Andhra Pradesh High Court - Amravati
S. Riyakath Basha, Anantapur Dt. vs State Of A.P.,Rep. By P.P. on 1 February, 2022
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
CRIMINAL APPEAL No.1067 of 2014
JUDGMENT:(Per Hon'ble Sri Justice C. Praveen Kumar) Heard and perused the record.
2. The present appeal came to be filed against the Judgment dated 20.08.2013 in S.C.No. 251 of 2013 on the file of the Court of the Additional Sessions Judge, Hindupur, Anantapur District, whereby the sole accused was convicted and sentenced to undergo rigorous imprisonment for life and also to pay the fine of Rs. 2,000/- for the offence under Section 302 of Indian Penal Code (in short, 'I.P.C').
3. The facts in brief are that the deceased is Junior Paternal Aunt of PW-1 and wife of accused. Smt. Nasima is the mother of the deceased. One Jabbar Basha, who is junior paternal uncle of PW-1 had three sons. The accused is the second son. About 5 years prior to the incident, the accused married the deceased, who belongs to Nallamada Village in Anantapur District. After marriage both of them left from Penukonda. Accused used to eakout his livelihood by selling flower and fruit plants in Nallamada Village. Later both of them came to Penukonda. When PW-1 questioned about their shifting to Penukonda, the accused replied stating that if they continue to this at Nallamada Village, the deceased may get addicted to bad vices and as such they came down to Penukonda. As their house was under repair, the accused and deceased were asked to stay in the house of PW-1.
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4. On the intervening night 05/06.12.2012, PW-1, his wife and children along with his parents and sisters were sleeping in the hall and the accused and his wife and children were sleeping in the bed room. In the midnight at about 1.00 a.m, PW-1 heard sound from the bed room. When PW-1 and others tapped the doors, the accused opened the door with blood stained axe in his hand. He confessed to have killed his wife. When they tried to apprehend him he threatened to kill them and ran away with axe. PW-1 went inside the room and when asked the deceased she informed him that the accused hacked her with axe suspecting her fidelity.
5. On 06.12.2021, while PW-8 was on beat checking duty, he received a phone call from S.H.O, Penukonda relating to a murder case. Immediately, PW-8 rushed to the Police Station and received the report from PW-1 and registered the same as a case in Crime No. 155 of 2012 under Section 320 of I.P.C. Ex.P1 is the report and Ex.P7 is the F.I.R. PW-9 who is Inspector of Police continued with the Investigation, on receipt of copy of F.I.R. He visited the Scene of offence, seized the Material Objects, prepared rough sketch and obtained photographs of the scene of offence. He examined the scene of offence in the presence of PW-4. Ex.P9 is the Rough Sketch. Ex.P8 is the bunch of three photos. Observation Report is marked as Ex.P2. Thereafter, he gave a requisition to the Mandal Revenue Officer to conduct Inquest over the dead body. PW-9 again visited the Government Hospital, Penukonda and conducted Inquest over the dead body from 8.00 A.M to 10.30 A.M in the 3 presence of Inquest Panchayatdars and examined them. Thereafter dead body was sent for postmortem examination.
6. PW-5, who is Civil Assistant Surgeon, Community Health Center, Penukonda conducted autopsy over the dead body of the deceased Shaimk Reshma and found injuries. According to him, the cause of death was due to shock and hemorrhage, on account of injury to organ like brain. He further states that all injuries are possible with a sharp edged weapon like axe.
7. In the course of investigation, PW-9 arrested the accused on 19.12.2012 and recorded his statement. Ex.P5 is the relevant portion of the confession statement. Two ten rupee notes were seized from the shirt pocket of the accused. Pursuant to the confession made by the accused, axe used in the commission of the offence and lungie worn by him, at the time of offence were discovered from the thorny bushes at Chakrabavi. PW-9 examined the said place and also prepared Ex.P10 a rough sketch. From there, accused took all of them to actual crime scene, where the crime scene was reconstructed under Ex.P11. After collecting all necessary material a Charge Sheet came to be filed.
8. On perusal of the record, it appears that, copies of the documents were furnished under Section 207 Cr.P.C and thereafter committed the case to the course of Sessions under Section 209 Cr.P.C, where it was made-over to the Additional District Judge, Hindupur.
9. In support of the case, the prosecution examined PWs 1 to 9 and got marked Ex.P1 to 12. After completion of the prosecution 4 evidence, the accused was examined under Section 313 Cr.P.C with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, to which he denied. Though no oral evidence was adduced, he got marked Ex.B1.
10. Basing on the evidence of PWs 1 to 3 coupled with the oral declaration of the deceased, the trial court convicted the accused, challenging the same the present appeal came to be filed through legal aid.
11. Mr. B. Parameswara Rao, learned counsel for the appellant submits that there are no eye witnesses to the incident and the circumstances relied upon do not connect the accused with the crime. He further submits that even as per the evidence of PWs 1 to 3, there were no disputes between the accused and the deceased prior to the incident and hence it is very difficult to believe that accused would have caused the death of the deceased. He further submits that there is any amount of doubt, as to the oral Dying Declaration made by the deceased. The evidence of the Doctor does not indicate that a person receiving an injury on head would be in a position to give a statement.
12. On the other hand Mr. Dushyanth Reddy, Learned Public Prosecutor opposed the same, contending that not only the oral dying declaration of the deceased made before PWs 1 and 2 but the fact that both of them were in one room itself is sufficient to convict the accused. In other words the learned Public Prosecutor would contend that the evidence of PWs 1 and 2 would 5 disclose the presence of accused and deceased inside the room and on hearing the cries, they noticed the accused coming out with blood stained axe and cloths. Having regard to the above fact, he would submit that the prosecution has proved its case beyond all reasonable doubt.
13. The point that arises for consideration is whether the prosecution has proved its case beyond all reasonable doubt?
14. In the instant case the facts disclosed that ten days prior to the incident accused along with wife came to Penukonda from Nallamada Village and wanted to stay at Penukonda as he suspected the fidelity of the deceased and that she would get addicted to bad vices if they at Nallamada. As the house of the accused was not ready by then, PWs 1 and 2 allowed them to stay in their house.
15. On a fateful day i.e on 05.12.2012 the accused, deceased and their children were sleeping in one room, while PW 1, his wife, children, father, brother and sisters were sleeping in the hall of his house. During midnight, the accused opened the bedroom. On enquiry it was informed that he intending to go out for urination. After some time he came back into his bed room and closed the room. At about 1.00 A.M they heard some noise. On hearing cries of the deceased, PWs 1 and 2 woke up and knocked the door of the bed room. Sometime later the accused opened the door and on enquiry he said that he killed the deceased by hacking her with an axe. PW-1 noticed the axe with blood stains and accused threatening to kill them if they try to apprehend him and ran away. 6 PWs 1 to 3 went inside the room, where the deceased was found with bleeding injuries) When they asked as to what had happened, the deceased replied that the accused hacked her with axe suspecting her fidelity. Thereafter she was shifted to Government Hospital, Penukonda, where the doctor declared her dead.
16. All the above facts were spoken by PWs 1 and 2 in their chief examination. Though cross examined nothing useful came to be elicited to discredit their testimony. All the suggestions given with regard to Ex.P1 report and also deceased making oral dying declaration to them were denied.
17. PW-3 is a independent witness, who in her evidence deposed that he heard galata sounds from the house of PW-1, which is opposite to his house. On hearing the galata, he woke up and went to the house of PW-1, by then PW-1 and family members were present. On knocking of the door, the accused opened the door and noticed the accused with an axe in her hand. He went inside the room and noticed injuries on the face of the deceased. Their children were crying. He further states that he along with others tried to catch hold of the accused, but he threatened them to kill and asked them not to come near him and then ran away with the axe. PW-3 was also cross examined, but no incriminating material is elicited to doubt his version. On the other hand it was elicited there is a distance of 15 to 20 ft., from the house of PW-1.
18. At this stage, learned counsel for the appellant having drawn the attention of this court to the cross examination of PW-5, Doctor submits that in view of the injuries sustained by the 7 deceased it is very difficult to believe that the deceased would have made oral dying declaration.
19. On perusal of the evidence of PW-5, five external injuries were found over the body of the deceased viz.,
1. 4x2x1 cms size of incised over right side of fore head.
2. 4x1x2 cms size of incised wound over left and right side of occipital area.
3. 4x0.5x2 cms incised wound over right maxillary area.
4. Cut injury over right thumb.
5. 4x2 cms size of contusion over right shoulder.
20. The evidence on record does not disprove the usage of the weapon in commission of the weapon. The cause of death due to the injuries sustained by the deceased with axe cannot be found fault. The doctor was not clear in answering the same, he says due to above external injuries, the deceased may or may not be able to speak. Therefore the argument of the learned counsel for the appellant that the deceased could not have made a statement at all cannot be accepted.
21. Be that as it may, the facts as stated earlier clearly show that the accused and deceased along with children were in one room while PWs 1 and 2 and their family members including the brothers and sisters of PWs 1 and 2 were sleeping in the hall, which is next to the bed room. Rough sketch of the scene of the offence would show that one has to pass through the said room to go out.
22. The fact that the dead body was lying with cut injuries on the head is also not in dispute. It is also not in dispute that 8 after knocking the door, after some time the accused came out with blood stained axe and when PWs 1 to 3 tried to catch hold of the accused, he ran away. In the absence of any explanation given by the accused coupled with the fact that the accused and deceased were in one room on that night, which was locked inside, we hold that evidence of PW-1 to 3 clearly establish the guilt of the accused. Hence the findings of the trial court warrant no interference and the appeal is liable to be dismissed.
23. Accordingly the appeal is dismissed, confirming the sentence dated 20.08.2013 in S.C.No. 251 of 2013 on the file the Court of the Additional Sessions Judge, Hindupur, Anantapur District.
__________________________ C. PRAVEEN KUMAR, J ____________________________ Dr. K. MANMADHA RAO, J Date :01.02.2022 KK 9 THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE DR.JUSTICE K. MANMADHA RAO CRIMINAL APPEAL No.1067 of 2014 Date :01.02.2022 KK