Pitcholla Sanjanna, vs The State Of A.P., Rep By Pp., And ...
2023 Latest Caselaw 1692 AP

          HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

                 CRIMINAL APPEAL No.1322 OF 2010

JUDGMENT:

This Criminal Appeal, under Section 374(2) of the Code of

Criminal Procedure, 1973 (for short, 'the Cr.P.C'), is filed by the

appellant, who was the accused in Sessions Case No.129 of 2007,

on the file of the Court of II Additional Sessions Judge, Kadapa at

Proddatur (for short, 'the learned Additional Sessions Judge'),

challenging the judgment, dated 26.07.2010, where under the

learned Additional Sessions Judge found the accused guilty of the

offence under Section 304(Part-II) of the Indian Penal Code, 1860

(for short, 'IPC'), as against original charge under Section 302 IPC,

and accordingly after questioning him about the quantum of

sentence, convicted him under Section 235(2) Cr.P.C. and

sentenced him to undergo Rigorous Imprisonment for seven years

and to pay a fine of Rs.500/- in default to suffer Simple

Imprisonment for fifteen days for the offence under Section 304

(Part-II) IPC.

2. The parties to this Criminal Appeal will hereinafter be

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

convenience.

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3. Sessions Case No.129 of 2007 before the learned Additional

Sessions Judge, arose out of committal order in PRC No.7 of 2007

on the file of the Court of I Additional Judicial Magistrate of First

Class, Proddatur (for short, 'the learned Magistrate'), relating to

Crime No.20 of 2007 of Proddatur I Town Police Station.

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

averments in the charge sheet, filed by the Police pertaining to

above Crime, is as follows:

LW.1 - de-facto complainant - A. Balanagamma, is resident

of Vasanthapet street of Praddatur town. Anugonda Brahma

Narayana @ Brahmaiah is the deceased (for short, 'the deceased').

Anugonda Balanagamma is the wife of the deceased and witness

to the occurrence. Originally, LW.1 and the deceased belonged to

Mittamanupalli of Mydukur Mandal. Accused married the sister of

the deceased i.e., Obulamma about seven years ago. After that

both LW.1 and the deceased shifted to Proddatur Town and they

were residing at Door No.25/678 of Vasanthapet Street. Deceased

was working as a compounder in Dr. Vara Lakshmi's Hospital.

LW.2 - Anugonda Nadipi Obanna and LW.3 - Anugonda

Chinnakka are residents in the same street. Accused and his wife

are also residing in the same street adjacent to the house of LWs.2

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and 3. Accused is living by dhobi work and he is also a butcher.

Six months prior to the incident, accused was addicted to

consume alcohol and used to beat his wife Obulamma demanding

money from LWs.2 and 3. Accused used to send his wife to the

house of LWs.2 and 3 to get money. LW.2 used to give some

money to Obulamma, who is the wife of the accused. While so, on

18.02.2007, due to Sivarathri festival at about 05:00 p.m. accused

came to the house of the deceased and demanded money for

taking alcohol. LW.1 and the deceased tried to convince the

accused saying that how many days they will fulfill his demand

and that they have no money. Accused left the house threatening

the deceased that he would come again and if he does pay the

amount, he will kill the deceased.

On 18.02.2007 at 09:00 p.m. while LW.1 and the deceased

were sitting in front of their house, the accused came to the house

of the deceased with an intention to kill him and questioned the

deceased for not providing money and informed him that he would

kill him and picked up quarrel with them. When LW.1 questioned

the accused as to why he would kill the deceased, accused pushed

her aside and took the dagger from his waist and stabbed over the

right side of the chest i.e., below the right arm pit (right side ribs)

and caused severe bleeding injury to the deceased. The deceased

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raised hue and cry as 'amma'. LW.1 also raised cries as accused is

killing her husband. LW.2 - N. Obanna, LW.3 - N. Chinnakka,

LW.4 - D. Gurrappa and LW.5 - N. Gangulaiah came there and

witnessed the occurrence. Accused ran way from the scene of

offence along with the dagger, used for commission of the offence.

They shifted the deceased to Government Hospital, Proddatur in

Auto for treatment. While undergoing treatment on 18.02.2007,

the deceased died at 10:30 p.m. at Government Hospital,

Proddatur. On receiving the hospital intimation, ASI, Proddatur I

Town PS - K. Ganganna, went to the Government Hospital and

recorded the statement from LW.1. Basing on the statement of

LW.1, ASI registered the FIR under Section 302 IPC and took up

investigation. Medical Officer conducted autopsy over the dead

body of the deceased and issued post-mortem report that the

deceased appears to have died of haemorrhage and shock due to

injury to right lower of liver. LW.17, the Inspector of Police,

Proddatur I Town, observed the scene of offence in the presence of

mediators. On 21.02.2007, on receipt of credible information, the

Investigating Officer proceeded to Munnaiah Swamy Temple at

04:10 p.m. and arrested the accused under the cover of

panchanama in the presence of the panchayatdars and accused

led the Police party at 05:00 p.m. to the house where he is residing

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and produced one dagger which was used in the commission of

the offence. The Inspector of Police seized the same in the presence

of mediators. Hence, the charge sheet. .

5. The learned Magistrate took cognizance of the case,

numbered it as PRC No.7 of 2007 and after completing the

formalities under Section 207 Cr.P.C, committed the case to the

Court of Session. It was numbered as S.C. No.129 of 2007, and

thereupon it was made over to the Court to learned Additional

Sessions Judge Kadapa at Proddatur.

6. After appearance of the accused before the learned

Additional Sessions Judge, a charge under Section 302 IPC was

framed and explained to the accused in Telugu, for which he

denied the offence, pleaded not guilty and claimed to be tried.

7. To bring home the guilt against the accused, the prosecution

before the learned Additional Sessions Judge, examined PWs.1 to

8 and marked Exs.P-1 to P-12 and also marked MOs.1 to 5.

8. After closure of the evidence of the prosecution, accused was

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

incriminating circumstances appearing in the evidence let in, for

which he denied the same and stated that he was not available in

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the Town on that day and he was implicated falsely and that he

would examine his wife as a witness but accused did not let in any

defence evidence.

9. The learned Additional Sessions Judge, on hearing both

sides and after considering the oral and documentary evidence on

record, found the accused guilty of the offence under Section

304(Part-II) IPC, culpable homicide not amounting to murder, and

accordingly convicted and sentenced him, as above, as against the

original charge under Section 302 IPC.

10. Being aggrieved by the conviction and sentence, the

unsuccessful accused, filed the present Appeal.

11. Now, in deciding this Criminal Appeal, the points that arise

for consideration are:

1) Whether the accused on 18.02.2007 at about 09:00

p.m. in front of the house of Brahma Narayana @

Brahmaiah stabbed him and caused his death?

2) Whether the prosecution has proved the offence

alleged against the accused beyond reasonable doubt?

12. POINT Nos.1 & 2: Sri V. Raghu, learned legal-aid counsel,

appearing for the appellant, would contend that the evidence of

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PWs.1 and 2 i.e., wife of the deceased and neighbourer is

interested in nature. The incident in question was said to be

happened during night at 09:00 p.m. in front of the house of the

deceased. PW.2 was a planted witness to the case of the

prosecution. The prosecution did not examine the other direct

witnesses to the occurrence and given up them without proper

reasons. There was every doubt as to the electricity at the house of

the deceased at the time of offence and it was very difficult for

PWs.1 and 2 to witness the occurrence. The Court below, without

proper analyzation of the evidence on record, erroneously,

convicted the accused. No proper points were formulated for

consideration before the Court below. Other independent

witnesses were not examined by the prosecution. When the

incident was occurred during night, prosecution was bound to

prove as to how PWs.1 and 2 identified the accused. Though, there

was no dispute about the cause of death of the deceased but

accused was innocent as such Appeal is liable to be allowed.

13. Sri Y. Jagadeeswara Rao, learned counsel, representing

learned Public Prosecutor, appearing for the respondent-State,

would contend that the accused was not a stranger to the

deceased. Accused was no other than brother-in-law of the

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deceased and PW.1 was the wife of the deceased. The Court below

rightly negatived the contention of the accused that there was no

possibility for PWs.1 and 2 to identify the accused. Accused was

no other than the close relative to the deceased and husband of

sister-in-law of PW.1 and learned Additional Session Judge rightly

believed the case of the prosecution. Pursuant to the confession

made by the accused, the dagger was also seized at the instance of

the accused in the presence of the mediators. The prosecution

proved the death of deceased was of homicidal. The learned

Additional Sessions Judge in fact as against the original charge

under Section 302 IPC convicted the accused under Section

304(Part-II) IPC and rightly imposed the punishment of seven

years and there are no grounds to interfere with the judgment of

the trial Court.

14. There is no dispute that the de-facto complainant i.e., PW.1

is no other than the wife of the deceased. According to the case of

the prosecution, the deceased has a sister and accused is the

husband of the sister of the deceased. These facts are not at all in

dispute.

15. For better appreciation, firstly, it is pertinent to look into the

allegations contained in Ex.P-1, statement of the de-facto

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complainant. The police recorded the statement of PW.1 on

18.02.2007 from 10:45 p.m. to 11:15 p.m. In Ex.P-1 PW.1 alleged

that her marriage with the deceased took place about seven years

ago and the deceased used to work as a compounder. She had two

issues. The marriage of her sister-in-law was performed with

Sanjanna i.e., the accused. Accused used to consume alcohol and

beat his wife and used to send her to her parents house for

money. They (de-facto complainant's family) used to pay money

and used to send her sister-in-law to the accused. While so, on

18.02.2007 at 05:00 p.m. accused came to her house and

demanded money to drink alcohol and she and her husband

(deceased) questioned the act of the accused saying that how

many days they have to fulfill his demand and that they have no

money. Then the accused threatened that he would come within

one hour and if he does not pay the amount then, he will kill the

deceased. On the same day at 09:00 p.m. accused came there and

questioned the deceased as to why he did not pay the amount and

when she (PW.1) questioned the act of the accused, accused

picked up a dagger from his waist and stabbed the deceased on

his right side chest and the deceased raised hue and cry and on

hearing the cries, her mother-in-law, father-in-law and one

Yellappa and others rushed there and accused absconded. As

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there was a bleeding to the deceased, they all taken him to the

Government Hospital, where he died.

16. Now, coming to the evidence of PW.1, she narrated about

the conduct of the accused in consuming alcohol and asking his

wife to bring money from her in-laws and that her sister-in-law

used to come to their house whenever the accused necked out her

and they used to comply the demands of the accused several

times. Ultimately, during Sivarathri festival, accused came to her

house in an intoxicant stage and demanded her husband at 05:00

p.m. to pay the amount. Accused threatened her husband with

dire consequences, when he refused to pay the amount. On the

same day at about 09:00 p.m. while she and her husband were

sitting outside of the house, accused came and demanded her

husband for the amount. When her husband refused to give the

amount and questioned him as to how many times he has to

satisfy the demands, accused abused him and threatened to kill

him. Then, she questioned the behavior of the accused. Then the

accused pushed her aside and abused her in filthy language and

removed a short dagger (chura kathi) from his waist and stabbed

on the right side abdomen of the deceased. A bleeding injury was

caused to her husband and he raised cries and on hearing the

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cries, LWs.2 to 5 and neighbourers came there. Then the accused

ran away from the scene. She witnessed the bleeding injuries of

her husband and the crime weapon, which is in the hands of the

accused in the illumination of the street light which is in front of

her house and even in the light of her house. She lifted the injured

to hospital in the Auto and at the hospital, while undergoing

treatment, he died at 10:30 p.m. Her husband used to work as

Compounder at private hospital. Accused used to live by washing

clothes and slaughtering sheep. She can identify the crime weapon

which is marked as MO.1. She gave statement to the Police after

death of her husband, which is marked as Ex.P-1.

17. Coming to the evidence of PW.2, he was a neighbourer. His

name is D. Gurrappa @ Yellappa and his name was mentioned in

Ex.P-1 as a witness to the occurrence. His evidence, in brief, is

that accused is the brother-in-law of the deceased. He knows the

accused. There are four houses between his house and the house

of the deceased. There are six houses between his house and the

house of the accused. Six months prior to the offence, accused

used to demand the deceased and his parents for money to

consume alcohol. On the next day of Sivarathri festival at 05:00

p.m. accused demanded the deceased and PW.1 for money. They

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refused to give money. Accused threatened the deceased that he

would come within one hour and he would kill him if they are not

going to pay the amount. Then, he (PW.2) pacified the matter and

send the accused. Accused at 09:00 p.m. approached the house of

the deceased and there was a galata in front of the house of the

deceased. He (PW.2) is 10 feet away from the house of the

deceased. He witnessed the accused stabbing the deceased with a

dagger (chura kathi) on right abdomen of the deceased. He

approached the deceased and on seeing him, the accused fled

away. The deceased fell down with bleeding injuries. Then, the

injured was shifted to Government Hospital, Proddatur where he

succumbed to injuries within 10 to 15 minutes. He witnessed the

incident in the illumination of the electricity and it is not dark.

18. PW.3 is the inquest panchayatdar who supported the case of

the prosecution. He signed on the inquest report, marked as

Ex.P-2.

19. PW.4 is the Medical Officer, who conducted autopsy over the

dead body of the deceased and issued post-mortem report, Ex.P-3.

20. PW.5 is the panchayatdar for the seizure of bloodstained

cement concrete and controlled cement concrete.

AVRB,J Crl.A. No.1322/2010

21. PW.6 is the mediator to the arrest of the accused and

recovery of the crime weapon.

22. PW.7 is the SI of Police, who recorded the statement of PW.1

and registered the FIR.

23. PW.8 is the then Inspector of Police, Proddatur I Town PS,

who was the Investigating Officer.

24. As seen from the evidence of PW.1, her evidence is in tune

with Ex.P-1, statement recorded by Police from her. The presence

of PW.2 as a witness to the occurrence was clearly mentioned in

Ex.P-1. So, Ex.P-1 can be used to corroborate the testimony of

PW.1 in the event of PW.1 supporting the case of the prosecution.

Admittedly, it is a case where PW.1 supported the case of the

prosecution in tune with the contents in Ex.P-1. During the course

of cross-examination of PW.1, the relationship between PW.1 and

the deceased is not in dispute. There is also no dispute that

accused married the sister of the deceased as such he is brother-

in-law to the accused.

25. During cross-examination, PW.1 deposed that with regard to

the previous incidents where the accused demanded the amount

from her sister-in-law and with regard to the incident happened at

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05:00 p.m. there were no police reports. It is to be noticed that

even according to the evidence of PW.1 in cross-examination

explaining as to why she did not make any complaint earlier, she

categorically deposed that as the accused is the husband of her

sister-in-law and in order to safeguard the relation of her sister-in-

law, there were no complaints made against the accused with

regard to the earlier demands. So, the mere fact that neither the

deceased nor PW.1, previously lodged any reports as to the

conduct of the accused would not enable the accused to contend

that the evidence of PW.1 is false. There is no dispute that the

deceased used to work as a compounder. PW.1 during the course

of cross-examination has spoken about the shift duties of the

deceased as from 08:00 a.m. to 01:00 p.m., 01:00 p.m. to 09:00

p.m. and 09:00 p.m. to 08:00 a.m. He volunteers that on the date

of offence, her husband came late to the house. She denied that

her husband was in second shift duty on the date of offence. She

voluntarily disclosed that her husband has not gone to the duty as

it was a Sunday (Holiday) on the date of offence. To these answers

spoken to by PW.1 no contra version was suggested. She deposed

in cross-examination that there were street lamps in their street.

Even she had electrical lamp at her house. She did not depose

about the street lamps or the mode of illumination available in the

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street at the time of offence. She denied that there were no street

lamps in the street near the scene of offence and there is no pial in

front of her house.

26. During the course of cross-examination, PW.2 deposed

about that the door number of his house is 25/649, Vasanthapeta

street, Proddatur Town. The entrance of his house was facing

towards north. The deceased house is facing towards east. He

denied that there were 15 houses in between his house and the

house of the deceased. He denied that he let out his house on rent

to someone and denied that he is deposing false. As evident from

the evidence of PW.2, he was neighbor to the house of the

deceased and PW.1 and there remained nothing in the testimony

of PW.2 to show that he was a planted witness. On the other hand,

he was a neighbouring witness and his evidence is convincing. It is

to be noticed that the contention of the accused is that he was

falsely implicated in the case. There is no dispute that he was a

resident of Proddatur Town. During the course of 313 Cr.P.C.

examination, he put up a version that he was not available in the

town on that day. Except a bald version in 313 Cr.P.C.

examination, there remained nothing in favour of the plea of the

accused that he was else where at the time of offence in question.

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The evidence of PW.1 was not at all challenged by suggesting

anything that the accused was elsewhere at the time of offence.

Similar is the situation in respect of the evidence of PW.2.

27. If the accused was elsewhere at the time of offence in

question, he was supposed to put forth such a version even during

investigation before the Investigating Officer. Nothing is suggested

to PW.8, Investigating Officer, on behalf of the accused that the

accused was elsewhere at the time of offence in question. So, the

contention of the accused that he was elsewhere at the time of

offence in question is not at all probabilized. PW.1 has no reason

whatsoever to depose false against the accused. PW.2, the

neighbouring witness, had no reason to depose false against the

accused. With regard to the contention of the accused that there

was no possibility for PW.1 to identify him, this Court would like

to make it clear that the offence in question was happened at

09:00 p.m. at the house of the deceased and PW.1. It was not an

odd time. It was happened in front of the house of the deceased.

So, by then, PW.1 and deceased were not sleeping. When the time

of occurrence was not a sleeping time, by then illumination was

supposed to be available in the house of PW.1 and the deceased.

As evident from the contention of the accused only on account of

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the fact that the time of offence was at 09:00 p.m., accused

wanted to take an advantage on the ground that there was no

possibility for PWs.1 and 2 to identity him. Accused was not a

stranger to the family of PW.1 and the deceased. He was not a

stranger to PW.2, who was a neighbouring witness. The evidence

adduced by the prosecution that PWs.1 and 2 were witnesses to

the occurrence is fully convincing. Hence, the defence of the

accused before the Court below in this regard is not at all tenable.

Even the accused has gone to the extent of eliciting from the

mouth of PW.1 as regards the timings regarding the shift duties of

the deceased. She categorically deposed that as it was a holiday

i.e., Sunday, deceased did not go to the duty. Apart from that,

even the deceased was also present at 05:00 p.m. according to the

case of the prosecution and evidence of PW.1, when the accused

demanded PW.1 and the deceased to pay the amount to consume

alcohol. According to PWs.1 and 2 accused threatened the

deceased to kill the deceased by coming after some time in case if

his demand for money is not complied. This is categorically

testified by PW.2. So, PW.2 was a witness to both the episodes.

Under the circumstances, the effort made by the accused to show

that there was no possibility for PWs.1 and 2 to identify him is

nothing but fallacious. In my considered view, the evidence of

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PWs.1 and 2 with regard to the manner of attack made against the

accused by the deceased is concerned, is fully convincing.

28. As evident from the evidence of PW.3, he was present at the

time of inquest and he opined that the accused stabbed the

deceased. Ex.P-2 is the inquest report. According to the evidence

of PW.8, he examined other witnesses during the proceedings of

the inquest. So, it is a clear fact that the Investigating Officer

examined PWs.1 and 2 before conducting inquest.

29. There is recovery of MO.1 weapon which was used in the

commission of the offence in the presence of PW.6 by the

Investigating Officer. According to the evidence of PW.6, on three

days subsequent to the offence Police arrested the accused at

Muniswamy Temple at 04:10 p.m. in his presence and he acted as

a panchayatdar. The arrest panchanama is Ex.P-5. His further

evidence is that pursuant to the disclosure statement, accused led

them to his house and brought crime weapon and handed over to

the Police. The evidence of PW.8, Inspector of Police, in this regard

is consistent with that of the evidence of PW.6, the panchayatdar.

Nothing is elicited from the cross-examination of PWs.6 and 8 so

as to disbelieve the alleged theory of recovery of the weapon used

in the commission of the offence. So, there is not only the direct

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evidence of PWs.1 and 2 to prove that the accused stabbed the

deceased at 09:00 p.m. at the house of the deceased and even

there is convincing evidence adduced by the prosecution before

the Court below with regard to recovery of the dagger which was

used in the commission of the offence.

30. PW.5 was a mediator to the observation of the scene of

offence. PW.7 was the SI of Police who proceeded to the

Government Hospital first on receipt of the hospital intimation

under Ex.P-7 and recorded the statement of PW.1. He has spoken

about the fact that after returning to the Police Station, he

registered the FIR under Section 302 IPC and Ex.P-9 is the

original FIR. It is to be noticed that according to the evidence of

PW.8, Ex.P-2 inquest report was conducted over the dead body of

the deceased at the house of the deceased. A vain attempt was

made by the accused during the course of cross-examination that

the deceased went to the duty on that particular point of time

which PW.1 denied. Accused did not dispute death of the deceased

and did not dispute the cause of death of the deceased. He did not

dispute the place of inquest over the dead body of the deceased.

So, it is not the defence of the accused that by suggesting anything

as to how the deceased died. So, the very defence of the accused

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before the Court below was nothing but an afterthought. When the

accused pleaded the plea of alibi during the course of 313 Cr.P.C.

examination, which he failed to put forth before PWs.1 and 2, he

was bound to probabilize the same. He miserably failed to

probabilize the same. The learned Additional Sessions Judge,

Proddatur rightly believed the evidence of PWs.1 and 2 in this

regard. As evident from Ex.P-3, the post-mortem report, coupled

with the evidence of Medical Officer, it is clear that the cause of

death was on account of the haemorrhage and shock due to injury

to right lobe of liver. So, the prosecution adduced medical evidence

to prove the death of the deceased was homicidal. In my

considered view, the prosecution before the Court below

categorically proved that on the date of offence at 09:00 p.m.

accused attacked the deceased with a dagger and stabbed him

over his body and caused the death of the deceased ultimately.

31. The learned Additional Sessions Judge looked into the over

all facts and circumstances and was of the view that the

prosecution did not prove the exact intention of the accused to

commit murder. In that view of the matter, the learned Additional

Sessions Judge was of the view that the prosecution could

establish the offence under Section 302(Part-II) IPC i.e., culpable

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homicide not amounting to murder. The above said findings of the

learned Additional Sessions Judge are not challenged by the

prosecution. Under the circumstances, in my considered view that

the learned Additional Sessions Judge rightly believed the case of

the prosecution and rightly convicted and sentenced the accused

for the offence under Section 304(Part-II) IPC, culpable homicide

not amounting to murder. Having regard to the over all facts

and circumstances, I see no reason to interfere with the impugned

judgment of conviction and sentence imposed against the accused

before the Court below.

32. In the result, the Criminal Appeal is dismissed confirming

conviction and sentence imposed against the appellant/accused in

Sessions Case No.129 of 2007, dated 26.07.2010, on the file of the

Court of II Additional Sessions Judge, Kadapa at Proddatur.

33. The Registry is directed to take steps immediately under

Section 388 Cr.P.C. to certify the judgment of this Court including

the trial Court record, if any, to the Court below on or before

03.04.2023 and on such certification, the trial Court shall take

necessary steps to carry out the sentence imposed against the

appellant/accused in S.C. No.129 of 2007, dated 26.07.2010, and

to report compliance to this Court. A copy of this judgment be

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placed before the Registrar (Judicial), forthwith, for giving

necessary instructions to the concerned Officers in the Registry.

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date: 27.03.2023 DSH