Andhra Pradesh High Court - Amravati
M. Raghunadha Naidu, Another, vs The State Of Ap Rep By Its Pp Hyd., on 18 September, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
1
THE HON'BLE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
CRIMINAL APPEAL No. 1205 of 2012
JUDGMENT:(Per Hon'ble Acting Chief Justice C.Praveen Kumar)
1) Originally, the Accused Nos. 1 to 5 were tried in Sessions Case No. 189 of 2012 on five [05] Charges. The first charge was for the offence punishable under Section 302 of Indian Penal Code ["IPC"] against Accused Nos. 1 and 2 and they were found guilty and sentenced to undergo 'imprisonment for life" and to pay a fine of Rs.3,000/- in default to suffer simple imprisonment for one month. The second charge was for the offence punishable under Section 302 read with Section 34 of IPC against Accused Nos. 3 to 5. They were found not guilty and acquitted of the said charge. The third charge was under Section 324 of IPC against Accused No. 1 for causing injuries to PW1. He was found guilty and was sentenced to undergo rigorous imprisonment for one year. The fourth charge was for the offence punishable under Section 324 read with Section 34 of IPC against Accused Nos. 2 to 5 for causing hurt to PW1, in which, Accused Nos. 3 to 5 were found not guilty and were acquitted of the said charge, whereas, Accused No. 2 was found guilty and was sentenced to undergo rigorous imprisonment for one year. The fifth charge was for the offence punishable under Section 452 of IPC HACJ&MSM,J Crl.A.No.1205 of 2012 2 against Accused Nos. 1 to 4, in which, Accused No. 3 and 4 were found not guilty and were acquitted of the said charge, while, Accused Nos. 1 and 2 were found guilty for the said offence and were directed to suffer rigorous imprisonment for three years and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for fifteen days. All the substantive sentences were directed to run concurrently.
2) The substance of the charge against the accused is that, on 31.07.2011 at about 11.30 AM, the accused trespassed into the house of deceased in Muthavandlavuru Village and caused his death in the process, the Accused Nos. 1 and 2 also caused injures to PW1.
3) The case of the prosecution as culled out from the evidence is as under:-
(i) PW.1 is the father and PW.2 is the wife of the deceased. PW3 is the natural brother of PW1. PW.5 is the son of PW.3. Accused No. 1 is a resident of Muthavandlavuru village, D.G. Nellore mandal, while the other accused are residents of different places. It is said that the deceased along with Accused Nos. 1 and 2 were doing commission business in real estate. Disputes arose between them, as a result of which, the deceased left the business two years prior to the incident.
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(ii) About two years prior to the present incidence, the deceased went to bus stand to fetch his son. At that time, Accused Nos.1 and 2 and others kidnapped him and took him to Tamil Nadu. After obtaining his signatures on blank papers, brought him back to his village and left him. Consequently, a report came to be lodged by daughter-in-law of PW.1, which case is still pending trial. Even thereafter, the Accused Nos. 1 and 2 continued to threaten the deceased with dire consequences, if he fails to pay Rs., 5,00,000/-. The deceased being afraid of Accused Nos. 1 and 2 used to stay in his in-laws' house at Narayanapuram, coming now and then to the house of PW.1 house. It is said that Accused Nos. 1 and 2 were threatening the deceased even through phone.
(iii) While things stood thus, on 31.07.2011 at about 11.00 AM, the deceased accompanied by his two friends from Tirupati, came to his house and were chit-chatting. At that time, the daughter-in-law of the deceased was in the house. P.W.1 noticed that Accused Nos. 1 and 2 coming into their house armed with knives. He also noticed two persons standing at the gate of their house. According to PW.1, who is an eye witness to the incident. Accused No. 1 was armed with 'Machu Kathi' (Bill Hook) while Accused No. 2 was armed with 'Patta Kathi'. After entering the house, the Accused No. 1 tried to hack the deceased, but, when he raised his left hand to ward off the blow, sustained a cut injury on the left wrist. When PW.2, who is the HACJ&MSM,J Crl.A.No.1205 of 2012 4 daughter-in-law of PW.1, tried to interfere, she was pushed away and thereafter when Accused No.1 tried to hack the deceased, he raised his right hand, as a result of which, he received injury on his right forearm. At that point of time, Accused No. 2, who was armed with Patta Kathi, hacked on the chin causing cut injury on the throat. When PW1 tried to interfere, Accused No. 1 hacked him with billhook on left arm causing bleeding injury. Accused No. 1 again hacked the deceased twice on the throat/neck. On receiving the said injuries, the deceased fell down. After he fell down, the accused again hacked the deceased with a knife on the throat. Thereafter, the Accused Nos. 1 and 2 left the house threatening PW1 with dire consequences if he lodges a report.
(iv) On coming to know about the incident, PW.4 -MPTC came to the house of PW.1 at 12.30 PM and scribed the report, which is placed on record as Ex., P1. On the same day at 1.00 PM, one K.Babu, Sub-Inspector of Police, G.D. Nellore, received Ex. P1 from PW.1. Basing on its strength, a case in Cr. No. 99/2011 came to be registered under Sections 449, 302, 324, 506 read with Section 34 of IPC. Ex. P10 is the FIR.
(v) On receiving information about registering of crime from Police Station, G.D. Nellore, PW.14 - Inspector of Police, immediately proceeded to the Police Station, G.D. Nellore, obtained a copy of Ex.,P10 and then proceeded to the house of PW1 and the deceased.
HACJ&MSM,J Crl.A.No.1205 of 2012 5 In the presence of PW.9 and two other panchayatadars, he conducted inquest over the dead body of the deceased in their presence. Ex.P3 is the Inquest Report. During inquest, he examined PW.1 to PW.4 and others. He also got prepared a panchanama of the scene, which is marked as Ex.P5. During the said process, he seized MOs., 4, 5, 6, 8, 9, 10 and 11. He also got prepared rough sketch of the scene of offence, which is placed on record as Ex.P11. After completing the inquest, he sent the dead body to the Government Headquarters Hospital, Chittoor for postmortem examination. PW.13- the Civil Assistant Surgeon, Government Headquarters Hospital, Chittoor, conducted autopsy over the dead body of the deceased. Ex. P9 is the post-mortem certificate. According to him, "the deceased appear to have died due to excessive haemorrhage, injury to the vital organs like brain with asphyxia, hypovoluemic shock".
(vi) At this stage, it is also to be noted that, on 31.07.2011 at 7.15 PM, P.W.1 was examined by PW.10- Civil Assistant Surgeon, Government Headquarters, Chittoor and issued Ex.P6 Wound Certificate. PW.10 noticed an injury "Abrasion over dorsum of left forearm near left elbow joint 2 x .5cm in size".
(vii) On 18.8.2011, PW.14 arrested Accused Nos. 1 to 4 on Chittoor-Kanipakam cross road and pursuant to their confession, Accused Nos. 1 and 2 led the raid party to the sugarcane garden of HACJ&MSM,J Crl.A.No.1205 of 2012 6 PW.7, from there they discovered MOs. 1 and 2, which were seized under Ex.P5. On 30.8.2011, Accused No. 5 surrendered before the Committal Court. After collecting all the necessary documents and examining all the witnesses, a charge-sheet came to be file before the court of IV Additional Judicial Magistrate of First Class, Chittoor, which was taken on file as PRC No. 106/2011. On appearance of the Accused, copies of the documents were furnished as required under Section 207 Cr.P.C. As the case is exclusively triable by a Court of Sessions, the same was committed to the District and Sessions Judge, Chittoor, under Section 209 Cr.P.C. On appearance of the accused, charge-sheet referred to above came to be framed, read over and explained to the Accused to which, the accused pleaded not guilty and claimed to be tried.
4) In support of its case, the prosecution examined PWs.1 to 14 and got marked Exs. P1 to P15 and MOs.1 to 16. After the closure of entire prosecution evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them, in the evidence of the prosecution witnesses. Though, the accused denied the same, they did not adduce any evidence on their behalf.
5) Relying upon the evidence of PW.1 to PW.3, the learned Judge convicted the Accused Nos. 1 and 2 for the offence punishable under Section 302 of IPC and accordingly, sentenced them to suffer HACJ&MSM,J Crl.A.No.1205 of 2012 7 imprisonment for life and to pay a fine of Rs.3,000/- in default to suffer simple imprisonment for one month. The Accused Nos. 1 and 2 were also found guilty for the offence punishable under Section 324 read with Section 34 of IPC and were sentenced to undergo rigorous imprisonment for one year each. Also, the Accused No. 1 and 2 were convicted for the offence punishable under Section 452 of IPC and were sentenced to undergo rigorous imprisonment for a period of three years and pay a fine of Rs.1,000/- in default to suffer simple imprisonment for fifteen days. Challenging the same, the present appeal came to be filed by Accused No. 1 and 2.
6) Sri. T. Pradyumna Kumar Reddy, the learned counsel for the appellant/accused No. 1 would submit that the evidence available on record is not sufficient to convict the accused. According to him, no motive has been established to show the reason for the attack by the accused. Even the motive which is spoken by PW.1 is not proximate and no documentary evidence is adduced in support of the same. He further submits that an adverse inference has to be drawn against the prosecution for not examining one Rupesh, whose name figured in FIR. According to him, if the said Rupesh was examined, the truth would have come out as he is an independent witness. He would further contend that the medical evidence and recovery of MOs. are doubtful.
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7) Learned counsel for accused No.2 would submit that there is any amount of doubt with regard to the presence of P.Ws.1 to 3 at the scene of offence and witnessing the incident. He would further submit that no independent witness was examined and no effort was made to secure their presence and record their statements. According to him, they would have been the best persons to speak to the incident. He would further submit that taking into consideration the nature of the injury sustained by P.W.1, it cannot be said that he received those injuries in the attack at the time of incident proper and, in all probabilities, the said injury can be either a self-inflicted or sustained in some other transaction. P.W.1 was planted as an injured eyewitness to strengthen the false case projected by the prosecution.
8) Referring to the evidence of P.W.3, learned counsel for A2 would contend that his name was not reflected as eyewitness in Ex.P1-FIR and the trial Court erred in relying on the evidence of P.W.3 as a corroborative piece of evidence to P.Ws.1 and 2.
9) The learned Public Prosecutor opposed the said contention and would submit that all the three witnesses were present at the scene of offence. Nothing useful was elicited in their cross-examination to discredit their testimony. On the other hand, the answers given by them in the cross-examination would go to establish that they were present at the scene of offence.
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10) The learned Public Prosecutor while opposing the same would contend that when the evidence of an injured witness is available, motive lose significance. If the evidence of an injured is believed, he would submit that the court can base its conviction on the said evidence. Even otherwise, he would submit that the evidence of PW.1 gets corroboration not only from the evidence of PW.2, PW.3, PW.5, but also from medical evidence. He took us through the evidence of these witnesses in support of his pleas. He further submits that the prosecution has proved the guilt of the accused beyond reasonable doubt and hence there are no grounds to interfere with the judgment of the trial Court.
11) The point of consideration is whether the evidence available on record is sufficient to establish the presence and participation by the Accused No. 1 in the commission of offence?
12) PW.1 is an injured eye witness to the incident. According to him, about two years prior to the incident, disputes arose between Accused No. 1 and 2 and the deceased when they were doing business in land dealings. As a result of the same, the deceased left the company of Accused No. 1 and 2. His evidence further discloses that, sometime, thereafter, on one day, when the deceased went to bus stand to fetch his son, Accused Nos. 1 and 2 kidnapped him and took him to Tamil Nadu. After obtaining his signatures on blank papers, they brought him to the village and left. In respect of the HACJ&MSM,J Crl.A.No.1205 of 2012 10 said incident, a report came to be lodged by PW.2 before G.D. Nellore Police Station and the same is pending trial.
ii. The evidence further discloses the threats given by Accused Nos. 1 and 2 to eliminate the deceased if he fails to pay Rs.,5,00,000/-. Thereafter, he speaks about the manner in which the offence took place, on 31.07.2011 at 11.00 AM. According to him, on that day, his son came to his house along with his two friends and were chit chatting; at that time, his daughter-in-law was present in the house. He went into the house for bath and thereafter he noticed the Accused No. 1 and 2 coming into the house armed with Machu Kathi and Patta Kathi. According to him, when the Accused No. 1 tried to hack the deceased, he raised his left hand to ward off the blow, as a result of which, the blow landed on the left wrist causing cut injury. When PW.2 interfered, the Accused No. 1 pushed her away and thereafter the Accused No. 1 hacked the deceased, when the deceased raised his right hand to word off the same, he sustained injury on right his forearm. At that point of time, the Accused No.2 who was armed with Patta Kathi, hacked on the chin causing cut injury on the throat. When PW.1 interfered, the Accused No. 1 hacked him with billhook on his left arm causing bleeding injury. Again the Accused No. 1 hacked the deceased twice on the throat and on receiving the same, the deceased fell down.
HACJ&MSM,J Crl.A.No.1205 of 2012 11 iii. From the evidence in-chief of this witness, it is evident that, he was an injured eye witness to the incident. Though, he speaks about the disputes between Accused No. 1 and 2, which took place two years prior to the incident, as held by the Apex Court, motive lose significance when the evidence of injured eye witness is available on record, more so when his presence in the house cannot be doubted. His evidence not only speaks about the enmity between the accused and deceased, but, also the manner in which both the accused attacked the deceased. He was cross-examined in length, but, nothing is found to discredit his testimony.
iiii. It is elicited that the friends who have accompanied the deceased from Tirupati left the house before the commencement of the actual attack. To a suggestion that the friends of deceased were in house when the actual assault took place was denied by him. To a further suggestion that when the Rupesh and another friend tried to save the deceased was denied by him. It was elicited that, the Accused No. 1 and 2 came to the house within half an hour after the arrival of the deceased and the entire attack was over within 10 minutes. The distance between the village and G.D. Nellore is about 9 miles. Except a pronote suit through a third party, Accused No. 1 did not institute any legal proceedings against PW.1 or his son by using the signed papers. To a suggestion to the story of kidnap is HACJ&MSM,J Crl.A.No.1205 of 2012 12 false, is denied by him. To a suggestion that he did not mention in Ex. P1 about coming from bathroom in short was denied by him.
13) PW.2 is the wife of the deceased. According to her, one and half years, prior to the murder, the Accused No. 1 and 2 kidnapped the deceased, took him to Tamil Nadu, obtained his signatures on blank papers after assaulting him and left him in the village. Thereafter, she along with PW.1 and others admitted the deceased in Government Headquarters Hospital, Chittoor. In that connection, a report came to be lodged, which is pending trial. She also speaks about the threats given by the Accused No.1 to kill the deceased, if he fails to pay the amount.
ii. According to her, on 31.07.2011 at about 11.00 AM, the deceased accompanied by Rupesh and another, whose she does not know, came to their house and while they were chit-chatting, PW.1 went to bath and when he was coming into the hall, Accused No. 1 and 2 armed with knives, trespassed into their house; Accused No. 1 was armed with billhook [MO.1] while Accused No. 2 was armed with Patta Kathi [MO.2], the weapons were identified by PW2. iii. On seeing the Accused No. 1 and 2 entering into the house with knives, the deceased raised due to fear. Then the Accused No.1 attempted to hack him, when she intervened to save him, Accused No. 1 pushed her away, and when the deceased tried to ward off the HACJ&MSM,J Crl.A.No.1205 of 2012 13 blow, by raising his left hand, he received cut injury on his left wrist. Thereafter, Accused No.2 armed with Patta Kathi [MO.2] hacked below the chin causing cut injury to the throat. When the deceased bowed his head downwards, the Accused No. 1 with MO.1 hacked on the neck causing neck injury. Thereafter, both the accused also hacked the deceased on his body causing bleeding injuries. iv. Due to fear, Rupesh and another went into corner of the hall. When Pw1 tried to intervene, the Accused No. 1 pushed him away and caused injury on left forearm. After the incident, the Accused No. 1 and 2 left the scene. According to her, two other persons who accompanied the accused were waiting at the gate of the house. She admits, she has no prior acquaintance with the said Rupesh and another person. Both of them left the house on the pretext of brining 108 ambulance and did not return. She was also cross-examined at length, but, nothing useful came to be elicited. The only material which came to be elicited was that, wife of the Accused No. 1 lodged a report before police against the deceased for alleged indecent behavior when demanded to pay the amount due which was also a year back.
14) PW.3 is the younger brother of PW.1. According to him, on the date of incident, at about 11.00 AM, while he was in the house adjoining the house of PW.1, heard commotion from the house of PW.1. He tried to enter into the house of PW.1, but two persons HACJ&MSM,J Crl.A.No.1205 of 2012 14 present at the gate prevented him from entering and pushed him, but he saw the incident. He noticed Accused No. 1 and 2 hacking the deceased with knives. He further submits that, while leaving the premises, the accused threatened to kill if anybody gives a police report. After the accused left the scene, PW.3 entered into the house of PW.1 and after arrival of PW.4, the report given, which was scribed by PW.4. He was cross-examined at length. The only thing which was elicited is that he did not give specific overt acts of the accused in his statement before the police. All the other suggestions, which were given in respect of the incident proper were denied by him.
15) PW.4 is the scribe of Ex.P1. His evidence is only to the effect that, on 31.07.2011 at 11.45 AM, while he was in his village, he came to know about the incident and immediately rushed to the scene of offence and then got prepared a report to the dictation of PW.1. However, he was not cross-examined.
16) PW.5 is the resident of the said place and is the son of PW.3 and Nephew of PW1. According to him, on the date of incident at 11.15 AM, while he was returning to his village from New Venkatapuram, found one white car parked in the middle of the road. He also noticed the presence of the Accused No. 1 and 2 by the side of the car but did not observe others. While he was in his house, which is adjoining to PW.1 house, he heard commotion at HACJ&MSM,J Crl.A.No.1205 of 2012 15 about 11.30 AM and he noticed the Accused No.1 and 2 going out from the house of PW.1 with blood stained knives. He informed the police and also 108 ambulance through phone. He was cross- examined at length, however, there is nothing to discredit his testimony.
17) PW.6 is the photographer, while, PW.7 is the retired Headmaster now doing agriculture speaks about police presence at Rachabanda along with civilians. All other witnesses are official witnesses, whose evidence will be discussed at a later stage.
18) From the evidence adduced, PW.1's presence in the house is quite natural. Though, the learned counsel tried to contend that prosecution failed to establish motive for commission of the offence by the Accused No. 1 and 2. But, as observed earlier, motive lose significance when the evidence of eye witness is available on record. This proposition of law is reiterated by the Apex Court in in Bipin Kumar Mondal v State Of West Bengal [Criminal Appeal No. 1247 of 2008, dated 26th July 2010] held that:-
"18. In fact, motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime. In Shivji Genu Mohite Vs. State of Maharashtra, AIR 1973 SC 55, this Court held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye- witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its HACJ&MSM,J Crl.A.No.1205 of 2012 16 ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy.
19. It is settled legal proposition that even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only by the reason of the absence of motive, if otherwise the evidence is worthy of reliance. (Vide Hari Shankar Vs. State of U.P., (1996) 9 SCC 40; Bikau Pandey & Ors. Vs. State of Bihar, (2003) 12 SCC 616; and Abu Thakir & Ors. Vs. State of Tamil Nadu, (2010) 5 SCC 91).
20. In a case relating to circumstantial evidence, motive does assume great importance, but to say that the absence of motive would dislodge the entire prosecution story is giving this one factor an importance which is not due. Motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy. (Vide Ujagar Singh Vs. State of Punjab, (2007) 13 SCC 90).
21. While dealing with a similar issue, this Court in State of U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73 held as under:
"The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."
19) Coming to the next argument advanced by the learned counsel for the Appellant, that an adverse inference has to be drawn for not examining Rupesh, whose name is reflected in FIR, it is noted that PW.1 in his evidence refers to the name of Rupesh as a resident of Tirupati and known to the deceased. Though, the learned counsel tried to contend he is an independent witness and had he been examined, truth would have come out, but, from the evidence available on record, it is evident that, he is a close friend of the HACJ&MSM,J Crl.A.No.1205 of 2012 17 deceased and he came to the house of the deceased along with him on the date of incident. Even if he was examined, the comment would still be that he is an interested witness. Therefore, the argument of the learned counsel that things would have been different, had he been examined by the prosecution may not be correct. Even otherwise, the evidence of investigation officer would show that every effort was made to trace out the said Rupesh, but, were not able to trace the said Rupesh.
20) PW.14 - the investigation officer in his evidence states that, on 5.6.2010 he visited Muthavandlavuru village and enquired about Rupesh and another person who accompanied the deceased to the crime scene, but, could not get any useful information. He also tried for their whereabouts at Tirupati but in vain. He verified the call details of the BSNL service provider, but could not get useful information about Rupesh and another. Therefore, the argument that no effort was made by the prosecution to secure Rupesh cannot be accepted. On the other hand, as stated above, every effort was made to trace Rupesh but to no avail. Therefore, we feel that non- examination of Rupesh, in the facts and circumstances of the case may not prove fatal when there is other evidence in the form of PW.1, PW.2 and PW.3, whose evidence in our view appears to be natural, more so when nothing has been elicited to discredit their testimony in the cross-examination.
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21) On the other hand, it is also to be noted that the evidence of these witnesses gets corroboration from the medical evidence. PW.1 in his evidence deposed that, when he tried to interfere, the Accused No. 1 hacked with the weapon [billhook] on his left arm. PW.10 - the Doctor who examined PW.1 on 31.07.2011 at about 7.15 PM issued Wound Certificate [Ex.P6] which discloses a "Abrasion over dorsum of left forearm near left elbow joint 2x.5 cm in size". The Doctor was not cross-examined. Therefore, the argument of A2 that it was self- inflicted injury cannot be accepted.
22) Coming to the injuries on the deceased, PW.1 and PW.2 in their evidence deposed about Accused No. 1 hacking the deceased and when he raised his left hand to ward off the blow, the blow fell on the left wrist causing cut injury. Ex.P9 the post-mortem report refers to the said injury. His evidence further shows that, the Accused No. 1 tried to hack the deceased, he raised his right hand, as a result of which, he received injury on his right forearm. Injury No. 5 in Ex.P9- post mortem shows existence of an incised wound on right elbow". At that point of time, the Accused No. 2 is said to have hacked the deceased with Patta Kathi on the chin causing cut injury on the throat and thereafter the Accused No. 1 again hacked the deceased on the throat. Their evidence also shows that when the deceased fell down, the accused attacked him, which injuries are found in Ex.P9.
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23) Learned counsel would further contend that the trial court was not justified in convicting the accused for the offence punishable under section 302 of I.P.C., basing on the evidence of the doctor, which does not indicate that the injury caused by which of the accused is sufficient to cause death of the deceased . He further pleads that in the absence of any charge under section 34 IPC, the trial Court erred in convicting both the appellants under section 302 I.P.C.
24) Having regard to the facts of the case, since both the accused entered into the house armed with weapons, it cannot be said that the accused had no common intention to do away with the deceased. Had it been the case, if one of the accused only entered into the house with a weapon and perpetrated the offence, while the other was outside the house, there would have been an opportunity for him to contend that he never shared any common intention with the accused that had committed the offence. Since both the accused entered into the house and thereafter attacked the deceased and caused injuries to P.W.1, we feel that even in the absence of charge under Section 34 I.P.C., since no prejudice is caused to the appellants, the conviction under Section 302 I.P.C. cannot be found fault with. The evidence of doctor categorically shows the deceased would appear to have died of excessive haemorrhage, injury to the vital organs like brain with asphyxia, hypoveluemic shock. Therefore, these two appellants caused injuries not only on the head but also on the lower end of the neck, leading to haemorrhage and shock.
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25) This issue is not a res integra, in view of the decision of the Apex Court in Ramji Singh Vs. State of Bihar1. The Apex court, while dealing with the aspect as to whether in the absence of charge under section 34, conviction could be maintained under Section 34, observed as follows:
"13. Counsel for the appellants then pointed out that the appellants had been charged under Section 302 IPC whereas no charge had been framed under Section 34 of the IPC. The trial Court convicted all the three accused under Section 302. The High Court in appeal convicted the appellants under Section 302 read with Section 34. It was argued with vehemence that it was not possible to ascertain who gave the fatal blow and therefore the common intention could not be inferred. That in the absence of the charge read with Section 34 the appellants were deprived of their right to defence themselves. He referred to Mohan Singh v. State of Punjab, 1962 (Supp) 3 SCR 848, Ninaji Raoji Boudha v. State of Maharashtra: (1976) 2 SCC 117, Pandurang Tukia and Bhillia v. The State of Hyderabad (1995) 1 SCR 1083; Lal Mandi v. State of W.P., (1995) 3 SCC 603 and Dukhmochan Pandey v. State of Bihar, (1997) 8 SCC 404, to canvass the point that in the absence of pre-concert of minds the common intention could not be inferred though the intention may be the same.
14. Legal position as to whether in the absence of charge under Section 34 conviction could be maintained under Section 34 was cleared by the Constitution Bench in Wille Slaney v. State of M.P., AIR 1956 SC 116, where this Court observed at para 86:
"Sections 34, 114 and 149 of the Indian Penal Code provide under Section 34 conviction could be maintained under Section 34 was declared by the Constitution Bench in Wille Slaney v. State of M.P. AIR 1956 SC 116, where this Court observed at para 86:
"Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charges is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.
In such a situation, the absence of a charge under one or other of the various head of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act when brought about the offence and such evidence is of course relevant."
This was reiterated by the Supreme Court a number of times. We may refer to Dhanna v. State of Madhya Pradesh, AIR 1996 SC 2478, where this position is reiterated after referring to the other cases. It held: 1
. 2001 AIR(SC) 3853 HACJ&MSM,J Crl.A.No.1205 of 2012 21 "It is, therefore, open to the Court to take recourse to Section 34 of IPC even if the said Section was not specially mentioned in the charge and instead Section 149, IPC has been included. Of course a finding that the assailant concerned had a common intention with the other accused is necessary for resorting to such a course. This view was followed by this Court in later decisions also (Amar Singh v. State of Haryana, AIR 1973 SC 2221; Bhoor Singh v. State of Punjab, AIR 1974 SC 1256. The first submission of the learned counsel for the appellant has no merit."
Accordingly it is held that even in the absence of the charge under Section 34 the conviction could be maintained by the Courts below.
15. The counsel for the appellants could not show that any prejudice was caused to either of the accused persons because of the non-framing of charge under Section 34."
26) Learned counsel for A2 would further contend that as per the evidence of P.W.1; M.O.3-bloodstained short, which he was wearing at the time of the incident, was handed over to police. For the reason that P.W.1 sustained only a small abrasion, his short would not have been stained with blood and the same would clearly show that he was planted as an injured eyewitness.
27) Regarding this argument, it has to be noted that though P.W.1 deposed about his short being stained with blood, he does not say that the bloodstains found on his short are due to injuries sustained by him. The deceased was hacked on head and neck, that being so, he being the father must have taken him into his lap or come in contact with him at least after the accused left the scene, and at that time, there is every possibility of M.O.3-short of P.W.1 getting stained with blood. Ex.P15- RFSL report, shows that human blood was detected on M.O.3-short. Therefore, the version of P.W.1 that M.O.3 contained blood would strengthen his presence at the scene of offence.
HACJ&MSM,J Crl.A.No.1205 of 2012 22
28) For the foregoing discussion, we hold that the prosecution proved beyond reasonable doubt that the accused caused the death of the deceased, thereby committed the offence punishable under Section 302, 324, 302 r/w.34 IPC. The conviction and sentence imposed by the Sessions Court, on all counts, therefore, does not warrant interference in this appeal and the same are hereby confirmed.
29) Accordingly, the Criminal Appeal is dismissed.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
__________________________ C.PRAVEEN KUMAR, ACJ _________________________________ M.SATYANARAYANA MURTHY,J Dt:18-09-2019 SM/RRR HACJ&MSM,J Crl.A.No.1205 of 2012 23 THE HON'BLE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY CRIMINAL APPEAL No. 1205 of 2012 DATE: 18-09-2019 SM/RRR