Andhra Pradesh High Court - Amravati
Indla Suresh, Nellore Dt., vs State Of Ap., Rep Pp., on 17 August, 2019
Author: M.Satyanarayana Murthy
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
AND
THE HONOURABLE SRI JUSTICE CHEEKATI
MANAVENDRANATH ROY
CRIMINAL APPEAL No.506 of 2015
JUDGMENT:- (Per Hon'ble Sri Justice M.Satyanarayana Murthy) The accused/appellant was found guilty for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, "I.P.C.") in Sessions Case No.211 of 2011 vide judgment, dated 09.03.2015, passed by the learned III Additional District and Sessions Judge, Nellore and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500/-, in default of payment of fine, to suffer simple imprisonment for one month. Aggrieved by the calendar and judgment imposing conviction and sentence on 09.03.2015, the present appeal is filed under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C.").
2. This is a murder that is allegedly caused by the accused/appellant on 16.01.2011 at about 5:00 P.M. during broad day light. On that day, the deceased Jangalapalli Nancharaiah, P.Choudaiah (P.W.5), M.Dasu (L.W.7), J.Venkataiah (L.W.8) and others were playing cards at the vacant site, which is on the western side of the house of Mekala Sridhar, in view of Kanuma festival. P.W.5 wanted to quit the game as he had to attend his personal work. At the same time, P.W.3 - Ch.Pullaiah wanted to play game in the place of P.W.5. The accused/appellant also wanted to play in the place of P.W.5. In this connection, an altercation took place between the accused/appellant and the 2 MSM, J & CMR, J Crl.A.No.506 of 2015 deceased Nancharaiah, as the deceased Nancharaiah asked P.W.3 to play the game. In the meanwhile, P.W.1 - J.Aruna, P.W.2 - C.Yanadamma, who are the wife and mother-in-law of the deceased, heard cries from the place where all are playing cards, rushed there and found the accused/appellant and the deceased were quarrelling with each other. At that time, P.Ws.3 to 5, Medramgari Dasu, Jangalapalli Venkataiah (L.Ws.7 and 8) and others, who were present there, tried to pacify the situation. P.Ws.1 and 2 intervened and pushed the accused aside and taken the deceased to their house. Then the accused developed a grudge against the deceased for the reason that he was not allowed to play cards in the place of P.W.3, thereby decided to kill Nancharaiah. Then the accused rushed to his house, took a knife from his house and reached the scene of offence. The accused, in pursuance of his intention to kill Nancharaiah, stabbed him with a knife on his left side of abdomen, as a result, Nancharaiah sustained a bleeding injury. P.Ws.1 and 2, Chinnam Pullaiah, Chapalli Narayana, Pogartha Choudaiah, Medramgari Dasu, Jangalapalli Venkataiah, Chavuturu Ravi, Yallaturi Venkaiah, Indla Krishna Murthy, Jangalapalli Kistaiah, Parichina Venkateswarlu and Setty Subbarayudu (L.Ws.4 to 14) witnessed the occurrence. P.W.1 started by taking the injured in an auto of Y.Venkaiah (L.W.10) with the assistance of others to go to hospital, Buchireddypalem, but on the way, the injured Nancharaiah succumbed to the injury caused by the accused/appellant. The dead body of Nancharaiah was shifted to Government Hospital, Buchireddypalem.
On the report of P.W.1, P.W.8 registered a case in Crime No.4 of 2011 of Sangam Police for the offence punishable under 3 MSM, J & CMR, J Crl.A.No.506 of 2015 Section 302 I.P.C. against the appellant/accused and issued F.I.R. P.W.9 - Inspector of Police, Buchireddypalem took up the investigation, visited the scene of offence, observed the scene of offence in the presence of mediators - P.W.6 and D.Ravi Kumar (L.W.18), seized the material objects under the cover of observation report, held inquest over the dead body of Nancharaiah in the presence of the said mediators and sent the dead body for post mortem examination and examined the witnesses.
On 21.01.2011, P.W.9 went to the house of the accused along with his staff and mediators - P.W.6 and L.W.18 and interrogated the accused and the accused confessed before the mediators that he killed the deceased and he took out the knife from the roof of his house and produced the same before them stating that it was the knife used by him in commission of offence. P.W.9 seized the said knife under cover of mediators' report and arrested the accused and forwarded him to the Court for judicial custody.
P.W.7 - Dr.K.Venkateshwarlu conducted autopsy over the dead body of the deceased Nancharaiah and issued post mortem certificate opining that the cause of death was due to shock and hemorrhage on account of stab injury and after collecting evidence during investigation, the Inspector of Police filed charge sheet before the learned Additional Judicial Magistrate of First Class at Kovvur, Nellore District for the offence punishable under Section 302 I.P.C.
The learned Judicial Magistrate of First Class, Kovvur, before whom the charge sheet was filed, after following the procedure 4 MSM, J & CMR, J Crl.A.No.506 of 2015 under Sections 207 and 209 Cr.P.C., committed the case to the Sessions Division, Nellore, as the offence is exclusively triable by a Court of Sessions.
The learned District and Sessions Judge, Nellore, after receipt of record, registered the same as Sessions Case No.211 of 2011 and made over the same to the Court of the learned III Additional District and Sessions Judge, Nellore to try and dispose of the case in accordance with law.
3. Upon securing the presence of the accused/appellant, the learned III Additional District and Sessions Judge framed a sole charge against the accused/appellant for the offence under Section 302 I.P.C., read over and explained to him in Telugu. He pleaded not guilty and claimed to be tried.
4. During trial, prosecution examined P.Ws.1 to 9 and got marked Exs.P-1 to P-9 besides case property - M.Os.1 to 5.
5. After closure of the prosecution evidence, the accused/appellant was examined under Section 313 Cr.P.C. explaining the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same and reported no defence evidence.
6. Upon hearing the arguments of both the learned Public Prosecutor for the State and the learned counsel for the defence, the trial Court found the accused guilty for the offence punishable under Section 302 I.P.C., convicted and sentenced him as stated supra.
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7. Aggrieved by the calendar and judgment, the present appeal is filed on various grounds mostly pointing out the irregularities in the investigation and failure of the prosecution to establish the seizure of material objects and other grounds.
8. During hearing, Sri Ancha Panduranga Rao, learned counsel for the accused/appellant, contended that though the investigating agency examined as many as 22 witnesses, the prosecution examined only nine witnesses and the evidence of nine witnesses is not sufficient to record conviction of the accused for the offence under Section 302 I.P.C. and that too, the evidence of P.W.6, who is the Village Revenue Officer, did not state anything as to owning a house but stated that the accused own a house site and therefore, the question of picking out a knife and causing stab injury on the body of deceased Nancharaiah does not arise and it creates any amount of suspicion on the prosecution case and requested to set aside the conviction and sentence passed against the accused/appellant in Sessions Case No.211 of 2011 on the file of the learned III Additional District and Sessions Judge, Nellore.
9. On the other hand, learned Public Prosecutor argued totally in support of the conviction recorded by the trial Court.
10. Considering rival contentions and perusing the material available on record, the sole point that arises for consideration is:
"Whether the accused/appellant perpetrated murder of the deceased Jangalapalli Nancharaiah with an intention to cause death knowing that the injury caused on the body of the deceased would suffice to cause death in ordinary course of events. If not, whether the conviction and sentence passed by the learned III Additional District and Sessions Judge is sustainable?"
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11. POINT:- Before determining the above point, it is appropriate to advert to the scope of Section 374 Cr.P.C.
12. Section 374 Cr.P.C conferred a substantive right of appeal on the accused who is convicted by the trial Court and this Court, while exercising power under Section 374(2) Cr.P.C., is bound to re-appraise entire evidence to come to an independent conclusion, uninfluenced by the findings recorded by the Court below and decide the legality of conviction and sentence passed by the Sessions Court. Therefore, it is the duty of this Court to re-appraise entire evidence recorded by the Court below after giving an opportunity to both the parties, i.e accused and the respondent. Unless the Court finds manifest perversity in the calendar and judgment or such findings were recorded without evidence, normally, this Court cannot interfere with such fact findings in appeal while exercising jurisdiction under Section 374(2) Cr.P.C. It is the sacrosanct duty of the appellate Court, while sitting in appeal against the judgment of the trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re-assessment, re-appreciation and re-scrutiny of the material on record. Appreciation of evidence and proper re-assessment to arrive at the conclusion is imperative in a criminal appeal. That is the quality of exercise which is expected of the appellate Court to be undertaken and when that is not done, the cause of justice is not sub-served, for neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence on record to assure his guilt vide Kamlesh Prabhudas Tanna & Anr 7 MSM, J & CMR, J Crl.A.No.506 of 2015 v. State Of Gujarat1. Keeping the scope of Section 374(2) Cr.P.C., we would like to re-appreciate the entire evidence on record to come to an independent conclusion, uninfluenced by the findings recorded by the Court below.
13. To establish the guilt of the accused/appellant, the prosecution examined P.W.1 - J.Aruna, wife of the deceased Nancharaiah, who is the direct witness to the incident. Even according to her testimony, at about 3 years prior to her deposition, on the day of Kanuma festival, at about 5:00 P.M., while she was in her house along with her mother, heard cries from the house of Venkata Ramanaiah. Then, herself and her mother went to that place where the accused/appellant and the deceased Nancharaiah were struggling with each other. Then, she pacified the dispute and again, the accused/appellant picked up a quarrel with her husband. Then, she pushed the accused/appellant aside. The accused/appellant ran away to his house, brought a knife from his house and stabbed on the left side of his abdomen with knife. She also spoke about the presence of Choudaiah (L.W.6), Venkataiah (L.W.8), Pullaiah (L.W.4), Narayana (L.W.5), Dasu (L.W.7) and Ravi (L.W.9). All the persons made an attempt to catch hold of the accused/appellant but he threatened to kill those persons with knife and ran away from that place. She called one auto belonging to one Venkaiah of her village. Then, herself and her mother started to shift the injured to the Government Hospital, Buchireddypalem and when they reached the place near reservoir, 108 ambulance came in the opposite direction and stopped the vehicle and the staff of the ambulance, 1 (2013) 15 SCC 263 8 MSM, J & CMR, J Crl.A.No.506 of 2015 after examining her husband, declared him as dead. Thereafter, the body was shifted to Government Hospital, Buchireddypalem. In the cross examination, the suggestion put to P.W.1 that she did not state to the police that she and her mother shifted her husband Nancharaiah to the hospital and on the way, they shifted him to 108 ambulance vehicle was denied by her. Nothing was elicited to discredit the testimony of P.W.1 with regard to the incident of causing injury on the abdomen of Nancharaiah with a knife by the accused. Similarly, another suggestion was put to the witness that on the day of incident, the deceased Nancharaiah and other villagers consumed alcohol and quarreled with each other and in that galata, one unknown person caused injuries on the body of her husband Nancharaiah and that the accused/appellant never caused injuries to her husband in their presence and that a false case was foisted against the accused/appellant with an intention to grab his site. This suggestion is sufficient to conclude that the accused/appellant was also present at the scene of offence at the time of incident. However, the suggestion was denied. In any view of the matter, her evidence is consistent with regard to causing injury on the abdomen of deceased Nancharaiah with a knife. Since the incident occurred near the residence of P.W.1, her presence on the festival day along with her family members is most improbable.
14. Similarly, one Ch.Yanadamma is examined as P.W.2, who accompanied P.W.1 and testified on the same lines of P.W.1. She is the mother-in-law of the deceased Nancharaiah. Even in her cross examination, nothing was elicited except suggesting that she is related to P.W.1 and deposing false and the same was denied.
9 MSM, J & CMR, J Crl.A.No.506 of 2015 For different reasons, learned counsel for the defence elicited in the cross examination that the site of the accused/appellant is at a distance of 20 feet from her house. This fact shows that they are known to each other even prior to the incident and residing at the vicinity of the scene of offence. Therefore, the evidence of P.W.2 also directly points out the complicity of the accused/appellant.
15. Ch.Pullaiah - P.W.3, who is one of the players in the game of cards on the kanuma day, clearly testified about the cause of quarrel between the deceased Nancharaiah and the accused/appellant. According to him, at about three years before his examination, on the eve of Kanuma festival, while they were playing cards near the house of T.Venkata Ramanaiah, himself, P.Choudaiah (L.W.6), M.Dasu (L.W.7), Ravi (L.W.9), Ch.Narayana (L.W.5) and J.Venkataiah. After completion of playing cards, Choudaiah wanted to drop from the game as he wanted to go to his house. Then, he himself asked other persons in his place to play cards. The accused/appellant also asked the other villagers to join him in the place of Choudaiah for playing cards. Thereupon, a quarrel ensued between P.W.3 himself and the accused. Then, Nancharaiah intervened and thereupon, the accused/appellant and Nancharaiah quarreled for some time as Nancharaiah supported P.W.3. On hearing the cries, P.Ws.1 and 2, the wife and mother-in-law of Nancharaiah, came there and took him to their house. In the meanwhile, the accused/appellant ran away to his house, picked up a knife and stabbed Nancharaiah on his left side of abdomen. When P.W.3 and others tried to catch hold of him, he threatened all of them and ran away. In the cross 10 MSM, J & CMR, J Crl.A.No.506 of 2015 examination, nothing could be elicited by the learned counsel for the accused/appellant.
16. Similarly, P.Ws.4 and 5 testified in the lines of P.W.3 and their evidence is consistent in all respects more particularly, with regard to causing of stab injury on the left side of abdomen of deceased Nancharaiah with a knife. In the entire cross examination of P.Ws.3 to 5, the learned defence counsel could elicit nothing except suggesting that there was a quarrel due to consumption of alcohol and somebody killed, which is not substantiated by any material. Therefore, the evidence of direct witnesses - P.Ws.1 to 5 is sufficient to establish that the accused/appellant caused injury on the left side of the abdomen of Nancharaiah with an intention to kill him knowing that the injury caused on the body is sufficient to cause death in normal course of events.
17. When there was a quarrel between the accused/appellant and the deceased Nancharaiah, the same was pacified, suddenly entering into his house and picking up a knife, returning to the scene of offence and causing the injuries is sufficient to conclude that he had an intention to kill Nancharaiah. Otherwise, he would not have immediately caused injury on vital part of body of Nancharaiah.
18. The main contention of the learned counsel for the accused/appellant is that when the accused/appellant had no house, the question of picking up a knife from his house does not arise and he has drawn the attention of this Court to the testimony of P.W.6, who testified that he mentioned in Ex.P-2 that on the 11 MSM, J & CMR, J Crl.A.No.506 of 2015 north eastern side of the scene of offence, the vacant site of the accused/appellant is there but this admission itself is not sufficient to conclude that the accused/appellant had no house within the vicinity of the scene of offence. At best, this admission is sufficient to establish that the accused/appellant also own house site on the north eastern side of the scene of offence. Therefore, this admission is of no assistance to disprove the case of the prosecution more particularly, when the case is based on direct evidence of P.Ws.1 to 5 whose evidence is consistent.
19. When the Court found no inconsistency in the evidence of direct witnesses and that too, as P.Ws.3 to 5 are the independent witnesses and the evidence of P.Ws.1 and 2, who are the wife and mother-in-law of the deceased Nancharaiah, is corroborated by independent testimony, their evidence cannot be brushed aside based on a bald suggestion put to them that somebody stabbed on the left side of the abdomen of Nancharaiah and no enmity or differences are attributed to any of the independent witnesses and the identity of the accused/appellant is also not disputed in the entire cross examination. Therefore, in the absence of eliciting any material to discredit the testimony of P.Ws.1 to 5, it is difficult to disbelieve the evidence of P.Ws.1 to 5.
20. The evidence of P.W.7 - Dr.K.Venkateswarlu and the opinion expressed by the panchayatdars and the blood relatives during inquest marked as Ex.P-3 and Post Mortem Report - Ex.P-5 is sufficient to establish the cause of death i.e., stab injury caused on the left side of abdomen of the deceased Nancharaiah. On the basis of the nature of weapon, the Court can infer that the 12 MSM, J & CMR, J Crl.A.No.506 of 2015 accused/appellant is aware that causing injury with such a sharp dangerous weapon on the vital part of the body of Nancharaiah would lead to death in ordinary course of events or in normal course of events. Therefore, we are of the view that the prosecution was able to establish the guilt of the accused/appellant beyond all reasonable doubt.
21. One of the major contentions of the learned counsel for the accused/appellant is that when 22 witnesses were examined by the police during investigation, non-examination of 13 witnesses is fatal to the prosecution case. It is settled law that quality of evidence is required and not the quantity. It is evident from Section 134 of the Indian Evidence Act, 1872 that no particular number of witnesses shall in any case be required for the proof of any fact.
22. The Delhi High Court, vide judgment in Raja Vs. State2, held that the Courts are concerned with the merit of the statement of a particular witness and they are not concerned with the number of witnesses examined by the prosecution.
23. Similarly, in the judgment reported in State of Uttar Pradesh vs. Kishanpal3, the Supreme Court held that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement.
24. If these principles are applied, the present facts of the case in non-examination of 13 witnesses is of no consequence and on 2 (1997) 2 Crimes 175 (Del) 3 2008 (8) JT 650 : 2008 (11) SCALE 233 13 MSM, J & CMR, J Crl.A.No.506 of 2015 this ground, the conviction and sentence, finding the accused/appellant guilty for the offence punishable under Section 302 I.P.C. cannot be set aside or reversed.
25. On close perusal of the calendar and judgment and the evidence on record, we find no perversity in the findings recorded by the trial Court warranting interference of this Court while exercising power under Section 374 (2) Cr.P.C. The findings recorded by the learned III Additional District and Sessions Judge are hereby confirmed. Hence, we find no ground to interfere and the appeal is liable to be dismissed as it is devoid of merit.
26. In the result, the Criminal Appeal is dismissed confirming the judgment, dated 09.03.2015, in Sessions Case No.211 of 2011 passed by the learned III Additional District and Sessions Judge, Nellore.
Miscellaneous Petitions pending, if any, in this Criminal Appeal shall stand closed.
_________________________________________ JUSTICE M.SATYANARAYANA MURTHY ________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date : 17.8.2019 AMD 14 MSM, J & CMR, J Crl.A.No.506 of 2015 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY AND THE HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY CRIMINAL APPEAL No.506 of 2015 Date : 17.8.2019 AMD