Andhra Pradesh High Court - Amravati
Nadupuri Laxmana Another vs The State Of A.P. on 2 March, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.365 OF 2011
JUDGMENT:-
This Criminal Appeal is filed by the appellant Nos.1 and 2,
who were A.1 and A.2 in Sessions Case No.62 of 2008, on the
file of Sessions Judge, Vizianagaram, challenging the judgment,
dated 23.03.2011, where under the learned Sessions Judge,
found A.1 guilty of the offence under Section 304 Part II of
I.P.C. and A.2 guilty of the offence under Section 304 Part II r/w
34 of I.P.C. as against the original charge under Section 302 and
302 r/w 34 of I.P.C. against A.1 and A.2 respectively. Further,
the learned Sessions Judge, found A.1 guilty of the offence
under Section 307 of I.P.C. and A.2 guilty of the offence under
Section 307 r/w 34 of I.P.C. The learned Sessions Judge
sentenced them to suffer rigorous imprisonment for six years
each and to pay fine of Rs.500/- each in default to suffer simple
imprisonment for three months each for the offence under
Section 304 Part II and 304 Part II r/w 34 of I.P.C. respectively
and further sentenced them to suffer rigorous imprisonment for
two years each and to pay fine of Rs.200/- each for the offence
under Section 307 and 307 r/w 34 of I.P.C. respectively.
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2) The parties to this Criminal Appeal will hereinafter
be referred as described before the trial Court for the sake of
convenience.
3) The Sessions Case No.62 of 2008 arose out of
committal order in P.R.C.No.8 of 2008, on the file of Additional
Judicial Magistrate of First Class, Vizianagaram, pertaining to
Crime No.153 of 2007 of Bhogapuram Police Station.
4) The case of the prosecution, in brief, according to
the charge sheet filed by the State, represented by Inspector of
Police, Bhogapuram Circle, is as follows:
(i) A.1 and A.2 are the residents of Chakivalasa village.
A.1 is the younger brother of A.2. One Kalyanapu Satyavathi
(hereinafter will be referred to as "deceased") is also resident of
Chakivalasa village, who is the sister of A.1 and A.2. Her
husband, L.W.7-Kalyanapu Narayana, was brought to
Chakivalasa as Illarikam son-in-law. She has two daughters
i.e., L.W.2-Nadupuri Rajeswari and L.W.4-Kalyanapu
Rajayalakshmi. L.W.2 was given in marriage to another younger
brother of accused. They are all staying in Chakivalasa village.
Accused developed grudge against the deceased on the ground
that she is claiming equal share in their family properties and
that their mother i.e., L.W.3-Nadupuri Pydamma is supporting
the cause of deceased. Several times accused developed hatred
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against the deceased. One month prior to the occurrence, A.1
and A.2 entered into agreement with L.W.11-Gorli Srinivasa Rao
to sell away 12 ½ cents of ancestral land and received
Rs.30,000/- as advance. Deceased raised a panchayat in that
connection before the Sarpanch L.W.5-Lenka Ramunaidu.
(ii) On 27.12.2007 at 12-00 noon accused started abusing
the deceased. At that time, the husband of the deceased i.e.,
L.W.7 intervened and scolded the accused as to why they are
abusing the old woman i.e., L.W.3 unnecessarily. Then, A.2
beat L.W.7 on his head with a hoe (Boriga) to kill him. When
A.2 raised again the hoe to beat L.W.7, he raised his left hand to
ward of the blow which landed on it. He received bleeding injury
on both his head and left arm. A.1 beat L.W.7 with hands.
Then, L.W.2 rushed to the scene to rescue her father. A.2
wanted to give a blow with a hoe on the shoulder of L.W.2, but
she successfully ducked the same. Then, the deceased rushed to
the spot raising cries. Then, A.2 made an attempt to blow on her
back and the deceased started running towards the thatched
shed of Nadupuru Satyam. Accused did not keep quiet and
chased her. A.1 caught hold of the deceased and shouted that
unless she is killed they cannot regain their properly and
instigated A.2 by crying Veyyara. Then, A.2 beat the deceased
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with hoe (Boriga) on the head of the deceased, who collapsed
due to the head injury on the spot and died there.
(iii) On receiving information about the incident, the
V.R.O., proceeded to the spot, recorded the statement of L.W.2
and handed over the same along with his report to the Sub-
Inspector of Police, Bhogapuram. The Sub-Inspector of Police,
Bhogapuram, gave endorsement to L.W.26-Ch. Appa Rao, Asst.
Sub-Inspector of Police, Bhogapuram to register it as F.I.R.
Accordingly, the A.S.I. registered it as a case in Crime No.153 of
2007 under Section 302, 307 r/w 34 of I.P.C. L.W.5 telephoned
for 108 Ambulance and sent L.W.7 injured to the hospital.
(iv) On 30.12.2007 at 2-00 p.m., the Inspector of Police,
Bhogapuram, visited the scene of offence and got it
photographed and seized blood stained earth and controlled
earth. Accused were absconding after the commission of
offence. On 30.12.2007 at 3-00 p.m., the Inspector of Police,
Bhogapuram, found the accused on N.H.5 road at Rajapulova
junction. On seeing the police, they started running. Police
could catch hold of them and interrogated them. In pursuance of
the disclosure statement made by A.1 and A.2, the weapon of
offence was seized on tank bund which is at a distance of 100
meters to the junction on the road leading from GLM city to
Gudepuvalasa out of the bushes. Further, the blood stained
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clothes of A.1 and A.2 were also seized. Accused were forwarded
for remand. Dr. G. Veena Murthy conducted postmortem
examination over the dead body of the deceased and opined
that the deceased died of ante mortem injuries. Dr. Visweswara
Rao found two injuries on L.W.7 as simple in nature. Hence, the
charge sheet.
5) The learned Additional Judicial Magistrate of First
Class, Vizianagaram, took cognizance of the case and after
complying the formalities under Section 207 of the Code of
Criminal Procedure ("Cr.P.C." for short) and as it appeared that
the case is exclusively triable by the Court of Sessions, by virtue
of a committal order in P.R.C.No.8 of 2008, committed the case
to the Court of Sessions. The learned Sessions Judge,
Vizianagaram, after numbering the same as Sessions Case
No.62 of 2008 and after appearance of accused framed charges
under Sections 302 and 307 of I.P.C. against A.1 and charges
under Sections 302 r/w 34 of I.P.C. and 307 r/w 34 of I.P.C.
against A.2 and explained to them in Telugu for which they
pleaded not guilty and claimed to be tried.
6) In order to bring home the guilt against the accused,
the prosecution, during the course of trial, examined P.W.1 to
P.W.15 and got marked Ex.P.1 to Ex.P.16 and Ex.C.1 and
further got marked M.O.1 to M.O.7. According to the appendix
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of evidence, Ex.P.7 and Ex.P.8 are not inexistence. In other
words Ex.P.1 to Ex.P.6 and Ex.P.9 to Ex.P.16 and Ex.C.1 and
Ex.P.7 and Ex.P.8 were only marked. Thinking that already there
were Ex.P.1 to Ex.P.8 instead of Ex.P.1 to Ex.P.6, the Court
below proceeded to mark from Ex.P.9 to Ex.P.16, as such, there
were no Exhibits under Ex.P.7 and Ex.P.8.
7) After closure of the evidence of prosecution, accused
were examined under Section 313 of Cr.P.C. with reference to
the incriminating circumstances appearing in the evidence let in
by the prosecution, for which they denied the same except the
relationship with the deceased. A.1 put forth a version that
when he and his mother were talking, P.W.5 tried to beat him
and then he escaped and then the blow fell on his sister and she
died. A.1 further stated that his brother A.2 was not present at
that time. A.2 stated that he is an innocent person and he was
falsely implicated. Both the accused did not let in any defence
evidence.
8) The learned Sessions Judge, Vizianagaram, on
hearing both sides and on considering the oral as well as
documentary evidence, found A.1 and A.2 guilty of the offence
under Section 304 Part II and 304 Part II r/w 34 of I.P.C.
respectively as against the original charge under Section 302 of
I.P.C. and 302 r/w 34 of I.P.C. and further found them guilty of
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the offence under Section 307 and 307 r/w 34 of I.P.C.
respectively and accordingly, convicted and sentenced them as
above. With regard to the charges under Section 302 of I.P.C.
and 302 r/w 34 of I.P.C. against A.1 and A.2 respectively, the
Court below extended an order of acquittal. Felt aggrieved of the
same, as against the conviction and sentence imposed against
the appellants, they filed the present Criminal Appeal,
challenging the judgment of the trial Court.
9) There is no appeal from the prosecution side
challenging the judgment of the trial Court in convicting the
appellants under Section 304 Part II and 304 Part II r/w 34 of
I.P.C. against A.1 and A.2 respectively, as against the charge
under Section 302 of I.P.C. and 302 r/w 34 of I.P.C.
10) Hence, in deciding this Criminal Appeal, the points
that arise for consideration are as follows:
(1) Whether the prosecution before the Court below
proved that on 27.12.2007 A.1 being instigated by A.2
attacked the deceased by name Kalyanapu Satyavathi on
her head and caused her death?
(2) Whether A.1 on 27.12.2007 attacked P.W.5 being
instigated by A.2, as such, attempted to commit murder of
P.W.5?
(3) Whether there are any grounds to interfere with the
judgment of the learned Sessions Judge, Vizianagaram?
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POINT NOS.1 TO 3:-
11) Sri Saranu Phani Teja, learned counsel, representing
Sri Venkateswara Rao Gudapati, learned counsel appearing for
the appellants, would contend that the judgment of the Court
below is contrary to law, weight of evidence and probabilities of
the case. The evidence adduced by the prosecution by
examining P.W.1, P.W.2 and P.W.5 is not at all convincing.
Their evidence is interested in nature. The evidence of P.W.6 is
also doubtful. There was no injury on the back side of the
deceased, though the overt act was attributed against A.1 and it
is clear from the medical evidence. Merely, because there were
previous disputes with regard to the properties, accused cannot
be convicted. There are discrepancies in the evidence adduced
by the prosecution. The Court below ought to have disbelieved
the case of the prosecution with regard to M.O.1 weapon of
offence. The learned Sessions Judge without proper analysation
of the evidence on record convicted the appellants. The accused
put forth a contention that the deceased received injury when
P.W.5 tried to beat A.1 with M.O.1 in the scuffle, A.1 could
escape and the blow landed on the deceased, as such, the
deceased died. The Court below by not appreciating the
evidence in proper perspective disbelieved the defence theory.
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Hence, there is no convincing evidence before the Court below,
as such, the conviction imposed against the present appellants,
is liable to be set aside.
12) Sri Y. Jagadeeswara Rao, learned counsel,
representing the learned Public Prosecutor, sought to support
the judgment of the learned Sessions Judge, Vizianagaram on
the ground that the learned Sessions Judge on appreciation of
the evidence on record rightly believed the case of the
prosecution. P.W.1, P.W.2 and P.W.5 were the witnesses to the
occurrence. P.W.6 came to know about the occurrence. The
motive for the offence was civil disputes. The learned Sessions
Judge has taken care to analyse the evidence in proper
perspective and ultimately, convicted the accused for the
offence of culpable homicide not amounting to murder with
cogent reasons, as such, the judgment of the Court below is
liable to be confirmed by dismissing the Criminal Appeal.
13) P.W.1 before the Court below is no other than the
defacto-complainant and she is the daughter of the deceased.
P.W.2 is the mother of the deceased. P.W.3 is V.R.O., who
claimed that he recorded the statement of P.W.1 on going to the
scene of offence after coming to know about the murder of the
deceased. The prosecution examined P.W.4 to prove about the
disputes between the accused and deceased. P.W.5 is another
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direct witness to the occurrence and being the husband of
deceased. The prosecution examined P.W.6, who rushed to the
scene of offence on hearing about the incident and according to
the case of prosecution, P.W.5 revealed what all happened to
P.W.6. The prosecution examined P.W.7 to speak about the
dispute between the accused and the deceased. The prosecution
further examined P.W.8 to prove the above aspect. P.W.9 is the
mediator with regard to the observation of the scene of offence.
P.W.10 is the Photographer who took the photos of the dead
body of the deceased. P.W.11 is the inquest panchayatdar, who
supported the case of the prosecution. P.W.12 is the medical
officer, who examined P.W.5 and issued wound certificate. The
prosecution examined P.W.13, who conducted postmortem over
the dead body of the deceased. The prosecution examined
P.W.14, the Sub-Inspector of Police, to speak to the fact that on
hearing about the offence in question, they rushed to the scene
of offence where they received report from P.W.3 along with
statement of P.W.1. P.W.15 is the C.I. of Police, who conducted
investigation in the case.
14) The case of the prosecution is that the direct
witnesses to the occurrence were of P.W.1, P.W.2 and P.W.5.
The prosecution has alleged further that the motive for the
offence was that there were serious disputes between the
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accused family and the deceased with regard to the fact that the
deceased was claiming equal share in the properties of the
family. In that view of the matter, the prosecution examined
P.W.4, P.W.7 and P.W.8.
15) It is to be noticed that P.W.1 spoken to the factum
of the claim of the share by the deceased and the response of
the accused in this regard. The motive for the offence was said
to be firstly, the verbal quarrel prior to the incident. It is a case
where the case of the prosecution rests upon the direct evidence
i.e., the manner of attack by the accused on the deceased. So,
when the case is based upon the direct evidence, the motive for
the offence has no role at all. However, by virtue of the evidence
adduced by the prosecution, the prosecution is able to through
light as to the claiming of share by the deceased in the
properties. There is no dispute about the factum of suit in
O.S.No.168 of 2008, on the file of Senior Civil Judge,
Vizianagaram against the accused filed by P.W.1, P.W.2,
husband of P.W.1, father of P.W.1, sister of P.W.1 and maternal
aunt of P.W.1 against the accused. There is no dispute that the
subject matter of the above is no other than claiming of share.
So, insofar as the disputes cropped up between the deceased
and P.W.1, P.W.2 and P.W.5 at one hand and accused at
another hand, virtually, it is not in dispute.
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16) Therefore, the crux of the issue that has to be seen
by this Court in deciding this appeal is as to whether the
evidence adduced by the prosecution with regard to so-called
attack made on the deceased by A.1 and A.2 is believable or
not.
17) In this regard, the testimony of P.W.1 in substance
is that the incident was occurred on Saturday about one and half
years back, at 12-00 noon, at their Kallam where they are
residing. There she, her father and her mother were present.
Then, L.W.3-Pydamma came to their Kallam. Then, A.1 and A.2
were quarrelling with her grandmother Pydamma. Then, her
father questioned the accused as to why they are disputing and
quarrelling with the old woman. Then, A.1 picked up a Boriga
and beat on the head of her father. Then again A.1 tried to beat
her father and warded off his left hand and he received injury on
his left hand palm. Then, she went there and tried to interfere.
Then, A.1 beat her with Boriga on her left shoulder. Then, her
mother (deceased) tried to interfere and A.1 gave a blow on her
back with Boriga and thereafter, on fear the deceased run away
some distance to escape from the clutches of the accused. A.2
chased her, caught hold of her from back side. Then, A.1 beat
the deceased on her head with the same Boriga. After receipt of
head injury, the deceased fallen down and died at the spot. A.1
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beat on the deceased at the place of cattle shed of Nadupuri
Satyam. After the occurrence, both the accused ran away. After
the incident, so many persons gathered there. She gave
statement before the Village Secretary of their village, who
came to the scene. She signed on it. Ex.P.1 is her statement.
Police examined her and recorded her statement. She and her
father were sent to the Government hospital for treatment for
the injuries received in the incident. She can identify the Boriga
which was used at the time of commission of office. M.O.1 is
the said Boriga.
18) Turning to the testimony of P.W.2 with regard to the
incident in question, she deposed that the deceased was killed
at the house of P.W.1 at 12-00 noon about one and half years
back. Prior to the offence, she (P.W.2) went to the Kallam of
P.W.1. Then, A.1 and A.2 came there and picked up quarrel
with her. L.W.7-Narayana, father of P.W.1, came and interfered
and questioned the act of the accused. A.1 beat L.W.7-Narayana
on his head with Boriga. Again when A.1 tried to beat him, he
warded off with his hand and L.W.7 received injury on his left
hand palm. Then, P.W.1 intervened and A.1 beat her with
Boriga on her back side left shoulder. When the deceased
interfered, A.2 beat her on her back side with hand. Due to fear
of death, she was running. Then A.2 caught hold of her and A.1
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beat with the same Boriga on her head. She received bleeding
injury and died on the spot. Immediately after the incident,
both the accused ran away. She, P.W.1 and L.W.7-Narayana
witnessed the incident. All the villagers came to the spot after
the incident. Village Secretary came to the spot and reported
the matter to the police. Police came to the scene. She can
identify the Boriga used by A.1 and A.2. M.O.1 is the Boriga.
19) Coming to the evidence of P.W.5, his evidence is
that the offence took place about one year and 8 months back
at the cattle shed of Nadupuri Satyam of their village. The
distance between the scene of offence and his house is 50
yards. At the time of offence, he, his daughter and deceased
were at the house. Just prior to the offence, his sister, P.W.2
came there. At that time A.1 and A.2 started quarreling with
P.W.2. He asked the accused as to why they are picking the
quarrel with P.W.2 unnecessarily. A.1 suddenly came and beat
with a Boriga iron portion on his head. He warded off with his
left hand when A.1 again attempted to beat him. Then, he
received injury on his left hand palm. P.W.1 tried to escape him
and then A.1 beat P.W.1 with Boriga on her back side left
shoulder. Then, the deceased i.e., his wife intervened, A.1 beat
his wife with Boriga on her back. Due to fear of death, she
started running towards cattle shed of Nadupuri Satyam. Both
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the accused chased one after another. At the place of cattle
shed of Nadupuri Satyam, A.2 caught hold of the deceased and
A.1 beat the deceased with same Boriga iron sharp edged
portion on her head. The deceased fell on the ground
unconscious and she died on the spot. He, P.W.1 and P.W.2
witnessed the incident throughout. After the incident,
neighbourers gathered there and saw the dead body. He said
the incident to Nadupuri Satyam. Their village President Lenka
Seethamnaidu sent them to the Government hospital for
treatment. His blood stained clothes were handed over to C.I.
of Police. C.I. of Police examined him. After the incident,
accused fled away. He can identify the Boriga, if it is shown to
him. Witness identified M.O.1 Boriga already marked.
20) P.W.3, the Village Revenue Officer, testified that on
27.12.2007
at 12-15 p.m., while he was at panchayat office, he
came to know about the death of the deceased Satyavathi.
Then, he went to the place of occurrence immediately and found
the dead body opposite to Kallam of Nadupuri Satyam. P.W.1,
P.W.2 and L.W.7-Narayana were present. P.W.1 and L.W.7 were
with bleeding injuries. He recorded the statement of P.W.1. He
obtained her signature on Ex.P.1. He also prepared a report
basing on Ex.P.1. Police came to the scene of offence and he
handed over his report along with Ex.P.1 to police. Ex.P.2 is his
report. He further spoken to the fact that he was also present
when the police arrested A.1 and A.2 on 30.12.2007 at 2-30
p.m., and that C.I. of Police interrogated them and according to
the disclosure statement made by A.1 and A.2, weapon of
offence was seized. He further testified the fact that police also
seized blood stained clothes of both the accused. Police affixed
necessary identity slips on the clothes seized from the accused
as well as on Boriga.
21) According to the evidence of P.W.5, he intimated the
incident to P.W.6 and after P.W.6 came there and the evidence
of P.W.6 is that he heard cries from the scene of offence and
rushed there and found P.W.1, P.W.2 and P.W.5 there and they
are crying and P.W.5 told him that A.2 caught hold of the
deceased and A.1 beat her with a Boriga. P.W.5 further stated
that A.1 beat him and P.W.1. He found injuries on the left hand
palm and also found the dead body of the deceased and noticed
injury on the head of the deceased. He accompanied P.W.5 in
the Ambulance to the hospital. He was examined by the police.
22) Firstly, I would like to deal with as to whether there
is consistency with regard to the manner of attack. As seen
from Ex.P.1, it is the statement of P.W.1 recorded by P.W.3, the
concerned V.R.O. Insofar as the overt acts attributed against
A.1 and A.2 and the manner of attack is concerned, Ex.P.1,
statement of P.W.1 runs to the effect that on 29.12.2007 at 12-
00 noon Ramana (A.2) and Laxmana (A.1) was scolding her
maternal grandmother by questioning that as to why she gave
the land to her mother. Then, her father questioned them as to
why they abused her. Then, her uncle Laxmana (A.1) beat her
father on the head with a Borigi and her eldest uncle Ramana
(A.2) beat him with hands. In the meantime, when she
intervened, Laxmana (A.1) beat with Borigi on her left shoulder.
In the meantime, her mother came and when obstructed the
attack, her uncle Laxmana (A.1) beat on the back of her mother
with Bigira. When her mother tried to ran away, her uncles'
chased her and her eldest uncle Laxmana (A.2) caught hold of
her mother and her younger uncle Ramana (A.1) beat with
Boriga on the head of her mother. Her mother's head is broken
and she fell down immediately and died.
23) Now, coming to the testimony of P.W.1 as already
extracted, she testified that A.1 picked up a Boriga and beat on
the head of her father. When again he tried to beat her father,
he warded off his left hand and he received injury on his left
hand palm. When she tried to interfere, A.1 beat her with Boriga
on her left back side shoulder. When her mother tried to
interfere, A.1 gave a blow on her back with Boriga. Then, she
ran away some distance. A.2 chased her, caught hold of her
from back and A.1 beat her on the head with the same Boriga.
After receipt of the head injury, her mother fallen down and died
at the spot.
24) Now, coming to the testimony of P.W.2 and P.W.5,
they have spoken the overt acts on the same lines as that of the
evidence of P.W.1.
25) At the outset, this Court would like to make it clear
that insofar as Ex.P.1 is concerned, there was no whisper that
when A.1 again tried to beat her father, he warded off with his
left hand, as such, he received injury on his left hand palm. It is
to be noticed that the F.I.R. cannot be taken as encyclopedia.
P.W.1, P.W.2 and P.W.5 consistently spoken to the fact that
when A.1 again tried to beat P.W.5, he warded off his left hand,
as such, he received injury on his left hand palm. As seen from
the testimony of P.W.12, he found two injuries on the person of
P.W.5 i.e., a laceration of size 1x1 behind scalp and a laceration
of the size 1x1 on the right hand little finger on palmar side.
So, the fact that P.W.5 received two injuries as spoken by the
prosecution witnesses was supported by the evidence of P.W.12
coupled with Ex.P.12, the wound certificate of P.W.5. Apart
from this, during the course of cross examination of P.W.1,
P.W.2 and P.W.5, nothing was suggested to them that their
evidence attributing second overt act against A.1 as having
beaten P.W.5 and when P.W.5 warded off the attack, he
received injury on the palm was subsequent improvement.
Therefore, virtually, there were no omissions suggested to
P.W.1, P.W.2 and P.W.5 in this regard. Though the second
overt act against A.1 was not there in Ex.P.1 as having attacked
P.W.5 second time, but, it appears that during the course of
investigation, they disclosed the same, as such, they deposed
the same in the Court. So, virtually, the testimony of P.W.1,
P.W.2 and P.W.5 was not challenged before the Court below that
they made any improvements contrary to their statements
during investigation.
26) Turning to the testimony of P.W.1 in cross
examination, she denied that when A.1 and her maternal
grandmother were quarrelling, her mother and her father went
there to beat A.1 and in that scruple, her mother tried to
interfere and received injury in the hands of her father. When
the accused tried to beat L.W.3-Pydamma, her father intervened
and then A.1 beat him. She denied that A.2 did not catch hold
of her mother.
27) Turning to the testimony of P.W.2 in cross
examination, she deposed that "it is true that on that day A.1
took her away to his house and tried to beat her. It is true that
she herself and A.1 were quarrelling with each other in the
house of A.1. It is true that when she and A.1 were quarrelling
with each other, L.W.7-Narayana came to the house of A.1 and
scolded A.1 why he was abusing her. It is true that L.W.7-
Narayana tried to beat A.1. Then P.W.1 came there. She denied
a suggestion that when L.W.7-Narayana tried to beat A.1 then
her daughter tried to interfere. She denied that A.1 did not beat
the deceased and A.2 was not there at the scene of offence and
he arrived to the scene only after the incident."
28) During the course of cross examination, P.W.5
denied that M.O.1 belonged to him and when he tried to beat
A.1 with M.O.1, A.1 escaped and the blow reached the deceased
and that is the cause of the death of the deceased. He denied
that A.2 was not present at the time of offence at the scene and
he did not participate in the crime.
29) As seen from the cross examination part of P.W.1,
P.W.2 and P.W.5, absolutely, no discrepancies, omissions or
contradictions are elicited to disbelieve their testimony. The
defence of the accused is that when P.W.5 tried to beat A.1 in
the quarrel, the blow fallen on the head of the deceased, as
such, the deceased died. If that be the case and when the
deceased was no other than the sister of A.1 and A.2, their
natural reaction after the alleged incident according to their
defence would have been something different. If really the
defence was true, they would have questioned P.W.5 for killing
their own sister and would have rushed to the police station to
lodge a report against P.W.5. Therefore, in my considered view,
the so-called defence of A.1 and A.2 is absolutely not tenable.
Apart from this, there is no explanation whatsoever from the
mouth of the accused by suggesting theory as to the manner in
which P.W.5 received injuries. So, P.W.5 was an injured witness,
who witnessed the occurrence and whose evidence is consistent
with the contents of Ex.P.1 and further the evidence of P.W.1
and P.W.2. Hence, the accused miserably failed to probabalise
the theory that when P.W.5 tried to beat A.1, the blow landed
on the head of the deceased. As regards the contention that A.2
was not present at the scene at the time of incident and later he
came to the scene it is also not tenable as the role attributed
against A.2 was clearly mentioned in Ex.P.1, which was hardly
within 15 minutes after the occurrence and further the role
played by A.2 was categorically spoken by P.W.1, P.W.2 and
P.W.5. Insofar as the manner of attack and overt acts attributed
against A.1 and A.2 is concerned, I am of the considered view
that the evidence adduced by the prosecution is fully convincing.
30) Another line of defence of the accused before the
Court below is that there were no injuries on the person of
P.W.1 though she claimed that she received an injury on the left
side shoulder. It is to be noticed that the charges that were
framed before the Court below was not relating to the so-called
injury caused to her at the time of attack. In this regard, the
evidence of P.W.16, the investigating officer in cross
examination is that he did not send P.W.1 to Government
hospital for treatment, as she received minor injuries. So, when
P.W.1 was not referred to the Government hospital, absolutely,
there would not have been any occasion for the prosecution to
adduce medical evidence with regard to so-called injuries
received by P.W.1. Under the circumstances, the fact that the
prosecution did not prove any injuries on the person of P.W.1
would not destroy the case of the prosecution.
31) Apart from the above, the case of the prosecution is
that when the deceased intervened in the incident, A.1 dealt a
blow on her back with Boriga and then she ran away to rescue
herself. Admittedly, the evidence of P.W.13 coupled with
Ex.C.1, the postmortem report, does not disclose any injury on
the back of the deceased. Admittedly, in cross examination,
P.W.13 deposed that except injury on head, he did not find any
external injuries and he did not find any injury on the back
caused due to Boriga. He deposed that if blows were given on
the back, definitely, there would be injuries on the back. It is to
be noticed that the allegations in the charge sheet were that
when A.1 tried to give a blow to the deceased on the back, she
ran away. It is really doubtful whether the deceased received
any injury on the back or not. However, there is no dispute that
the cause of death in view of the evidence of P.W.13 coupled
with Ex.C.1 is external injury on the head. Under the
circumstances, failure on the part of the prosecution to prove
the injury on the back side of the deceased is not fatal to the
case of the prosecution.
32) The substratum of the case of the prosecution is in
no way affected for the absence of injuries on the person of
P.W.1 and absence of injury on the back of the deceased. The
presence of A.1 at the scene of offence was not in dispute.
Though A.2 disputed his presence at the scene i.e., actual time
of attack, his defence was that he rushed to the scene after the
incident. Here, this Court has no reason to disbelieve the
testimony of P.W.1, P.W.2 and P.W.5 with regard to the
presence of A.1 and A.2 at the scene of offence in the light of
the detailed role spoken to by P.W.1, P.W.2 and P.W.5, in the
manner of attack against the deceased.
33) As seen from the evidence of P.W.1, P.W.2 and
P.W.5, the time of occurrence was 12-00 noon. Within 15
minutes, P.W.3 on hearing the incident could rush to the scene
of offence and recorded the statement of P.W.1. Later, he
prepared Ex.P.2 and submitted the same to the Sub-Inspector of
Police. So, there was no delay in registration of F.I.R. soon after
receipt of Ex.P.1 and Ex.P.2 from P.W.3 by the police.
34) Turning to the evidence of P.W.3 coupled with the
evidence of P.W.16, the investigating officer, prosecution has
further proved categorically about the arrest of A.1 and A.2 and
pursuant to their disclosure, investigating officer seized M.O.1
weapon of offence and the clothes of the accused. There
remained nothing in the evidence of P.W.3 and P.W.16 to
disbelieve the theory. The cogent evidence adduced by the
prosecution with regard to the recovery of M.O.1 further
negatived the contention of the accused that M.O.1 belonged to
P.W.5. Throughout the natural reaction of accused if really the
deceased died due to act of P.W.5 in the scuffle would have
been different. The prosecution categorically proved by virtue of
the evidence of P.W.1, P.W.2, P.W.5 and P.W.16, the
investigating officer, that immediately after committing the
offence, both the accused fled away from the scene of offence.
It proves that their defence is nothing but a false.
35) Having regard to the overall facts and
circumstances, this Court is of the considered view that the
contention of the accused before the Court below that they were
implicated falsely cannot stand to any reason. Therefore, the
evidence adduced by the prosecution before the Court below
was cogent and satisfactory and the case of the prosecution
does not suffer with any infirmities, contradictions, omissions or
discrepancies. P.W.1, P.W.2 and P.W.5 were natural witnesses
to the occurrence. P.W.6 testified that immediately after the
occurrence, he rushed to there and came to know about the
manner of attack. In my considered view, the learned Sessions
Judge, Vizianagaram, rightly believed the case of the
prosecution. However, the learned Sessions Judge considering
the fact that the incident in question was happened in sequence
and in a spur of moment when A.1 and A.2 started quarrelling
with P.W.2 was of the view that the evidence adduced would not
prove the charges under Section 302 of I.P.C. against A.1 and
Section 302 r/w 34 of I.P.C. against A.2 and ultimately came to
a conclusion that the prosecution could establish the offence
under Section 304 Part II of I.P.C. against A.1 and Section 304
Part II r/w 34 of I.P.C. against A.2 and further believed the case
of the prosecution with regard to the charges under Section 307
and 307 r/w 34 of I.P.C. against A.1 and A.2 respectively for
attacking P.W.5 on his vital parts of the body. As pointed out,
the findings of the learned Sessions Judge, Vizianagaram in
convicting A.1 and A.2 under Section 304 Part II and 304 Part II
r/w 34 of I.P.C. respectively are not under challenge before this
Court by the prosecution.
36) Having regard to the above, I am of the considered
view that the prosecution has categorically proved that A.1
caused the death of deceased on 27.12.2007 and A.2 shared the
common intention of A.1 in causing death of deceased and
further A.1 made an attempt with knowledge that his attack on
P.W.5 is likely to cause death and further A.2 shared the
common intention of A.1 in attacking P.W.5 on his vital parts of
the body. Therefore, the conviction recorded by the learned
Sessions Judge, Vizianagaram, under the above provisions of
law, cannot be said to be erroneous. Hence, I see no reason to
interfere with the judgment of the learned Sessions Judge,
Vizianagaram in Sessions Case No.62 of 2009, dated
13.08.2009.
37) In the result, the Criminal Appeal is dismissed, as
such, the judgment of the Court below in S.C.No.62 of 2009,
dated 13.08.2009 shall stand confirmed.
38) 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 08.03.2023 and on such certification,
the trial Court shall take necessary steps to carry out the
sentence imposed against the appellants/A.1 and A.2 and to
report compliance to this Court.
Consequently, miscellaneous applications pending, if any,
shall stand closed.
________________________
JUSTICE A.V. RAVINDRA BABU
Dt. 02.03.2023.
PGR
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRL. APPEAL NO.365 OF 2011
Date: 02.03.2023
PGR
