Telangana High Court
Surendra Pradhan, Nalgonda Dt., vs State, Rep. Inspector Of Police, ... on 22 April, 2022
Author: Shameem Akther
Bench: Shameem Akther, Juvvadi Sridevi
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
CRIMINAL APPEAL No.53 OF 2014
JUDGMENT:(Per Hon'ble Dr. Justice Shameem Akther) This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C'), is filed by the appellant/accused, aggrieved by the judgment, dated 28.12.2012, passed in S.C.No.471 of 2012 by the II Additional Sessions Judge, Nalgonda at Suryapet, whereby, the appellant/accused was found guilty of the offence under Section 302 of IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for three months.
2. Heard Ms. P.S.Manjula Kumar, learned legal aid counsel for the appellant/accused, Sri C.Pratap Reddy, learned Public Prosecutor appearing for the respondent-State and perused the record.
3. The case of the prosecution, in brief, is as follows:
On 07.01.2012 at about 10:00 PM, PW.1-Ramesh Lanka went to Mothey Police Station and made statement under Ex.P1 that since the last two years he and his elder brother Ravindra Lanka (the deceased) were working as suppliers at Amruthsar Dr.SA, J & JS, J 2 Crl.A.No.53 of 2014 Punjabi Dhaba, near Namavaram stage of Mothey Mandal, Nalgonda District, belonging to PW.2-Sonu Singh. Along with them, one person by name Surendra Pradhan (the accused), belonging to their State, i.e., Orissa, was also working in the same Dhaba as supplier. Since the last eight months, the accused and the deceased used to quarrel with each other with regard to their duties. On 07.01.2012 at about 08:00 AM, the deceased tried to wake up the accused while he was sleeping. Since the accused did not wake up, the deceased kicked the accused to wake up, due to which, the accused bore grudge against the deceased. On the same day at about 09:00 PM, while the deceased was sleeping in the Dhaba on a cot, the accused went to the deceased and axed him 3 to 4 times on left side neck and left jaw, with an intention to kill him. The deceased succumbed to the injuries on the spot. He, PW.2, PW.12 and one Babloo Naskar witnessed the incident. On seeing them, the accused escaped from there along with the axe.
4. Basing on Ex.P1-statement of PW.1, Ex.P13-Sub-Inspector of Police, Mothey Police Station, registered a case in Crime No.1 of 2012 for the offence punishable under Section 302 of IPC, against the appellant/accused and issued Ex.P10-Express FIR. On completion of investigation, charge sheet was laid before the Dr.SA, J & JS, J 3 Crl.A.No.53 of 2014 Judicial Magistrate of First Class, Suryapet, against the appellant/accused for the offence under Section 302 of IPC. The learned Magistrate had taken cognizance of the case in P.R.C.No.36 of 2012 and committed the same to the Court of Session, since the offence under Section 302 of IPC is exclusively triable by the Court of Session. The Sessions Court, Nalgonda, numbered the case as S.C.No.471 of 2012 and made over the case to the Court below for trial and disposal, in accordance with law.
5. The Court below, after hearing both sides, framed charge under Section 302 of IPC against the appellant/accused, read over and explained to him in Hindi, for which, the appellant/accused pleaded not guilty and claimed to be tried.
6. To prove the guilt of the appellant/accused, the prosecution examined PWs.1 to 14 and got marked Exs.P1 to P11, besides case properties, M.Os.1 to 6.
7. PW.1-Ramesh Lanka is the complainant and younger brother of the deceased. PW.2-Sonu Singh is an eye witness and owner of Dhaba where PW.1, the accused and the deceased were working. PW.3-Karingula Ravi and PW.4-Orsu Balakrishna are circumstantial witnesses, who saw the accused while running away on the Dr.SA, J & JS, J 4 Crl.A.No.53 of 2014 backside of the Dhaba with an axe. PW.5-G.Durga Prasad is a Home Guard who took photographs of the dead body of the deceased. PW.6-Kousalya Lanka is the wife of the deceased, who is another circumstantial witness. PW.7-Sudarshan Naik is the father-in-law of the deceased. PW.8-Gan Shyamlal is the elder brother of PW.1 and the deceased. PW.9-Kuncham Hari Babu is one of the panch witnesses for scene of offence panchanama, inquest panchanama and seizure panchanama. PW.10-Shaik Hassan Mohammed is one of the panch witnesses for confession panchanama and seizure panchanama. PW.11-Dr.T.Vidyasagar is the doctor who conducted autopsy over the dead body of the deceased and issued Ex.P9-PME Report. PW.12-Tarlok Singh is another eye witness to the alleged incident. PW.13-N.Saidi Reddy is the Sub-Inspector of Police, who registered the subject crime and issued Express FIR. PW.14-K.Bhaskar is the Investigating Officer, who conducted investigation in the subject crime and laid charge-sheet. Ex.P1 is the statement, dated 07.01.2012, of PW.1 recorded by PW.13, basing on which the subject crime was registered. Ex.P2 is (6) photographs along with C.D., taken by PW.5. Ex.P3 is scene of offence-cum-seizure panchanama conducted by PW.14 in the presence of PW.9 and another panch Dr.SA, J & JS, J 5 Crl.A.No.53 of 2014 witness. Ex.P4 is the rough sketch of scene of offence. Ex.P5 is the inquest panchanama conducted over the dead body of the deceased. Exs.P6 and P7 are the relevant portions of confessional statement of the accused recorded by PW.14 in the presence of PW.10 and another panch witness. Ex.P8 is panchanama for seizure of axe (MO.6). Ex.P9 is Post-Mortem Examination report issued by PW.11. Ex.P10 is the original FIR in Crime No.1 of 2012 of Mothey Police Station, issued by PW.13. Ex.P11 is the FSL Report of the material objects. MO.1 is the controlled earth, MO.2 is the blood stained earth, MO.3 is the Mercury Tube Light, MO.4 is the shirt with blue and white colour stretches, MO.5 is the pant of the accused and MO.6 is the axe, which is alleged to have been in commission of the offence.
8. When the appellant/accused was confronted with the incriminating material appearing against him and was examined under Section 313 of Cr.P.C., he denied the same and pleaded innocence. On behalf of the appellant/accused, no evidence, either oral or documentary, was adduced.
9. The trial Court, having considered the submissions made and the evidence available on record, vide the impugned judgment, Dr.SA, J & JS, J 6 Crl.A.No.53 of 2014 dated 28.12.2012, convicted the appellant/accused of the offence punishable under Section 302 of I.P.C. and sentenced him as stated above. Aggrieved by the same, the appellant/accused preferred this appeal.
10. Learned legal aid counsel for the appellant/accused would vehemently contend that the appellant/accused is an innocent person. He is not responsible for the death of the deceased. There are no direct witnesses to the commission of the offence. PWs.1 and 2 are interested witness and there are inconsistencies and material omissions in their evidence. It is unsafe to base conviction on the evidence of other prosecution witnesses. Without there being any cogent and convincing evidence on record, the trial Court came to a conclusion that the appellant/accused had caused the subject death and accordingly, convicted and sentenced the appellant/accused of the offence under Section 302 of IPC, which is erroneous. Further, there are no independent witnesses to substantiate the accusation against the accused. Though the offence took place at a Dhaba which runs 24/7, no customer of the Dhaba was examined to support the case of the prosecution. There is no motive or intention on the part of the accused to cause the death of the deceased. Even if the Dr.SA, J & JS, J 7 Crl.A.No.53 of 2014 prosecution case is taken as true, there was grave and sudden provocation by the deceased and hence, the subject death would amount to culpable homicide not amounting to murder and falls under Exception 4 of Section 300 of IPC. Under these circumstances, the Court below ought not have convicted and sentenced the appellant/accused of the offence under Section 302 of IPC and ultimately, prayed to set aside the conviction and sentence recorded against the appellant/accused of the offence under Section 302 of IPC vide the impugned judgment and acquit the appellant/accused of the said offence. In support of her submissions, the learned legal aid counsel relied on a decision of the Hon'ble High Court of Madhya Pradesh at Indore in Bhagirath Vs. State of Madhya Pradesh1.
11. On the other hand, the learned Public Prosecutor would submit that there is direct evidence of PWs.1, 2 and 12 to connect the appellant/accused with the alleged offence. PW.3 and PW.4 saw the accused while running away on the backside of the Dhaba with an axe in his hand. There is also evidence of PW.11- Doctorand Ex.P9-PME Report to establish that the subject death is homicidal. The appellant/accused bore grudge against the Dr.SA, J & JS, J 8 Crl.A.No.53 of 2014 deceased and axed him with MO.6-axe on the left side of the neck and left side chin, causing fatal injuries and the deceased succumbed to those injuries on the spot. There are no inconsistencies and material omissions in the evidence of PW.1 and PW.2 as contended. There is clear and cogent evidence on record to establish the guilt of the appellant/accused. Furthermore, there is evidence of panch witnesses to substantiate the recovery of MO.6-axe and MO.5-pant of the accused, pursuant to the confession made by the appellant/accused. Further, there is no grave and sudden provocation by the deceased accused as contended. It was a pre-meditated plan to cause murder of the appellant/accused. The oral evidence coupled with documentary evidence clinchingly proves the guilt of the appellant/accused of the offence under Section 302 of IPC beyond all reasonable doubt. The Court below had meticulously examined the entire evidence on record in right perspective and arrived at just conclusion. The Court below is justified in convicting and sentencing the appellant/accused of the offence under Section 302 of I.P.C. There are no circumstances to vary the impugned judgment and ultimately, prayed to dismiss the appeal by confirming the 1 Decided on 07.02.2019 in Crl.A.No.817 of 2011 by a Division Bench of Hon'ble High Court of Madhya Pradesh Dr.SA, J & JS, J 9 Crl.A.No.53 of 2014 conviction and sentence recorded against the appellant/accused vide the impugned judgment.
12. In view of the above rival submissions, the points that arise for determination in this appeal are as follows:
(1) Whether the subject death of the deceased is homicidal?
(2) Whether the appellant/accused had caused the subject death of the deceased?
(3) Whether there was sudden and grave provocation for commission of the subject death?
(4) Whether the prosecution was able to prove the guilt of the appellant/accused beyond all reasonable doubt?
(5) Whether the conviction and sentence recorded against the appellant/accused of the offence punishable under Section 302 of I.P.C. is liable to the set aside?
POINTS:
13. There is overwhelming evidence in the form of Ex.P5-Inquest Panchanama, Ex.P9-PME report coupled with the evidence of PW.11-doctor, which goes to prove that the subject death of the deceased is homicidal, completely overruling the possibility of natural, accidental or suicidal death. Further, the fact that the subject death is homicidal is not in dispute.
Dr.SA, J & JS, J 10 Crl.A.No.53 of 2014
14. According to the prosecution, PW.1 and the deceased are brothers and were working as suppliers at Amruthsar Punjabi Dhaba Hotel, Namavaram Village, Mothey Mandal, Nalgonda District, belonging to PW.2. The appellant/accused was also working in the same Dhaba as supplier. On 07.01.2012 at about 08:00 AM, when the deceased tried to wake up the accused to attend his duty, he did not wake up. Then, the deceased kicked the accused with his legs upon which, the appellant/accused bore grudge against the deceased. On the same day, at about 09:00 PM, when the deceased was in sleeping in the Dhaba on a cot, the accused went to the deceased and axed him 3 to 4 times with MO.6-axe on the left side of neck and left side chin with an intention to kill him. Resultantly, the deceased died on the spot. Immediately, PW.1, PW.2, cook Babloo Naskar and PW.12 rushed to the spot and on seeing them, the accused fled away with MO.6- axe.
15. PW.1-Ramesh Lanka is the younger brother of the deceased. He is an eye witness to the commission of offence. He gave statement under Ex.P1 to PW.13, basing on which, Ex.P10-Express FIR was issued. He categorically deposed in his evidence that he Dr.SA, J & JS, J 11 Crl.A.No.53 of 2014 was working as supplier along with his elder brother Ravindra Lanka (deceased) in Amruthsar Punjabi Dhaba Hotel situated near Namavaram stage of Mothey Mandal. Since the last two years, the accused was also working as supplier in the said Dhaba. He know Babul Naskar who was working as cooking master and Tharlok Singh (PW.12) who was working as watchman of the said Dhaba. About 11 months back, in the night at 09:00 PM, the accused went to sleep and on the next day morning, when the accused refused to attend his duties, the deceased kicked the accused. Keeping the same in mind, on the same day in the night, while the deceased was sleeping in the said Dhaba, the accused took one axe and axed the deceased on the left side of the neck and on the left side chin, as a result of which, the deceased died on the spot. Immediately, PW.1 went to Mothey Police Station and orally informed about the incident to the police. The police recorded his statement (Ex.P1) and he affixed his left thumb impression on the same, after the contents were read over and explained to him. Though PW.1 was cross-examined at length with regard to his presence at the Dhaba at the time of commission of offence and witnessing the incident, noting was elicited to discard his testimony. Further, PW.1 categorically denied the suggestion that Dr.SA, J & JS, J 12 Crl.A.No.53 of 2014 the accused did not commit the murder of his brother on that day. He also denied the suggestion that it is not visible to witness the incident, as there is a wall in between the scene of offence and the hall where the customers take food.
16. PW.2-Sony Singh is the owner of the Amruthsar Panjabi Dhaba Hotel. He deposed that he knows PW.1 and the deceased, who were brothers, and they used to work in his Dhaba as suppliers. He also knows the accused, who used to work as a cleaner in his Dhaba, and PW.12, who was working as a watchman of the said Dhaba. He deposed that on 07.01.2012, the duty of the accused was in the morning at 08:00 AM. But the accused did not wake up to attend to his duty. On that, the deceased kicked him with his leg and also beat him with chappals. Keeping the same in mind, on the same day at about 09:00 PM, while the deceased was sleeping in the Dhaba, the accused axed the deceased on left side of neck and chin. At that time, he was in the kitchen and witnessed the incident. The deceased died on the spot. PW.2 further categorically deposed that along with him, PW.1, cooking master Babu Naskar and PW.12 also witnessed the incident. Though PW.2 was cross-examined at length, noting was elicited to discard his testimony. Further, PW.2 denied the Dr.SA, J & JS, J 13 Crl.A.No.53 of 2014 suggestion that he did not witness the incident along with PW.1, cooking master Babul Naskar and PW.12. He also denied the suggestion that the deceased died when unknown persons beat him due to old disputes.
17. PW.12-Tharlok Singh, is another witness. He deposed that he was working was watchman of the Dhaba belonging to PW.2. He categorically deposed that on 07.01.2012, in the morning hours, the deceased kicked the accused with his legs in connection with their duties in the Dhaba. At about 09:00 PM, while the deceased was sleeping, the accused axed the deceased on his neck with an axe by giving three stabs. He saw while the accused was stabbing with axe, inside the Dhaba. The accused escaped after axing the deceased. Though PW.12 was cross-examined at length, nothing was elicited to disprove his testimony. Further, PW.12 categorically denied the suggestion that he did not witness the incident and the accused is no way concerned with the death of the deceased.
18. PW.3-Karingula Ravi is a circumstantial witness. He deposed that he was working as Casher at Sri Padmaja Filling Station, situated at outskirts of Namavaram (V) of Mothey Mandal, which is Dr.SA, J & JS, J 14 Crl.A.No.53 of 2014 situated adjacent to the Dhaba of PW.2. He deposed that he knows the accused, who used to work as supplier in the said Dhaba. He also knows the deceased and his brother PW.1, who used to work as suppliers in the said Dhaba. About one year back, he went to duty at petrol bunk. At about 09:00 PM, he heard the cries from the Dhaba. When he went upto the compound wall of the said Dhaba, he observed the accused armed with axe running away on the back side of the Dhaba. When he went inside the Dhaba, he came to know that the accused axed the deceased on his neck and chin. Though PW.3 was cross-examined at length, nothing was elicited to discard his testimony in examination-in- chief. Further, PW.3 denied the suggestion that he had not witnessed the deceased running away with axe in his hand.
19. PW.4-Orsu Balakrishna is another circumstantial witness. He deposed on the same lines as of PW.3. He categorically deposed that he saw the accused running away along with an axe on the backside of the Hotel and that when he went inside, he observed the deceased with injury on his left side neck and chin and he died. In his cross-examination, he denied the suggestion that he did not see the accused running away along with axe towards the Dr.SA, J & JS, J 15 Crl.A.No.53 of 2014 backside of the Dhaba and that he never saw the deceased with injuries on his neck and chin.
20. The ocular evidence of PW.1, PW.2 and PW.12 corroborates with each other on all material particulars. Their evidence is cogent and consistent. There are no inconsistencies and material omissions in their evidence. The evidence of PW.3 and PW.4 corroborates the evidence of PW.1, PW.2 and PW.12 with regard to the accused running away on the backside of the Dhaba with MO.6-axe in his hand, after commission of murder of the deceased. It is contended on behalf of the appellant/accused that PW.1, being the brother of the deceased, was an interested witness and hence, his evidence cannot be relied upon. Here, it is apt to state that the evidence of an interested witness cannot be thrown out, but has to be examined carefully before accepting the same. When the statements of interested witnesses find corroboration by other witnesses and the circumstances of the case clearly depict complete chain of evidence pointing out the guilt of the accused, then the evidence of interested witnesses can be relied upon. In the instant case, PW.2, who is the owner of the Dhaba and PW.12, who was working as watchman of the said Dhaba, are independent witnesses and not related to the accused Dr.SA, J & JS, J 16 Crl.A.No.53 of 2014 or the deceased. They have no grudge or animosity against the accused to implicate him in a false case, so also no reason to depose falsely in favour of the prosecution. Hence, the ocular evidence of PW.1, PW.2 and PW.12 coupled with the circumstantial evidence of PW.3 and PW.4 clinchingly prove that the accused has axed the deceased with MO.6-axe on the left side of the neck and left side chin, resulting in instantaneous death of the deceased.
21. PW.11-Dr.T.Vidyasagar is the doctor who conducted autopsy over the dead body of the deceased. He deposed that on 08.01.2012, he conducted autopsy over the dead body of the deceased from 08:30 AM to 12:30 PM and found the following external injuries:
1. Cut injury left side over face extending chin, to below left ear measuring 10" x 4" x 3" cms, with fracture mandible and fracture left maxilla.
2. Lacerated wound over left side of neck. Measuring (1) 10 x 4 x 2, (2) 6 x 2 x 2 Cms and (3) 2 x 2 x 2 cm respectively with fracture of cervical vertical bodies.
PW.11 further deposed that the above injuries are anti-mortem in nature and the cause of death was due to cardio respiratory arrest due to hypo volumic shock due to major injuries. He further deposed that the approximate time of death is 12 to 18 hours prior to examination. He issued Ex.P9-PME Report. Ex.P9-PME Report Dr.SA, J & JS, J 17 Crl.A.No.53 of 2014 issued by him substantiates the injuries found over the dead body of the deceased. The evidence of PW.11-doctor and Ex.P9-PME Report substantiates that the subject death was caused around 09:00 PM on 07.01.2012 and the two injuries found on the dead body of the deceased are possible by MO.6-axe.
22. PW.14-K.Bhaskar is the investigating officer. He deposed that he conducted scene of offence panchanama under Ex.P3 in the presence of PW.9 and one Ramdas Venkataramana; seized the controlled earth, bloodstained earth and mercury tube light under MOs.1 to 3; drawn Ex.P4-rough sketch; held Ex.P.5-inquest over the dead body of the deceased in the presence of PW.9 and another; seized bloodstained shirt of the deceased (MO.4); sent the dead body of the deceased to Area Hospital, Suryapet. On 07.01.2012 itself, PW.14-Investigating Officer apprehended the accused and recorded his confessional statements under Exs.P6 and P7. Pursuant to the confession made by the accused under Exs.P6 and P7, PW.14 seized the material objects, i.e., MO.5- bloodstained pant of the accused and also MO.6-axe said to have been used in commission of the offence and these material objects, along with MOs.1 to 4, were sent to Forensic Science Laboratory for examination and Report. Ex.P11-FSL report, dated Dr.SA, J & JS, J 18 Crl.A.No.53 of 2014 19.04.2012, was received in respect of the material objects seized in the course of investigation. Ex.P11-FSL Report substantiates that human blood was found of MO.6-axe and its blood group was "AB". Ex.P11-FSL Report further substantiates that on MO.4-T- shirt of the deceased and MO.5-pant of the accused also, human blood was detected and the blood group was "AB", which matches with the blood group found on MO.6-axe. Ex.P11-FSL Report coupled with the oral evidence adduced on behalf of the prosecution (evidence of PWs.1, 2, 3, 4 and 12) substantiate that the accused had hacked the deceased to death with MO.6-axe.
23. Ocular evidence is considered as best evidence, unless there are reasons to doubt it. In the instant case, the evidence of PW.1, PW.2 and PW.12 is unimpeachable. Further, we find no inconsistency between the ocular and medical evidence. Further, it is not a case where two views are possible or the credibility of the witnesses is in doubt. Neither is it a case of a solitary uncorroborated witness. when the ocular evidence is found to be truthful, the 'motive' part assumes secondary role. It is pertinent to state that the deceased died on the spot. The injuries were found on the vital organs i.e., left side of the neck and left side chin. The size of the injuries, the consequences of the injuries Dr.SA, J & JS, J 19 Crl.A.No.53 of 2014 found over the dead body of the deceased and the spot death of the deceased, clearly demonstrate that those injuries were caused with an intention to eliminate the deceased and the accused was successful in doing so. Thus, there was clear intention on the part of the accused to do away with the life of the deceased, boring grudge against the deceased since he kicked the accused with his legs.
24. A feeble argument has been advanced on behalf of the appellant/accused that even if the prosecution case is taken as true, there was grave and sudden provocation by the deceased and hence, the subject death falls under Exception 4 of Section 300 of IPC. Here, it is apt to state that for claiming an exception on the ground of "grave and sudden provocation", the facts that are required to be proved are (1) that the accused received provocation; (2) that the provocation was (a) grave, and (b) sudden; (3) that he was deprived of his power of self-control by the provocation; (4) that while thus deprived of his power of self- control and before he could cool down, he caused the death of the person who gave him the provocation. Further, the question whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact, but Dr.SA, J & JS, J 20 Crl.A.No.53 of 2014 should not be treated as a question of law and should be decided basing on the facts and circumstances of each case. In the instant case, as per the evidence on record, on the date of incident, i.e., on 07.01.2012, when the accused was sleeping without attending to his duties, the deceased kicked him with his legs and beat him with chappals in the morning. Boring grudge against the deceased, the accused, on the same day at 09:00 PM, went to the deceased with MO-6 and axed him on the left side of the neck and left side chin, when the deceased was sleeping. Thus, the evidence on record makes it clear that the deceased was sleeping at the time of the attack by the accused. A person, who is in slumber, cannot provoke another person. Hence, it cannot be said that there was grave and sudden provocation by the deceased. This being the factual position, discussing the judgment cited by the learned legal aid counsel for the appellant/accused on the aspect of grave and sudden provocation in Bhagirath's case supra, would be merely academic. Therefore, the instant case does not fall within the Exception 4 of Section 300 of IPC, as contended. It is a clear case of murder in order to wreak vengeance against the deceased for kicking the accused with legs.
Dr.SA, J & JS, J 21 Crl.A.No.53 of 2014
25. There is overwhelming and unimpeachable evidence on record to arrive at a conclusion that the appellant/accused, with a premeditated mind to cause the death of the deceased, axed the deceased with MO.6-axe on vital parts of the body resulting in his instantaneous death. It is a clear case of murder, punishable under Section 302 of IPC. The Court below had meticulously dealt with these aspects and acted upon the cogent and convincing evidence on record. The conclusion reached by the Court below is in tune with the evidence on record. None of the contentions raised on behalf of the appellant/accused do merit consideration. The appeal is liable to be dismissed.
26. Accordingly, the Criminal Appeal is dismissed, confirming the judgment, dated 28.12.2012, passed in S.C.No.471 of 2012 by the II Additional Sessions Judge, Nalgonda at Suryapet.
Miscellaneous petitions, if any, pending in this Criminal Appeal, shall stand closed.
____________________ Dr. SHAMEEM AKTHER, J _________________ JUVVADI SRIDEVI, J 22nd April, 2022 Bvv