.2010 at about 07.00 AM, the accused

was present at the culvert and started abusing the sons of PW.1

without any reason. It is pertinent to note that the accused took out a

knife from his backside waist and hacked the right side neck of the

deceased. As noted herein above, when PWs.1 and 2 went to rescue

the deceased, the accused also hacked them with a knife, and he ran

away from there with a knife on seeing the arrival of neighbours.

54. It cannot be laid down as a rule of universal application that whenever

one blow is given, Section 302 IPC is ruled out. It would depend upon

the weapon used, its size, the force with which the blow was given, the

body part it was given and several such relevant factors. The evidence

(2000) 9 SCC 1 Page No.32 Crl.Appeal No. 322 of 2013

on record shows that the injury caused by the accused resulted in the

instantaneous death of the deceased.

55. If there was any provocation on the part of the accused, it was self-

made, and the act of the accused was not due to sudden provocation.

Based on the material on record, it is highly difficult to come to a

conclusion that there was a quarrel between the accused and

deceased, PWs.1 and 2. The material on record does not suggest that

as a result of the quarrel, on the spur of the movement, the appellant

attacked the deceased with a knife. There is nothing on record to

suggest that the accused caused the death of the deceased in the heat

of passion. The intention of a person has to be gathered from his acts,

as indeed there is no other measure of ascertaining the same. We are

of opinion that while appreciating the evidence brought on record by

the prosecution total evidence has to be appreciated in its entirety. It

transpires from the record that there was premeditation and the

accused had been carrying a knife with the intention to attack the

deceased. On seeing the arrival of PWs.1, 2 and the deceased from the

fields to their house at 07.00 PM and the accused, who was present at

the culvert and started abusing them, referred to the name of PW.1 in

a most offensive language. When PW.2 and the deceased questioned

the accused, he took a knife from his backside waist and hacked at

the deceased. When PWs.1 and 2 came to rescue the deceased, the

accused threatened to kill them like the deceased. It may not be out of

place to mention here that the sequence of events makes it clear that

the accused had pre-plan or premeditated to cause the deceased's Page No.33 Crl.Appeal No. 322 of 2013

death. After hacking the deceased with a knife, it is also pertinent to

note that he attacked PWs.1 and 2 with a knife, who came to rescue

the deceased. They also sustained injuries at the hands of the accused

and got admitted to the hospital CHC, Razole. On medical intimation,

police came to the hospital and recorded the statement of PW.1. In the

facts of the case, the accused can be imputed to cause the deceased's

death. At this stage, we may profitably refer to the decision in

Pulicherla Nagaraju vs State of A.P. 5 , "the Apex Court held that

"whether there was an intention to cause death is to be gathered from

several circumstances, and one of the circumstances mentioned in the

said paragraph is whether the weapon was carried by the accused or

was picked up from the spot. If it was carried by the accused right from

the beginning, that might be a circumstance to indicate that there was

an intention to cause death if it was used for attacking the deceased on

a vital part of the body.

56. It is difficult to accept the submission that it was a case of sudden

quarrel, and the deceased was assaulted on the spur of the

movement. The motive of the crime is established through PW.5.

Nothing is brought in the cross-examination of PWs.1 to 5 to show

that they have deposed falsely against the accused with any definite

motive. There is nothing to indicate that PW.5 had any animosity to

speak falsehood against the accused. It was obvious from the reading

of his deposition; it is clear that he is a very natural and reliable

witness.

    2006 (11) SCC 444
 Page No.34                                                 Crl.Appeal No. 322 of 2013

57. On a conspectus of various relevant features of this case, including

the genesis; the nature of the incident; the nature of injury caused by

the accused-appellant at the point of occurrence, it cannot be

concluded from the prosecution evidence or from any probability

arising from the record that the accused-appellant had falsely been

implicated in this case. After going through the same, we do not find

any reason to disbelieve the version of the prosecution witnesses. The

material on record establishes that the accused intended to cause the

death of the deceased or caused such injuries which were sufficient to

cause his death in the ordinary course of nature, to cause death. On

the consideration of the totality of facts, we are completely in

agreement with the findings recorded by the trial Court. We find that

the prosecution has established the case beyond a reasonable doubt.

58. After analyzing the evidence on record, we hold that the prosecution

has established the guilt beyond reasonable doubt against the

accused-appellant. We find that the learned trial Court has rightly

convicted and sentenced the accused-appellant, and there is no

infirmity in the impugned Judgment and order passed by the learned

trial Court. Upon re-appreciating the entire prosecution case, we are

of the opinion that no error is committed by the learned trial court in

arriving at a conclusion, thereby convicting the accused for the

offences punishable under Sections 302, 326 and 324 IPC, which is

impugned in the appeal. The accused-appellant is liable to be

convicted and sentenced as awarded by the trial Court. Hence, the

appeal is liable to be dismissed.

Page No.35 Crl.Appeal No. 322 of 2013

59. Accordingly, the appeal is dismissed, confirming the conviction and

sentence imposed against the accused in SC.No.45 of 2011, vide

Judgment dated 20.03.2013, on the file of II Additional District and

Sessions Judge, Amalapuram. The appellant shall get the benefit of

set-off in terms of Section 428 Cr.P.C., out of a period of

imprisonment already undergone.

60. We hereby direct the Registry to supply a copy of the Judgment to the

appellant/accused through the concerned, upon which the

appellant/accused shall surrender before the trial court within a

month. In default, the trial court shall take appropriate steps against

the appellant/accused for execution of the sentence, in accordance

with law.

61. Consequently, miscellaneous applications, if any, in this appeal

shall stand closed.

__________________ M.GANGA RAO, J Dt.06.01.2023.

BV/KGM ___________________________ T.MALLIKARJUNA RAO, J