Andhra HC (Pre-Telangana)
Bairam Mallesham And Ors. vs State Of A.P. on 14 August, 2003
Equivalent citations: 2003(2)ALD(CRI)644, 2004CRILJ860
Author: K.C. Bhanu
Bench: Bilal Nazki, K.C. Bhanu
JUDGMENT K.C. Bhanu, J.
1. This statutory appeal under Section 374(2) of the Code of Criminal Procedure is directed against the Judgment in Sessions Case No. 602 of 1998 on the file of the IV Additional District and Sessions Judge (Fast Track Court), Karimnagar dated 27-6-2001.
2. The trial Court through the judgment under appeal convicted the appellant-accused Nos. 2, 3 and 4 for the offences under Section 302 read with Section 34 of the Indian Penal Code; Sec. 307 read with Section 34, I.P.C. and Section 323 read with Section 34, I.P.C. and sentenced each of them to undergo of imprisonment for life and to pay fine of Rs. 500/-, in default to undergo simple imprisonment for three months; rigorous imprisonment for two years and fine of Rs. 250/-, in default to undergo simple imprisonment for two months and rigorous imprisonment for three months each and to pay fine of Rs. 150/-, in default to undergo simple imprisonment for one month respectively.
3. The Inspector of Police. Peddapalle, laid a charge-sheet before the Court of the Judicial Magistrate of First Class, Sulthanabad against five accused including the appellant-accused Nos. 2, 3 and 4 alleging that the marriage of P.W. 2 with A.1 took place about eighteen years back and they were blessed with a daughter that after P.W. 2 gave birth to a daughter, A.1 started harassing P.W. 2 to bring additional dowry and, therefore, a panchayat was held in which the elders directed P.W. 1 to give Rs. 15,000/- to A.1. Thereafter P.W. 2 was sent to A.1 and they lived together for about two years and were blessed with two sons. Again A.1 demanded P.W. 2 to bring additional dowry. P.W. 1 expressed inability to pay any amount and thereafter A.1 sent P.W. 2 to her parents' house and since then P.W. 2 was living with the deceased and P.W. 1. Subsequently A.1 married another woman. P.W. 2 also filed a suit against A.1 claiming half share in the property of A.1. While the matters stood thus, on 31-8-1997 at about 3 p.m. A.1 sent a message to P.W. 2 through Rayanarasu directing P.W. 2 to come to his field so that he would give share in the green gram crop and accordingly she went there and she was separating the green gram in the field of A.1. At about 4 p.m. all the accused came to the field of A.1 and beat P.W. 2 with sticks one after another. P.W. 1 and the deceased, who were working in their fields located at a distance of 500 yards from the field of A.1, rushed there. Then A.5 instigated A.1 to A.4 to beat the deceased. Thereupon A.2 to A.4 beat the deceased. A.1 also pressed on the stomach of the deceased. When P.W. 1 intervened, she was also beaten by A.2. Thereafter P.Ws. 1 and 2 went to the Police Station, Velgatoor. P.W. 18 recorded the statement from P.W. 1 and registered a case and he also referred P.Ws. 1 and 2 to the Government hospital for examination. On the next day morning, he examined the scene of offence and examined the witnesses. He held inquest on the dead body of the decreased at about 9 a.m. and seized certain incriminating material. He observed the scene of occurrence. Thereafter the dead body was sent to the post-mortem examination. P.W. 13 conducted autopsy and opined that the deceased died due to head injury (fracture of skull and intra-cranial haemorrhage). P.W. 19 the Inspector of Police took up further investigation, arrested the accused 2 to 4 and recovered three sticks in pursuance of their confessional statements and sent the material objects to the Forensic Science Laboratory, Hyderabad and after completion of investigation P.W. 19 laid the charge-sheet.
4. Charges under Section 302 read with Section 34, I.P.C. against A.2 to A.5; Section 302, I.P.C. against A.1; Section 307 read with Section 34, I.P.C. against A.2 to A.5; Section 307 read with Section 109, I.P.C. against A.1; Section 324, I.P.C. against A.2 and A.3; Section 324 read with Section 34, I.P.C. against A.4 and A.5; Section 324 read with Section 109, I.P.C. against A.1; Section 506, I.P.C. read with Section 34, I.P.C. against A.2 to A.5 and Section 506 read with Section 109, I.P.C. against A.1 were framed and the charges were read over and explained to the accused to which they pleaded not guilty.
5. On behalf of the prosecution P.Ws. 1 to 19 were examined and Exs. P.1 to P.31 were marked besides case properties M.Os. 1 to 7. The lower Court after considering the evidence on record came to the conclusion that A.2 to A.4 shared common intention in killing the deceased and, therefore, they were found guilty under Section 302 read with Section 34, I.P.C. so also they were found guilty for the offence under Section 307 read with Section 34, I.P.C. and further A.2 to A.4 were also found guilty for the offence under Section 323 read with Section 34, I.P.C. and accordingly as aforesaid they were convicted and sentenced. A.1 and A.5 were found not guilty for the charges levelled against them and they were acquitted of the charges by the trial Court.
6. The learned counsel for the appellants-accused contends that except the interested testimony of P.Ws. 1 and 2 there is no other evidence on record to show that the accused are the assailants of the deceased and that P.Ws. 3 to 8 did not support the case of the prosecution. It is further contended that having given the benefit of doubt to A.1 and A.5 the lower Court ought to have extended the same benefit to A. 2 to A.4 also and that the evidence of P.Ws. 1 and 2 cannot be termed as wholly reliable and truthful as they falsely implicated A.1 and A.5 also and their evidence has to be disbelieved in toto and that there was no motive for the accused to commit the offence. As P.W. 2 filed a suit against A.1 for partition of the property there is no need for her to come to the land of A.1 for collecting her share in the crop and hence he prays to set aside the conviction and sentence passed by the lower Court.
7. On the other hand the learned Public Prosecutor contends that P.Ws. 1 and 2 are the injured eye-witnesses and their presence at the time of the incident is quite natural and convincing. They sustained head injuries at the hands of appellants and that immediately within two or three hours after the incident Ex. P. 1 was lodged with police and shortly thereafter P.Ws. 1 and 2 were referred to Hospital and the doctor examined them. Therefore, the question of false implication of the appellants in the case does not arise and that the death of the deceased was homicidal. She further contends that when the accused caused injuries with sticks on the head portion of deceased, the common intention of the appellants can be inferred and, therefore, the lower Court rightly convicted the appellants and there are no grounds to interfere with the conviction and sentence passed by the lower Court.
8. P.W. 2 is no other than the wife of A.1. P.W. 1 and the deceased are the parents of P.W. 2. The marriage of P.W. 2 with A.1 took place about 18 years back. They lived for some time and P.W. 2 gave birth to a female child by name Suvarna. As A.1 was badgering P.W. 2 to bring additional dowry a panchayat was held in which P.W. 1 was directed to give an amount of Rs. 15,000/-to A.1 and thereafter they lived together for two years and were blessed with two male children. Again A.1 pestered P.W. 2 to bring additional dowry. When P.W. 1 and deceased expressed their inability P.W. 2 was sent to her parents house and she started living with the deceased and P.W.1. These aspects are not in dispute. Further, P.W. 13 the doctor-conducted autopsy on the dead body of the deceased at 2 p.m. on 1-9-1997. Ex. P.9 is the post-mortem certificate. As seen from Ex. P.9 the deceased sustained as many as ten injuries. There was a fracture of skull and intra-cranial haemorrhage and the cause of the death of the deceased was due to shock and haemorrhage. The evidence of P.W. 13 and the recitals in Ex. P.9 remain unchallenged. The injuries 1 to 4 as mentioned in Ex. P.9 were grievous in nature and the death of the deceased as stated by the prosecution witnesses is established beyond reasonable doubt. Therefore, the homicidal death of the deceased is established.
9. The case of the prosecution is that on 31-8-1997 A.1 sent a word to P.W. 2 stating that he would give a share in the crop. Believing him P.W. 2 went to the field of A.1 and started separating green gram in the field of A.1. At about 4 p.m. A.3 came there and informed P.W. 2 that she was not having any share and then an altercation took place. In that altercation A.3 smote P.W. 2 with a stick on her head as a result she sustained bleeding injury. On seeing the same the deceased and P.W. 1 came there. A.2 and A.4 mauled the deceased with sticks more particularly A.2 and A.3 on the head of the deceased with sticks. P.W. 1 intervened; A.2 mangled her on her head. Thereafter all the injured witnesses and some others went to the police station in the auto of P.W. 9. P.W. 18 was present in the police station. When P.W. 2 and others went to the police station at 6 p.m. on 31-8-1997 he recorded the statement from P.W. 1 and registered a case in Cr. No. 66 of 1997 for the offences under Sections 148, 302, 324 read with Section 149, I.P.C. and referred P.Ws. 1 and 2 to the Government Hospital for treatment. P.W. 14 the doctor examined P.W. 1 at 7 p.m. on the same day and found laceration on scalp measuring 2" x 1" x scalp deep over the right parietal region and issued Ex. P. 10 wound certificate. He also examined P.W. 2 at 7 p.m. and found multiple scalp lacerations all over the head i.e. more than six in number which are of different sizes, shapes over different parts of the head and issued Ex. P. 11 wound certificate. He stated that these injuries can be caused about 5 to 6 hours prior to his examination. Though he stated that he examined both the witnesses at 7 a.m. on 31-8-1997 but that appears to be a mistake on his part. It must be 7 p.m. because by 7 a.m. the incident had not taken place. It is the contention of the learned counsel for the appellants that P.Ws. 1 and 2 are interested witnesses and their evidence is not corroborated with any other evidence. In case an eye-witness is related or even interested it becomes the duty of the Court to scrutinize his statement with great care and caution. One cannot ignore the fact that the relatives present at the scene of occurrence are the only natural available witnesses present at the time at the scene of occurence as new unconnected persons are often cool or hesitant to appear as witnesses before the Court. Merely because the evidence of independent witnesses is available the evidence of the so-called interested witnesses cannot be rejected outright if they are natural witnesses and if their evidence is truthful, credible , and inspires confidence. The other independent witnesses P.Ws. 4 to 6 did not at all support the case of the prosecution, but P.W. 3 supported the case in part. P.Ws. 7 and 8 though did not speak about the actual occurrence but they spoke about the presence of the deceased and P.W. 2 when they went to the scene of occurence. Admittedly, as seen from the evidence of P.W. 14, both the injured sustained head injuries. Before accepting and relying upon the evidence of an injured witness, it has to be closely scrutinized and such evidence has to be examined from the following angles :
1. Whether the alleged injury was received in the course of the same transaction of incident only?
2. Whether the accused was previously known to the injured if not whether the accused was distinctly described in 162 Cr. P.C. statement?
3. Whether there was sufficient light at the time and place of the incident to identify the accused?
4. Whether the injury found on the person of the witness rules out a case of self-inflicted injuries?
If the above circumstances are established then the evidence of the injured witnesses is entitled to be given weight. An injured witness in any case would not easily substitute a wrong person as actual assailant but his evidence should be scrutinized for applying the test of probability. In case the testimony of such a witness is found acceptable on its own and there being no inherent infirmities found in it there would be no need to seek for corroboration from any independent quarters.
10. The incident took place in a broad day-light at about 4 p.m. and so the question of false or mistaken identity may not arise. Furthermore, all the accused are closely related as A.1 is no other than the husband of P.W. 2. The scene of occurrence is situated in the land of A.1. There is also no dispute about the scene of occurrence which is situated in the land of A.1. It is not specifically suggested to P.Ws. 1 and 2 that the incident as spoken to by them had not taken place in the field of A.1. Even though P.W. 3 did not support the case of the prosecution totally, but to some extent his evidence is clear that an incident had taken place in the field of A.1. P.Ws. 7 and 8 though did not support the case of the prosecution their evidence is also clear that at about 4 p.m. they went to the field of A.1 on hearing some clamorous sound from the field of A.1, and found Gattatah died and P.W. 2 was present. The scene of occurrence was also observed by P.W. 18 in the presence of inquest mediators and a rough sketch was also drawn. P.W. 16 took photographs of the scene of occurrence including the dead body of the deceased. He has stated that he had taken photographs at the field of A.1. The overwhelming evidence on record it would clearly go to show that the incident in question had taken place in the field of A.1.
11. Now it has to be seen whether the accused are the assailants of the deceased and they had any motive for causing the death of the deceased. Normally there is a motive behind every criminal act. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. However, the absence of motive or non-proof of motive does not always create a doubt on the prosecution case if the evidence produced is otherwise considered reliable and trustworthy. Further motive loses its significance when there are eye-witnesses to the occurrence whose evidence is trustworthy.
12. Though there was no immediate motive for the accused to commit the murder of the deceased, but an altercation had in fact taken place in the land of a A. 1 when P.W. 2 was separating green gram in the field of A.1. So, in the altercation the accused took advantage of the situation and beat P.W. 2 in the first instance and when the deceased and P.W. 1 intervened, they were also beaten. Within two hours of the incident the earliest version of the incident has been clearly stated in Ex. P. 1 and the recitals 411 Ex. P1 would go to show that on 31-8-1997 when the daughter of the informant went to the land of her son-in-law, and when her daughter (P.W. 2) was asking her share of green gram, her son-in-law beat her with a stick on her back; that on seeing the same herself and her husband caused enquiry with A.1 at 4 P.M. and at that time A.2 to A. 4 along with their father attacked the deceased and killed him on the spot, that her daughter sustained head injuries and P.W. 1 also sustained injuries at the hands of the accused. The main fabric of the prosecution case as stated in Ex. P 1 which was given within two hours after the incident, is completely in corroboration with the evidence of P.W. 1. Within one hour thereafter P.Ws. 1 and 2 were examined by P.W. 14 the doctor and by seeing the nature of injuries it cannot be said that those injuries on P.Ws. 1 and 2 were self-inflicted. It is not the case of the accused that P.Ws. 1 and 2 sustained injuries somewhere else in some other manner or that they were self-inflicted. The fact that they sustained injuries is not specifically denied nor disputed in the cross-examination. The presence of injuries on P.Ws. 1 and 2; lodging of first information report within two hours after the incident and examination of the injured by the doctor within one hour thereafter would clearly indicate that they were telling the truth. There was no time-gap so as to concoct or fabricate a false case against the accused. Therefore, the presence of P.Ws. 1 and 2 at the relevant point of time is established beyond doubt. There is no reason for us to disbelieve the version of P.Ws. 1 and 2 with regard to their sustaining injuries.
13. According to P.W. 1, all the accused beat P.W. 2 in the first instance and P.W. 2 sustained bleeding injuries. Then the deceased went there to rescue his daughter. At the instance of A.5, A. 3 beat the deceased with a stick on the head and beat the deceased with a stick on the neck and A.4 beat the deceased with a stick on his back. A.1 pressed the stomach of the deceased with his left hand. When P.W. 1 intervened, A. 4 instigated the other accused to beat her and accordingly A. 2 beat her with a stick on her head. The evidence of P.W. 2 would go to show that when she was separating the green gram A. 3 beat her with stick on her head and as a result she sustained bleeding injuries. On seeing the same, the deceased came there and A. 2 to A. 4 beat her father with sticks particularly A. 2 beat her father with stick on neck and A.3 beat her father with a stick on the head as a result her father died on the spot. When P.W. 1 intervened, she was also beaten by A.2. This part of the evidence of A. 2 and A. 3 beating the deceased also lends corroboration from the evidence of P.W. 3 who partly supported the case of the prosecution.
14. According to P.W. 3, he saw A. 3 beating Gattaiah with stick and also A. 2 and A. 3 beating Gattaiah on his neck and A. 3 beating P.W. 1 with a stick on his head. Simply because he turned hostile, it does not mean his evidence will be obliterated from record. It is settled law that the evidence of hostile witness, which inspire confidence can be used to corroborate the other reliable evidence. Therefore, to some extent the evidence of P.W. 3 is in corroboration with the evidence of P.Ws. 1 and 2 insofar as the participation of A. 2 and A. 3 is concerned. A part of the testimony of P.Ws. 1 and 2 is disbelieved by the learned Sessions Judge insofar as A. 5 instigating the other accused to beat the deceased and also the presence of A.1 at the time of the incident. On this ground the learned counsel vehemently contended that the lower Court committed a serious error in placing reliance on part of testimony of P.Ws. 1 and 2 and he contended that the entire testimony of P.Ws. 1 and 2 must be rejected as a whole on the principle of maxim "Falsus in Uno Falsus in Omnibus". We regret our inability to accept the contention of the learned counsel. In a situation like this, it is the duty of the Court to closely scrutinize the statement and if possible separate falsehood from truth. The Court has to sift the evidence with great care and caution on consideration of all the relevant material circumstances to come to a decision, which part of the testimony of a witness to accept and which to reject. Furthermore, it is well established that the said maxim is not a sound rule to apply in the conditions of our country.
15. The reasons for disbelieving the evidence of P.Ws. 1 and 2 insofar as the participation of A.1 and A. 5 with regard to murder is concerned are that P.W. 1 did not state before the police that A. 5 instigated the other accused to beat the deceased. Even though A. 5 was present at the scene of offence it is not stated in Ex. P. 1. It was also not stated that A. 5 instigated the other accused to kill the deceased. In so far as the A.1 is concerned, P.W. 2 specifically stated that she had not seen A.1 at the time of beating her or at the time of beating her father by A. 2 to A. 4. Furthermore, she did not speak about the presence of A.1 at all in her evidence. P.W. 3 also did not speak the presence of A.1, A. 4 and A. 5 but he went to the scene of occurrence when the attack was going on. Therefore, the first accused was not present at the time of the incident. Therefore, the lower Court rightly acquitted him. A. 5 was not armed with any weapon and P.W. 2 did not state any specific overt acts against A. 5 whereas P.W. 1 stated that A. 5 instigated the other accused to beat her and the deceased. But that is clearly an improvement because the said fact was not stated before the police nor in the earliest statement in Ex. P. 1 P.W. 2 is the best person to state about the presence of the accused as she was separating the green gram for one hour prior to the occurrence. At a later point of time P.W. 1 went there. Further, the evidence of P.W. 1 to the extent that A.1 pressed on the stomach of the deceased with a left leg is not stated in the earliest version in Ex. P. 1. If falsehood is so inextricably mixed with truth that it is not possible to disassociate the two from each other, only then the entire statement needs to be rejected. In case, however, it is possible to disengage the grains of real from the chaff of deception and lies, then the Court must undertake that exercise for doing justice. The overt acts were specifically atributed to A. 2 to A. 4 in causing injuries on the neck and head of the deceased with sticks and also on the heads of P.Ws. 1 and 2. So also specific overt acts are also attributed against A. 3 for causing injuries to P.W. 2 and against A. 2 for causing injuries to P.W. 1. Therefore, from their evidence it can be safely held that A. 2 to A. 4 were the assailants of the deceased, P.Ws. 1 and 2. Their evidence inspires confidence and their presence at the scene of occurrence is established beyond all reasonable doubt. The land of P.W. 1 and the deceased is situate at a distance of five hundred yards from the land of A.1 and therefore on hearing the cries there is every possibility for P.W. 1 and the deceased to go to the field of A.1 to rescue P.W. 2. Immediately after the incident P.W. 2 and the deceased were seen with injuries by the doctor P.W. 8. So also the evidence of P.W. 7 would go to show that P.W. 1 and P.W. 2 were found lying with injuries and the deceased was found dead in the field of A.1. P.W. 9 is the person who took P.Ws. 1 and 2 to the hospital in his auto-rickshaw. All these circumstances would go to show that A. 2 to A. 4 were the assailants of the deceased.
16. With regard to the seizure of M.O. 7 sticks three in number in pursuance of the confessional statements of A. 2 to A. 4 in the presence of P.W. 15 and P.W. 17 they were not identified by P.Ws. 1 and 2 as the weapons of offences used by A. 2 to A. 4 in the commission of offence. They did not contain any blood stains as per Ex. P. 29 serologist report. Therefore, the seizure of sticks cannot be said to be an incriminating circumstance against the accused. After considering the evidence on record the lower Court rightly convicted the appellants-accused and there are absolutely no grounds to interfere with the conviction and sentence passed by the lower Court.
17. In the result, we confirm the conviction and sentence awarded by the Court below against the appellants-accused 2 to 4 and we accordingly dismiss the criminal appeal.