Gaddela Subba Rao, Khammam Dt., vs State Of Ap., Rep. Pp. Hyd.,
2022 Latest Caselaw 6005 Tel

         THE HON'BLE SMT. JUSTICE P. SREE SUDHA
                                  AND
              THE HON'BLE DR. JUSTICE D.NAGARJUN

                     CRIMINAL APPEAL No.6 of 2014

COMMON JUDGMENT: (Per Hon'ble DR.JUSTICE D.NAGARJUN)


       This Criminal Appeal is filed by the appellant-accused to

set   aside    the    judgment,   conviction   and   sentence   dated

04.12.2013

in S.C.No.633 of 2012 on the file of learned Judge,

Family Court - Cum - Additional Sessions Judge, Khammam.

2. The brief facts which necessitated the appellant to file this

criminal appeal are as under:

a) On 13.12.2011 at 9.30 AM the de-facto complainant

lodged a complaint before the VR Puram Police Station alleging

that on 12.12.2011 at about 10.00 PM her father (hereinafter

will be referred as "deceased"), who is aged about 70 years, had

his dinner, went to his hut to sleep. In the meanwhile, the

accused came to the hut of deceased and asked him to provide

tobacco. During the course of conversation, the accused asked

as to why the deceased has practiced sorcery "mantralu" on his

mother thereby she became mad. While saying so, the accused

cut the neck of the deceased with palmyra leave cutting knife.

The deceased raised hue and cry stating that the accused is

cutting his neck with a knife. On hearing such cries of the

deceased, the de-facto complainant and her mother went there

and found that accused was fleeing away from there by holding

the knife. Though the de-facto complainant and her mother

chased him, they could not catch him and they both returned

back to the hut and found that the deceased received cut injury

over left side of neck and blood was oozing. In the meanwhile,

brother and sister - in - law of the de-facto complainant came

there and shifted the deceased to the Government Hospital,

Rekhapally, who, while undergoing treatment, died at 1.00 AM.

b) On the strength of the said complaint/Ex.P1, a case in

Crime No.30 of 2011 was registered by Police, VR Puram for the

offence under Section 302 of the Indian Penal Code and issued

FIR in Ex.P7. During the course of investigation, Crime Detail

Form under Ex.P3 was prepared on 13.12.2011 in the presence

of mediators, drew rough sketch, collected samples of blood

stained earth, control earth, blood stained bed sheet and seized

one mobile phone of China made MO1 from the scene of offence,

got photographed the scene of offence through a private

photographer Ex.P2, dead body of the deceased was examined

at Government Hospital, Kunavaram, noted the injuries on the

dead body, conducted inquest panchanama under Ex.P4 over

the dead body, referred the dead body for autopsy.

c) On 15.12.2011 at 7.30 AM while the appellant-accused

was waiting the Police have apprehended him. Confession

statement of Appellant - Accused was recorded and the

appellant has voluntarily confessed to have committed the

offence and a knife folded in a cloth from the back of the

appellant under his t-shirt was recovered. The medical officer,

who conducted autopsy over the dead body of the deceased, has

opined in post mortem report under Ex.P6 that the cause of

death of deceased is "Hemorrhagic shock due to cut injury to

major blood vessels". The seized material objects have been

forwarded to RFSL, Warangal. After completion of investigation,

charge sheet is filed against appellant-accused.

d) Cognizance was taken as S.C.No.633 of 2012 on the file of

learned Judge, Family Court - Cum - Additional Sessions

Judge, Khammam. On appearance of the accused, the following

charge was framed against the appellant-accused for the offence

under Section 302 of the Indian Penal Code:

"That you, on the 12th day of December, 2011 at about 2200 hours at Annavaram Village, H/o. Rekhapally Mandal, Khammam District, within the limits of Police Station V.R.Puram, Khamma District,

committed murder intentionally cause the death of Sode Erra Muthaiah S/o. Pentaiah, aged: 70 years, Koya, R/o. Annavaram, H/o. Rekhapally Village, V.R.Puram Mandal, Khammam District, by hacking him with a knife, which is used for cutting palmyrah tree leaves on left side of his neck, causing his death, on the ground that he applied sorcery to your mother due to which your mother became unsound and was behaving like a made and thereby you committed an offence punishable under Section 302 of Indian Penal Code and within my cognizance.

The above said charge was read over and explained to the

accused, who pleaded not guilty and claimed to be tried.

e) During the course of trial, the prosecution has examined

PWs 1 to 15 and got marked Exs.P1 to P8 and MOs1 to 3. After

completion of evidence on behalf of prosecution, the accused

were examined under Section 313 of the Code of Criminal

Procedure, wherein the accused has denied the incriminating

evidence deposed against him, by the prosecution witnesses.

On behalf of accused, the relevant portion of statement of PW1

recorded under Section 161 of the Code of Criminal Procedure

was marked as Ex.D1.

f) The trial Court after hearing both sides, found accused

guilty for the offence alleged against him and convicted him to

undergo Rigorous Imprisonment for Life and to pay fine of

Rs.500/- and in default to undergo simple imprisonment for a

period of one month for the offence under Section 302 of the

Indian Penal Code.

3. Aggrieved by the conviction judgment, the appellant has

filed the present criminal appeal mainly on the following

grounds:

i) The trial Court convicted the appellant by relying upon

the testimony of PWs 1 to 5, who are interested witnesses.

ii) There is a delay in lodging report to the Police Station,

which is very nearer to the complainant.

iii) There are number of discrepancies in the evidence of PWs

1 to 4 and also in recovery and seizure of MO3.

iv) PW14, the investigating officer has categorically stated

that the mother of the appellant-accused is suffering from

mental ailment since time, as such, causing death of the

deceased by the appellant on the grudge that deceased has

applied sorcery "mantrarlu" on his mother and made her to

mad, does not arise.

4. Now the point for consideration is:

"Whether the judgment of conviction and sentence dated 04.12.2013 in S.C.No.633 of 2012

passed by the learned Judge, Family Court - Cum - Additional Sessions Judge, Khammam can be set aside?"

5. Heard learned counsel for the appellant-accused and

learned Assistant Public Prosecutor sides and perused the

record.

6. According to the prosecution, the appellant has bore

grudge on the deceased, as the accused has suspected that the

deceased has played sorcery on his mother and thereby his

mother has become mad. By keeping that grudge, which,

according to the police, is a motive, the appellant has entered

into the hut of the deceased at about 10.00 p.m. on 12.12.2011

when he was alone. The accused asked the deceased for

tobacco for which the deceased told the appellant that he has

no tobacco and then the appellant has also told the deceased

that on account of practicing of sorcery on his mother, she

became made. The deceased stated to have replied that the

mother of the appellant is like his daughter. In the meanwhile,

the appellant has picked up a palmyra leaves cutting knife and

cut the neck on the left side of the deceased on which the

deceased has raised hue and cry stating that the appellant was

cutting his neck. PWs.1 and 2, who are very close by outside

the hut, heard the cries and ran inside the hut and on seeing

that the appellant ran away by holding the knife, PWs.1 and 2

chased him, but could not catch him. They returned back to

hut and found the deceased in pool of blood and shifted to

hospital where the deceased succumbed to death on the late

night at 1.00 a.m.

7. The prosecution has produced PWs.1 to 15 and filed

Exs.P1 to P8. On behalf of the appellant, no witness was

examined. However, Ex.D1 was marked out of the statement of

PW.1 in 161 Cr.P.C., statement.

8. There are no eye witnesses to the incident. Even

according to the prosecution, the appellant has slit the neck of

the deceased on the left side when the deceased was alone in

his hut. PWs.1 and 2 and others were outside the hut at such a

distance that the hue and cry raised by the deceased could be

heard. The evidence of PWs.1 and 2 are crucial to the

prosecution as they are the persons, who have reached the

scene of offence, immediately after the incident and spoke to the

deceased.

9. PW.1, who is no other than the daughter of the deceased,

has deposed that on a fateful day when herself and her

mother/PW.2 were outside the hut of her father near the fire,

the appellant entered into the hut and slit the neck of her

father. On hearing the hue and cry of her father, herself and

her mother rushed to the spot and seen that the appellant

running with a knife. PWs.1 and 2 have chased the accused,

but could not catch him. They returned back and took the

deceased to the hospital.

10. Similarly, PW.2 deposed that she is the wife of the

deceased and on that day while herself and her daughter/PW.1

were near the hut, they heard the voice of the appellant asking

the deceased to give tobacco and she then heard the hue and

cry of the deceased stating that Subba Rao/appellant is cutting

his neck. Immediately, they rushed and find that the appellant

running with a knife. They chased him, but could not catch.

PW.2 further went on to depose that her husband informed her

that the appellant has cut his neck with knife.

11. PW.3 is the son of the deceased. He also deposed that

when he was sleeping in his house, his brother Durga

Rao/PW.4 came to him and informed that the appellant has cut

the neck of the deceased. He rushed to the scene of offence and

found his father was bleeding with cut injury and on enquiry his

sister/PW.1 has informed him that the appellant has entered

the hut and cut the neck of the deceased. Boycott

12. Similarly, PW.4, who is also a son of the deceased,

deposed that at the time of incident he was in his hut along

with his wife and that his hut is satiated very close to the hut of

his father. According to him, when PW.1 informed him by

shouting that the appellant has cut the neck of the deceased

with a knife, himself and his wife rushed to the scene of offene

and found the deceased lying on the ground and on enquiry,

PW.1 informed him that the appellant has cut the neck of the

deceased with a knife.

13. The evidence of these four witnesses is crucial to the

prosecution. Their evidence would go to show that on a fateful

day at about 10.00 p.m., the appellant went inside the hut of

the deceased, asked him for tobacco and told the deceased that

the deceased has played sorcery on his mother and thereby she

became made and while saying so, the accused has slit left side

of the neck of the deceased as a result, the deceased raised hue

and cry and on hearing the same, PWs.1 and 2 rushed into the

hut and seen the appellant running away with knife. Though

PWs.1 and 2 tried to chase them, they could not catch him.

PWs.3 and 4, who are the sons of the deceased and brothers of

PW.1 also deposed in similar lines. According to their evidence

when both of them reached the scene of offence, they found the

deceased in pool of blood and it was informed by PW.1 to them

that the appellant has cut the throat of the deceased.

14. None of the four witnesses i.e., PWs.1 to 4 have

witnessed while the appellant was cutting the neck of the

deceased. Therefore, the question is whether there are

circumstances to believe the evidence of PWs.1 to 4 to the effect

that the appellant has cut the neck of the deceased with a knife.

PW.1's evidence can be considered to conclude that she heard

the cries of her father stating that the appellant is cutting his

throat on which she rushed to the scene of offence and seen the

appellant running with knife. She chased him along with PW.2,

but could not trace him.

15. PW.2 was categorical in deposing that the deceased has

told her that the appellant has cut his throat. Not only that she

also heard the hue and cry of the deceased that the appellant

has cut his throat and she found that the appellant was

running with a knife. Therefore, at the scene of offence when

there are no other persons except the deceased and the

appellant, when both PWs.1 and 2 have seen the appellant with

a knife running and when the deceased has raised hue and cry

that the appellant has cut his throat and when the deceased

has told PW.2 that the accused has cut his throat, then

certainly the evidence of PWs.1 and 2 can be believed to say

that the appellant has cut the throat of the deceased.

16. The evidence of PWs.3 and 4 would also go to show that

at the time of incident, they were not present and their

sister/PW.1 informed them that the appellant has cut the throat

of the deceased with knife suspecting that the deceased was

playing sorcery on his mother. Therefore, on perusal of the

evidence of PWs.3 and 4, which corroborates with the evidence

of PWs.1 and 2, it is clear that the appellant has cut the throat

of the deceased with a knife on the ground that he was playing

sorcery on his mother.

17. Other witnesses produced by the prosecution are

circumstantial witnesses. PW.5 is the person in whose auto the

deceased was shifted to hospital. PW.6 is the Civil Assistant

Surgeon, who has treated the deceased initially, and at that

time, the deceased was in semi-conscious state and not fully

unconscious. PW.7, photographer, who has taken the pictures

of the deceased and the scene of offence.

18. PW.8 is the panch witness for recovery of mobile phone

belonging to the appellant under MO1 at the scene of offence.

Though this witness has identified the accused in the Court, his

identification will not have any significance because the mobile

phone of the deceased was not recovered at the instance of the

accused.

19. Further, the prosecution has failed to connect the mobile

phone to the appellant. Though PW.8 has stated that the

mobile phone under MO1 belongs to the appellant, there is no

record to that extent. Police can certainly file the record from

the service provider to show that the sim card in the mobile

phone was given to the appellant, but no such effort was made.

In addition to that, mobile phones similar to that of MO1 will be

available in the market thereby suspicion would arise as to

whether MO1-mobile phone belongs to the appellant or not. In

fact, there is no significance of any mobile phone in this case.

In order to strengthen the case of the prosecution that the

appellant was present at the scene of offence, it appears that

the prosecution has made an attempt to prove before the Court

that MO1/mobile phone belonging to the appellant was found at

the scene of offence to contend that the appellant has cut the

throat of the deceased.

20. PW.9 is the mediator for scene of offence panhcanama

under Ex.P3. PW.10 is the mediator for the inquest

panchanama under Ex.P4. In this case, no significance can be

attached to the inquest, as cause of the death is not in dispute

and the dead body is also identified.

21. PW.11 is again a crucial witness to the prosecution. He is

the one in whose presence the appellant stated to have

confessed the offence and also produced MO3/knife. He

deposed that on his enquiry, the appellant has confessed that

he has committed the offence and told that he is having the

knife which was used to committing the offence. Police have

seized the said knife in pursuance of his confession under

Ex.P5, the relevant portion of confessional panchanama. This

evidence would clearly go to show that the appellant has

confessed the offence and he was extensively cross examined,

but nothing concrete could be elicited to suspect that this

witness was deposed false and hence, there is no reason to

disbelieve the evidence of PW.11.

22. PW.12 is the Medical Doctor, who has conducted autopsy

on the dead body of the deceased. The significance of this

evidence is that the fatal injury sustained by the deceased was

cut injury to the throat and he has also deposed that in order to

cut the throat, weapon like MO3/knife seized from the appellant

could have been used. PW.13, SI of Police, has registered a case

and issued FIR. PW.14 is the investigating officer, who has

completed the rest of the investigation and filed charge sheet.

23. Basing on the evidence in the form of PWs.1 to 4, who

were present just adjacent to the scene of offence, while offence

was committed, it is clear that PWs.1 and 2 have seen the

appellant. The appellant caused the death of the deceased by

slitting the neck of the deceased on the suspicion that the

deceased was playing sorcery on his mother. The evidence of

other witnesses like mediator for scene of offence, inquest,

recovery of knife is not much relevant in either side except the

evidence of PW.14 through whom the knife was seized. The

evidence of the medical officer, who has examined the deceased

initially and also the evidence of the medical officer, who has

conducted autopsy over the dead body of the deceased and the

evidence of the investigating officer, who has done the

investigation and filed the charge sheet are also mere procedure

in nature, as the appellant has not contested the evidence of

these witnesses. The evidence of the medical officer is relevant

for the purpose that he has admitted that the injury caused to

the deceased is possible with MO3/knife.

24. It is the contention of the learned counsel for the

appellant that the evidence of PWs.1 to 4 cannot be accepted

and taken into consideration as there is no corroboration among

the prosecution witnesses and that there are lot of

contradictions.

25. It is true that there are contradictions in the evidence of

PWs.1 to 4 with reference to their previous statements recorded

under Section 161 Cr.P.C. In the cross examination, it was

elicited by PW.1 that she has not stated to the police as in

Ex.D1. Ex.D1 is a part of statement of PWs.1, which was

reduced in Telugu, is that when herself and her mother went to

the hut, her father/deceased fell in unconscious state and in

dangerous situation.

26. PW.2, who is the crucial witness for the prosecution, has

deposed in the chief examination that her husband/deceased

informed her that the accused has cut his neck. However, the

said fact is not found in 161 Cr.P.C., statement of PW.2. In the

cross examination the accused has rightly pointed out and got

the omission recorded and a suggestion was given to PW.2 that

the deceased has told her that the appellant has cut the throat

of the deceased. This omission of PW.2 cannot be of any use to

the appellant as the accused failed to confront the same to the

investigating officer/PW.14, who has recorded the statement of

PW.2. Similarly, Ex.D1 contradiction also not confronted to

IO/PW.14. Therefore, once an omission and contradiction were

recorded, the accused must put the said omission and

contradiction to the investigating officer, thereby it can be

concluded that PWs.1 and 2 were improving their statements.

27. Similarly, in the cross examination it was suggested by

the appellant to PW.3 that he did not stated in his statement

before the police that PW.1 has informed him that the appellant

has cut the neck of the deceased. But, a careful perusal of the

chief examination of PWs.3 and 4 did not depose in their

respective chief examinations that the deceased has informed

them that the accused has slit his throat. If PWs.3 and 4

deposed in the chief examination and it is not found in the 161

statement, then that part of evidence will have to be confronted

to the witness as an improvement. However, PWs.3 and 4 even

though did not depose before the Court that the deceased has

informed that the appellant has slit his throat with knife, a

suggestion was given in cross examination and the witness had

denied the same. There was no necessity for the accused to

give such suggestion which was not at all deposed to in the

chief examination.

28. Therefore, on account of non-confronting of the

contradiction and omissions to the investigating officer, lot of

prejudice, is, in fact, caused to the accused, but whatever the

witness is deposed before the Court will have to be taken by the

Court. Therefore, the contention of the learned counsel for the

appellant that there are number of contradictions among PWs.1

to 4 and also with the other statements of the witnesses cannot

be accepted.

29. PWs.1 to 4 are very close family members of the deceased.

PWs.1 is the daughter, PW.2 is the wife and PWs.3 and 4 are

the sons of the deceased. The question therefore, arises is

whether basing on the evidence of such close relatives the

conviction can be sustained.

30. In Manga Alias Man Singh vs. State of Uttarakhand1

the Hon'ble Apex Court has held at para 34 as under:

"It was contended that according to the prosecution when the accused party attacked the injured party apart from the family members of the injured party, local villagers were also present but yet, none was examined by way of independent witness. The said submission has been rightly rejected by the High Court by giving reasons. The High Court has rightly held that though the injured witnesses were related to each other, having regard to the nature of evidence tendered by them, there were no good grounds to discard their version. It has found that their evidence was natural and there was nothing to find fault with their version. It has further held rightly that it is the quality of the witness and not the quantity that matters. It has also taken judicial notice of the fact that the public are reluctant to appear and depose before the Court, especially in criminal cases because of many obvious reasons. We fully endorse the said conclusion of the High Court, while dealing with the said submission made on behalf of the appellants."

31. In the case on hand, on the fateful day at about 10.00

p.m. when the deceased was alone in his hut, the accused has

committed the offence. All neighbouring huts are also belonging

to the family members of the deceased. When there are no

other witnesses except the close family members of the deceased

at the scene of offence and when there is no enmity between the

appellant and the family members of the deceased and when

there is no other reason for falsely implicating the appellant,

there is no reason why the evidence of PWs.1 to 4 can be

1 (2013) 7 SCC 629

discarded. However, the Court is conscious that when the close

relatives of the deceased are there, there is every likelihood that

they may tend to show interestness and try to improve the case

and therefore, the evidence has to be scrutinized carefully.

32. It is contended by the learned counsel for the appellant

that there was a delay in filing the FIR. It is true that there is a

delay in filing the FIR. On the date of incident i.e., on

12.12.2011 the moment the throat of the deceased was slit at

10.00 p.m., the deceased was shifted to Government Hospital,

Rekhapally, and ultimately the deceased died at 1.00 a.m. on

the following day. Further, the complaint was filed at 9.00 a.m.

Prosecution is not depending on purely circumstantial evidence.

In all the cases where there is a delay in filing the complaint, it

cannot be concluded that the prosecution case has to be

disbelieved.

33. In a given case like this, where PWs.1 and 2 have seen the

accused running away with knife after committing the offence

and when there is no enmity between the appellant and PWs.1

and 2, then the delay in filing the complaint is not fatal. It is to

be noted that the de-facto complainant is an ill-treat person and

he was in a shock on account of death of a family member.

Therefore, delay cannot be a fatal in a case like this. It is not

the case of the appellant that the delay in filing the FIR was to

develop a story for implicating the accused. Therefore, delay in

this case is not fatal.

34. Learned counsel for the appellant has submitted that the

appellant's mother was suffering from mental health and

thereby the contention of the prosecution that the accused has

a motive to kill the deceased cannot be accepted. Admittedly,

there are no disputes between the accused persons and the

family of the deceased. It is the clear evidence of PW.2 that she

heard accused saying that the deceased has played sorcery on

his mother. Not only that, PW.2 has deposed before the Court

that the deceased has informed her that the appellant has

committed the offence of suspicion that the deceased has played

sorcery. Therefore, it cannot be said that because the mother of

the accused was suffering from mental health problem, the

motive set up by the prosecution is not proper.

35. Even otherwise, when there is clear and direct evidence in

the form of PWs.1 to 4 to show that the appellant was running

from the hut by holding a knife after slitting the neck of the

deceased, then it is immaterial that there is motive for the

appellant or not.

36. In view of the above, this Court is of the firm opinion that

the prosecution has prove the case beyond all reasonable doubt

and in the form of PWs.1 to 4 there is a material to hold that the

appellant has committed the offence by slitting the neck of the

deceased with MO3. In view of the above, the trial Court has

rightly appreciated the evidence and came to a right conclusion

and therefore, this Court is not inclined to interfere with the

judgment of the trial Court and the appeal is liable to be

dismissed.

37. In the result, the criminal appeal is dismissed confirming

the judgment dated 04.12.2013 in S.C.No.633 of 2012 passed

by the learned Judge, Family Court-cum-Additional Sessions

Judge at Khammam.

Miscellaneous applications, if any, shall stand closed.

_________________________________ SMT. JUSTICE P. SREE SUDHA

_____________________ DR. D.NAGARJUN, J Date: .11.2022 ES/AS