Andhra Pradesh High Court - Amravati
Patan Babjan Baba, vs The State Of A.P., Rep By Pp., on 20 April, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.1836 OF 2009
JUDGMENT:-
This Criminal Appeal is filed by the appellant, who was the accused in Sessions Case No.246 of 2006, on the file of V Additional Sessions Judge, Rayachoty, challenging the judgment, dated 20.03.2009, where under the learned V Additional Sessions Judge, Rayachoty, found the accused guilty of the offence under Section 304 Part-II of the Indian Penal Code ("I.P.C." for short) as against the original charge under Section 302 of I.P.C. and convicted him under Section 235(2) of the Code of Criminal Procedure ("Cr.P.C." for short) and after questioning him about the quantum of sentence, sentenced him to suffer rigorous imprisonment for 7 years and to pay a fine of Rs.100/-, in default to suffer simple imprisonment for six months.
2) The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court for the sake of convenience.
3) The Sessions Case No.246 of 2006, on the file of V Additional Session Judge, Rayachoty, arose out of a committal 2 order in P.R.C.No.45 of 2006, pertaining to Crime No.41 of 2006 of Rayachoty Urban Police Station.
4) The case of the prosecution, in brief, according to the charge sheet filed by the Inspector of Police, Rayachoty Urban Police Station in Crime No.41 of 2006 of Rayachoty Urban Police Station under Section 302 of I.P.C. is as follows:
(i) The accused is native of Gudisenicheruvu, Peddamandem Mandal, Chittoor District. Presently, he is resident of Kummaramitta, Rayachoty Town. The defacto-
complainant S. Noorjahan (L.W.1) is resident of D.No.5/192, Rayachoty Town. One S. Imam Sab (hereinafter will be referred to as "deceased") was no other than the brother-in-law of L.W.1. The deceased was also resident of Kummaramitta, Rayachoty Town. The defacto-complainant (L.W.1) is no other than the sister-in-law of the deceased. She was blessed with four sisters and two brothers and among them she is the third one. L.W.2-Syed Bhashirun was given marriage to the deceased about seven years back. The deceased and L.W.2 were eking their livelihood by running a tea stall.
(ii) On 20.03.2006 by 9-00 p.m., accused was scolding L.W.1's brother-in-law's son. Noticing the same L.W.1 went there and questioned about the act. On that accused grew wild and beat L.W.1. Then L.W.2 intervened in the incident and she 3 was also beaten by the accused. L.W.1 and L.W.2 abused the accused for his act. Hence, accused bore grudge against them. While so, on the next day i.e., on 21.03.2006 accused who bore grudge against them, concealed the knife in his waist and went in front of L.W.1's house and started abusing them and by the time it was 8-30 a.m. On hearing the same, L.W.1 came out of her house and questioned the accused. Then the accused beat her. Noticing the same, the deceased intervened and then the accused took the knife out from his waist to his right hand and stabbed the deceased on his chest and escaped. On account of the said act, the deceased fell down. L.W.1, L.W.2, L.W.3-Sued Fakruddin, L.W.4-Shaik Khadar Vali and L.W.5-Shaik Haseena shifted the deceased to Government Hospital, Rayachoty. The duty Doctor declared the deceased as died.
(iii) Basing on the hospital intimation, L.W.16-Inspector of Police, Rayachoty, recorded the statement of L.W.1 and basing on the said statement, a case was registered and investigated into. The police conducted inquest over the dead body of the deceased on 21.03.2006 from 11-30 a.m. to 2-30 p.m. and during the inquest, blood stained wearing clothes of the deceased were seized. The inquest panchayatdars, who attended the inquest, opined that the accused murdered the deceased over a petty quarrel.
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(iv) L.W.16 during investigation visited the scene of offence and observed the same and seized blood stained earth and controlled earth and bangle pieces under the cover of panchanama attested by the mediators. On 21.03.2006 at 3-00 p.m. after the inquest was over, the dead body of the deceased was sent to L.W.15-medical officer, Government Hospital, Rayachoty for postmortem examination. The medical officer conducted postmortem examination and found ante mortem injuries and opined that the deceased died due to cardio respiratory failure due to injury to vital organs like heart and lungs due to stab injury.
(v) During the course of investigation, on 31.03.2006 on information L.W.16 along with staff and mediators i.e., L.W.12- Shaik Sadiq Ali and L.W.13-Lakshmipalli Nagaraju went to Anjaneyaswamy Temple, situated on Rayachoty-Rajampeta cross road and found the accused there. On seeing the police party, accused tried to escape. L.W.16 apprehended him. On interrogation, accused voluntarily confessed about the incident and it was recorded under the cover of panchanama attested by the mediators. L.W.16 arrested the accused. Pursuant to the confession, the accused lead the police party and mediators to his residence located in Kummarimitta and produced blood stained shirt and crime weapon i.e., knife and L.W.16 seized the 5 same under the cover of panchanama attested by the mediators on 31.03.2006 by 5-15 p.m. The investigating officer sent the seized incriminating materials to Regional Director, RFSL, Kurnool, through letter of advice through concerned Additional Judicial Magistrate of First Class, Rayachoty. The RFSL report is that human blood is detected on item Nos.1 to 4, 7 and 8 and blood group is "B". Hence, the charge sheet.
5) The learned Additional Judicial Magistrate of First Class, Rayachoty, took cognizance under the above provision of law and after appearance of the accused and after compliance of Section 207 of Cr.P.C., committed the case to the Court of Sessions and thereby it was numbered as Sessions Case and was made over to the V Additional Sessions Judge, Rayachoty. On appearance of the accused before the Court below, charge under Section 302 of I.P.C. was framed and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.
6) In order to establish the guilt against the accused before the Court below, P.W.1 to P.W.10 were examined and Ex.P.1 to P.14 and M.O.1 to M.O.8 were marked. After closure of the evidence of the prosecution, accused was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in, for which he denied the same and stated that he has no defence witnesses. 6
7) The learned V Additional Sessions Judge, Rayachoty, on hearing both sides and on considering the oral as well as documentary evidence, found the accused guilty of the offence under Section 304 Part-II of I.P.C. i.e., culpable homicide not amounting to murder, as against the original charge under Section 302 of I.P.C. and convicted him under Section 235(2) of Cr.P.C. and after questioning him about the quantum of sentence, sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs.100/-, in default to suffer simple imprisonment for six months. Aggrieved by the same, the unsuccessful accused filed the present Criminal Appeal challenging the judgment, dated 20.03.2009 in S.C.No.246 of 2006, on the file of V Additional Sessions Judge, Rayachoty.
8) Needless to point out here that as against the judgment of the learned V Additional Sessions Judge, Rayachoty, in convicting the accused under Section 304 Part-II of I.P.C. as against the original charge under Section 302 of I.P.C., there is no appeal filed by the prosecution. Under the circumstances, the scope of the appeal is confined to the offence under Section 304 Part-II of I.P.C.
9) Hence, in deciding this Criminal Appeal, the points for consideration are as follows:
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(1) Whether the prosecution before the Court below proved that the accused caused the death of the deceased by an act of culpable homicide not amounting to murder on 21.03.2006 and whether the prosecution proved the said offence against the accused beyond reasonable doubt?
(2) Whether there are any grounds to interfere with the judgment of conviction and sentence imposed against the appellant before the Court below?
POINTS:-
10) Sri Arun Kumar, learned counsel, representing the learned counsel for the appellant, would contend that the investigating officer invented his own procedure in conducting the investigation is illegal and arbitrary manner. There is lot of loopholes in the case of the prosecution which was not considered by the learned Additional Sessions Judge with regard to the confessional statement of the accused under the cover of panchanama and further the mahazar under which the weapon of offence was alleged to be seized. There was no signature of the accused on those documents which is fatal to the case of the prosecution. The scene of offence was deliberately shifted from stage to stage. The evidence of P.W.1 and P.W.2 is interested in nature. The independent witnesses did not support the case of the prosecution. The Court below sustained conviction basing on 8 the interested testimony of P.W.1 and P.W.2 which has no corroboration from the independent source. According to P.W.1, the scene of offence was in front of her house. According to scene observation report under Ex.P.4 and rough sketch under Ex.P.4 and evidence of P.W.10, the investigating officer, the scene of offence is located in front of the house of P.W.3. The prosecution failed to establish the exact scene of offence. On account of want of signature of the accused on Ex.P.6 and Ex.P.7, the whole recovery theory of the weapon of offence was concocted and fabricated. The prosecution did not examine the punch witnesses. P.W.8, one of the punch witnesses, did not support the case of the prosecution. The prosecution did not furnish Ex.P.6 and Ex.P.7 at the time of that recovery to the case which is a serious lacuna in the case of the prosecution and contrary to Section 100 (6) of Cr.P.C. P.W.10, the investigating officer, categorically admitted about the same in the cross examination and the Court below having given a positive finding in this regard further failed to hold that the case of the prosecution is doubtful. M.O.1 was planted deliberately by the investigating officer to strengthen the case of the prosecution.
11) The learned counsel for the appellant would rely upon the decision in Ramanand @ Nandlal Bharti vs. State 9 of Uttar Pradesh 1 to attack Ex.P.6 and Ex.P.7. He would further rely upon the judgment of the Hon'ble Supreme Court in Munikrishna @ Krishna etc., vs. State by Ulsoor PS in Criminal Appeal Nos.1569-1600/2022. He further contend that the whole case of the prosecution suffers with any amount of discrepancies and infirmities which was not taken care by the trial Court, as such, the appeal is liable to be allowed.
12) Sri Y. Jagadeeswara Rao, learned counsel, representing the learned Public Prosecutor, would contend that the Court below rightly looked into the evidence of P.W.1 and P.W.2 and with proper reasons believed the case of the prosecution. The Court below rightly believed the evidence of P.W.1 and P.W.2. Though the evidence of P.W.1 and P.W.2 is interested in nature, but their evidence cannot be disbelieved on that ground itself, provided if it is trustworthy. The accused is no other than the close relative of the deceased, P.W.1 and P.W.2. For silly reason, he committed the murder of the deceased. Though P.W.3 and P.W.4 did not support the case of the prosecution, but there is evidence of P.W.5 inquest panchayatdars and P.W.6 panchayatdar for mahazarnama. The prosecution examined P.W.7, who supported the case of the prosecution to certain extent. The prosecution could not 1 2022 LiveLaw (SC) 843 10 examine another punch witness for Ex.P.6 and Ex.P.7, as he died. P.W.8, the punch witness did not support the case of the prosecution and he was cross examined. He had no necessity to sign Ex.P.6 and Ex.P.7, if he did not act as punch witness. The medical evidence corroborates the oral evidence of P.W.1 and P.W.2 with regard to the manner of attack on the deceased. The learned Additional Sessions Judge by analyzation of the evidence, rightly convicted the accused and sentenced him, as such, the Criminal Appeal is liable to be dismissed.
13) Admittedly, P.W.1 and P.W.2 were the direct witnesses to the occurrence. It is a case where P.W.3 and P.W.4 did not support the case of the prosecution and on that ground, the evidence of P.W.1 and P.W.2 cannot be disbelieved.
Though the evidence of P.W.1 and P.W.2 is interested in nature, but, they are natural witnesses to the occurrence. It is a case where the accused is close relative to the family of P.W.1 and P.W.2. He is also close relative to P.W.1 and P.W.2 and the deceased. So, what the Court has to see is to scrutinize their evidence with care and caution.
14) Now, coming to the evidence of P.W.1, she deposed that Syed Bashirun is her younger sister. The deceased Imam Saheb is her husband. Fakurddin is the father of the deceased. Haseena, Srinivasulu and Khadervalli are their neighbourers. 11 Accused is the husband of the sister of her husband. Mahaboob Basha is her husband. Darbani is the wife of the accused. They are all residents of Kummaramitta, Rayachoty Town. The deceased died about one year ago. On the previous day night at 9-00 p.m., she was sitting in front of her house with one year old child of her husband's younger brother. Then the accused came there in drunken state and abused her and child. He also beat the child. When she questioned the accused, he beat her. Then her sister Bashirun, her husband and her father-in-law came there and questioned the accused. The accused beat her sister also. Then they all beat the accused. The accused went away saying that he will see their end in the morning. On the next day morning at 8-00 or 8-30 a.m., the accused came in front of the house and started abusing them. She came out and questioned the accused. Her younger sister and her husband also came there and questioned him. The accused beat her with hands. Then her sister and her husband came to her rescue and questioned the act of the accused as to why he was quarrelling with them. Then the accused took out a knife from his waist and stabbed the deceased in his left chest. The deceased fell down. The accused ran away. She, her sister, her father-in-law and Khadervalli shifted the deceased to Government Hospital, Rayachoty. Doctor examined him and declared him dead. Police 12 came to the Government Hospital and recorded her statement. It is Ex.P.1. They conducted inquest over the dead body of the deceased at Government Hospital. Police examined her during the investigation. M.O.1 is the knife with which the accused stabbed the deceased.
15) Coming to the evidence of P.W.2, the younger sister of P.W.1 and the wife of the deceased, she deposed that the deceased is her husband. Fakurddin is her father-in-law. P.W.1 is her elder sister. The accused is the husband of the sister of husband of P.W.1. They all are residing in the same street. Her husband died about one year ago. On the previous day night of the death of her husband, she and P.W.1 were with child in front of their houses. Accused came there in drunken state and abused the child. The child is the son of the brother-in-law of P.W.1. He also abused them and beat the child. P.W.1 questioned the accused. The accused abused and beat P.W.1. Then she (P.W.2) intervened. The accused beat her also. The neighbourers came there. Her husband also came there. She and P.W.1 beat the accused. The accused went away saying that he will see their end on the next day morning. On the next day morning at 8-00 p.m., the accused came to her and abused P.W.1. She and deceased went there and questioned the act of the accused. Again the accused abused and beat P.W.1. Then 13 her husband intervened. The accused abused and beat her husband. Her husband also beat the accused. There was scuffle between the accused and her husband and they pushed each other and went in front of the vacant space. There the accused took out the knife from his waist and stabbed her husband. M.O.1 is the knife with which the accused stabbed her husband on his left chest. The deceased fell down with bleeding injuries. Accused ran away. She, P.W.1 and Khadervalli and her father- in-law took the deceased to Government Hospital, Rayachoty in an auto. Doctor examined him and declared him as dead. Police came there and recorded the statement of P.W.1. They examined her.
16) According to P.W.3, he knows P.W.1 and P.W.2 and the husband of P.W.2 who is the deceased. They are all residents of their street. The accused is residing in another street. The deceased was killed in front of his (P.W.3's) house about one year ago. Two days prior to the death, he and his family members went to Dhobighat for washing clothes and returned back after two days of his death. Then somebody informed him that Imam Saheb was killed in front of his house. He does not know anything about this case. He did not see who killed Imam Saheb. Prosecution got declared him as hostile and 14 during cross examination he denied that he stated before police as in Ex.P.2.
17) P.W.4, the inquest panchayatdar, did not support the case of the prosecution. The prosecution impeached his testimony by cross examination. P.W.5 is another inquest panchayatdar, who supported the case of the prosecution. P.W.6 is the mahazar witness for observation of the scene of offence, who supported the case of the prosecution.
18) Turning to the evidence of P.W.7, he deposed that the deceased died about one year ago. On the date of his death, he was in his house. At 8-30 a.m., he heard commotion in their street and came out from his house. He saw the mob running in the street. He saw Imam Saheb lying in the street with the injury to his left chest in front of the house of P.W.3. He along with P.W.1 and P.W.2 and Fakurddin shifted Imam Saheb to the Government Hospital, Rayachoty in an Auto. Doctor examined him and found him dead. He did not see who stabbed the deceased, but he saw P.W.1 and P.W.2 and Fakurddin and some others at the place of incident. He heard from his neighbourers that in the previous day night, there was a quarrel between accused and P.W.1 and P.W.2 and the deceased. He came to know that the accused stabbed the deceased. The prosecution got declared him as hostile, as he did not support the case of 15 the prosecution fully and during cross examination he denied that he stated before police as in Ex.P.5 i.e., his Section 161 of Cr.P.C. statement.
19) Therefore, among the direct witnesses to the occurrence, P.W.1 and P.W.2 supported the case of the prosecution. P.W.3 another direct witness and P.W.7 another witness did not support the case of the prosecution. Though they did not support the case of the prosecution, but to the extent they supported the case of the prosecution can be looked into.
20) The Court below believed the evidence adduced by the prosecution and recorded an order of conviction. Now, in deciding the point for determination, the prime question that falls for consideration is as to whether the evidence adduced by the prosecution especially the evidence of P.W.1 and P.W.2 is believable and if so whether their evidence coupled with medical evidence and other evidence would establish the guilt against the accused.
21) The relationship between P.W.1, P.W.2 and the accused is not in dispute. P.W.2 is no other than the younger sister of P.W.1. Accused is no other than the brother-in-law of the husband of P.W.1, as he married the sister of the husband of P.W.1. Though the prosecution cited some independent 16 witnesses i.e., P.W.3 and P.W.7, they did not support the case of the prosecution. However, the extent to which they supported the case of the prosecution can be considered. P.W.1 is no other than the defacto-complainant. P.W.2 is the husband of the deceased. On the ground that both of them are interested in the case of the prosecution, their evidence cannot be disbelieved. If their evidence is trustworthy and believable, conviction can be sustained against the accused. Keeping in view the evidence is to be appreciated. Firstly, this Court would look into the defence of the accused during the cross examination of P.W.1 and P.W.2.
22) P.W.1 during cross examination deposed that the deceased has one brother and six sisters. One of the sisters of Imam Saheb is in Kuwait. She denied that she deserted her husband and is living in Kuwait. She was sending money from Kuwait to the deceased and he was lending money to Auto drivers. She denied the suggestion that there used to be quarreled between the deceased and his borrowers. The width of the road running in front of her house is about 15 feet. The house of Umar Saheb is situated opposite to her house. To the west of the house of Umar Saheb, there is vacant space and a house under construction up to basement level. To the further west of that vacant space there is a lane. On the western side 17 of that lane the house of Peddaveeti Srinivasulu is situated. The road runs from South to North. The road in front of her house runs from West to East. The incident occurred on the road in front of the house of Peddaveeti Srinivasulu. Bashirun and the deceased were residing by the side of her house. She denied a suggestion that as her husband was sending money to the accused and his wife, she bore grudge against the accused and his wife. She did not give any report to the police in respect of the quarrel that took place on the previous day night since the accused is the husband of her sister-in-law. She denied that no quarrel took place on the previous day night of the incident as deposed by her. The incident happened in the morning of the day of incident, lasted for about five minutes. She denied that nothing took place as deposed by her and that she was not present when the deceased received injuries and died. She denied that somebody killed Imam Saheb in front of the house of Peddaveeti Srinivasulu during night and that no incident took place in front of her house as deposed by her and accused did not quarrel with her and her sister and the deceased and the accused did not stab the deceased with M.O.1. She denied further suggestion that there were several enemies to the deceased in connection with the finance business and enemies 18 killed him during the night and that she foisted false case against the accused and that she is deposing false.
23) P.W.2 during the cross examination denied that nothing took place as deposed by her and the enemies of her husband killed him in front of the house of Peddaveeti Srinivasulu during night and that she is giving false evidence at the instance of P.W.1.
24) By virtue of the defence of the accused as above, there is no dispute that the death of the deceased was due to homicidal. The contention of the accused is that the enemies of the deceased killed him. The above said defence of the accused is totally baseless in my considered view. The accused is no other than the brother-in-law of the husband of P.W.1. It is rather improbable that P.W.1 spared the real culprits and implicated the accused. The so-called grudge developed by P.W.1 against the accused is not at all probabalized in any way. The root cause for the incident was the quarrel said to be took place one day prior to the incident in the evening. P.W.1 categorically explained in cross examination that she did not lodge any report with police with regard to previous incident, as the accused is husband of her sister-in-law. The above explanation offered by P.W.1 is quietly convincing. 19
25) On scrutinizing the evidence of P.W.1 and P.W.2, it is clear that they withstood the marathon cross examination. Accused got elicited minute details of the topographic particulars and he did not further dispute the topographic particulars spoken to by P.W.1 that too in cross examination. It is the contention of the accused that the prosecution witnesses shifted the scene of offence from stage to stage. The above said contention deserves no merits for the reason that the evidence of P.W.1 is categorical that the quarrel started in front of her house. It is elicited from the mouth of P.W.2 that the quarrel started at the house of P.W.1 and both the accused and deceased pushed with each other and they went in front of the vacant space. The contention of the appellant is that the scene of offence as spoken by P.W.2 is different and as spoken by P.W.3 is different. It is very difficult to accept such a contention. According to the evidence of P.W.3, the offence took place in front of his house in a street. P.W.1 categorically deposed in cross examination that the incident occurred on the road in front of the house of Peddaveeti Srinivasulu. Here P.W.3-Peddaveeti Srinivasulu categorically deposed that the deceased was killed in front of his house about one year back. Here, P.W.3 supported the case of the prosecution with regard to the scene of offence. So, the evidence of P.W.1, P.W.2 and P.W.3 is quietly consistent 20 with regard to the place of offence. What P.W.2 deposed is that the quarrel started at the house of P.W.1 and both the deceased and accused went into open space. Having scrutinized the evidence on record, absolutely, the contention of the appellant that the prosecution witnesses shifted the scene of offence from stage to stage deserves no merits.
26) Admittedly, some omissions are suggested to P.W.1 and P.W.2 during cross examination and are further elicited from the mouth of P.W.10, investigating officer. Now, it is a matter for consideration to decide as to whether such omissions are fatal to the case of the prosecution. During cross examination, P.W.1 denied that she did not state in Ex.P.1 and in Section 161 of Cr.P.C. statement that the father-in-law of Basheerun came to the place of quarrel and questioned the accused and that she did not state that the deceased Imam Saheb came to the place of quarrel and questioned the accused in the previous night and that she did not state in Ex.P.1 and Section 161 of Cr.P.C. statement that the accused beat the child and he went away threatening to see their end in the morning. P.W.2 during cross examination denied that she did not state in her Section 161 of Cr.P.C. statement that she along with P.W.1 were with a child and the accused beat the child and that her husband was also present and that she did not state that she and P.W.1 beat the 21 accused and that the accused went away saying that he will see their end.
27) P.W.10, the investigating officer, during cross examination, deposed that P.W.1 did not state before him in her Section 161 of Cr.P.C. statement or in Ex.P.1 that her father-in- law Basheerun and deceased came to the place of quarrel and that they questioned the act of the accused on the previous day and that the accused went away saying that he will see their end. He deposed in cross examination that P.W.2 did not state before him in her Section 161 of Cr.P.C. that she along with P.W.1 were with child and accused beat the child and her husband was also present by then and that she and P.W.1 beat the accused and the accused went away saying that he will see their end. Basing on these omissions, the contention of the accused is that the case of the prosecution is false.
28) Now, this Court has to see whether P.W.1 and P.W.2 deviated from the substratum of the case of the prosecution and introduced the wholly improvements. To decide the same, it is pertinent to look into the contents of Ex.P.1. As seen from Ex.P.1, the allegations are that on 20.03.2006 at 9-00 p.m., the accused was scolding, the son of her brother-in-law Khadar Basha and she questioned the act of the accused for which the accused beaten her. He also abused Basheerun and beaten her. 22 Keeping the same in view, on 21.03.2006 at 8-30 a.m., he came again and abused and she came out and questioned the act of the accused and then the deceased and sister of the defacto- complainant intervened and then the accused removed the knife from his waist and stabbed the deceased and then the accused absconded. So, the substratum of the case of the prosecution is with regard to the incident happened on 20.03.2006 at 9-00 p.m., i.e., previous night and the incident happened on the next day. Even if the omissions deposed by P.W.1 and P.W.2 are excluded from consideration, the substratum of the case of the prosecution remained unchanged. The evidence of P.W.1 with regard to act of accused against the son of brother-in-law of P.W.1 on the previous night and that he beaten her and also her sister and further the incident happened on 21.03.2006 at 8-30 a.m., i.e., accused attacking the deceased is spoken to by P.W.1. Even if the omissions are excluded, the evidence of P.W.1 with regard to the previous day incident and with regard to the incident happened on the date of offence has basis from Ex.P.1. Under the circumstances, the omissions that are suggested to P.W.1 and P.W.2 and elicited during the cross examination of investigating officer are of no use to the defence of the accused. It is not the case of the accused that previous incident spoken to by P.W.1 as the accused abused child and 23 further the incident happened on the date of offence i.e., attack made by the accused on the deceased are the omissions. Therefore, there is consistency in the evidence of P.W.1 and P.W.2 with regard to the manner of attack and place of attack and the motive for the attack and the incident of attack. It is really improbable that P.W.1 and P.W.2 spared the real culprits, if really somebody murdered the deceased.
29) Admittedly, it is a case where the case of the prosecution is that the investigating officer arrested the accused and recovered M.O.1. The prosecution examined P.W.8, the panchayatdar, who deposed that police did not arrest the accused in his presence. On 31.03.2006 at 5-40 p.m., Rayachoty Police obtained his signatures on two written papers when he was outside M.R.O. Office. He signed on Ex.P.6 and Ex.P.7 panchanamas. He does not know when Sadaq Ali signed in Ex.P.6 and Ex.P.7. The prosecution got declared him as hostile and during cross examination he denied that on 31.03.2006 at 4-00 p.m., C.I. of Police arrested the accused near Anjaneyaswamy Temple situated at Rayachoty-Rajampet cross road in his presence and the presence of Sadaq Ali and that they acted as panchayatdars and in pursuance of the voluntary statement made by the accused under Ex.P.6, the police recovered M.O.1 knife and that he is deposing false. 24
30) There is evidence of P.W.10, the Inspector of Police, speaking to the fact that in the presence of P.W.8 and Sadaq Ali, he arrested the accused under Ex.P.6 and in pursuant of the disclosure statement, he recovered M.O.1. In fact, P.W.8 has no business to simply oblige the police in putting signatures on Ex.P.6 and Ex.P.7. So, for the reasons best known, he turned hostile to the case of the prosecution. The prosecution could not examine Sadaq Ali as he died as evident from the record.
31) This Court has gone through Ramanand's case (1 supra) wherein the Hon'ble Supreme Court held that to draw discovery panchanama as contemplated under Section 27 of the Evidence Act, the investigating officer should have called two independent witnesses. Now, coming to the present case on hand, it is a case where the investigating officer secured the presence of P.W.8 and Sadaq Ali and Ex.P.6 and Ex.P.7 contains their signatures. It is not a case where the investigating officer without resorting to join independent witnesses for Ex.P.6 and Ex.P.7 made recovery under the cover of police proceedings. Simply because P.W.8 turned hostile, the evidence of P.W.10 investigating officer cannot be disbelieved. The fact is that the investigating officer secured P.W.8 and Sadaq Ali to act as independent panchayatdars, but unfortunately, P.W.8 turned hostile and Sadaq Ali could not be examined as he died. 25 Therefore, it is not a case where the evidence of investigating officer is to be disbelieved on the sole ground that P.W.8 turned hostile. Hence, the above said decision is of no use to the case of the appellant, as the investigating officer completed the joining of two independent witnesses to Ex.P.6 and Ex.P.7.
32) Coming to another decision of the Hon'ble Supreme Court in Criminal Appeal Nos.1597 - 1600/2022, it dealt with the essential principles relating to proving of case basing on the circumstantial evidence. Here the prosecution sought to prove the guilt against the accused basing on the direct evidence. Hence, the above said decision is of no use to the case of the appellant.
33) Admittedly, Ex.P.6 and Ex.P.7 did not disclose that investigating officer obtained the signatures of the accused on Ex.P.6 and Ex.P.7. The investigating officer was not cross examined in this regard. This Court has no reason to disbelieve the recovery of M.O.1 spoken to by P.W.10 pursuant to the disclosure statement made by the accused under Ex.P.6. The recovery was effected under the cover of Ex.P.7. It is to be noticed that it is a case where P.W.1 and P.W.2 categorically deposed that accused removed knife from his waist and attacked the deceased. So, the minute particulars of the weapon were spoken to by P.W.1 and P.W.2. On the ground that P.W.8 turned 26 hostile to the case of the prosecution, the recovery projected by the prosecution basing on Ex.P.6 and Ex.P.7 cannot be disbelieved.
34) Turning to the contention of the appellant that the investigating officer did not comply Section 100(6) of Cr.P.C. by furnishing Ex.P.6 and Ex.P.7, this Court would like to make it clear that the provisions of Section 100 of Cr.P.C. are applicable when there was a house search. Here the case of the prosecution is that the investigating officer effected recovery of M.O.1 pursuant to the disclosure statement made by the accused. So, it is the accused who lead the police party and shown M.O.1. Therefore, the recovery of M.O.1 cannot be equated to that of the procedure contemplated under Section 100 (6) of Cr.P.C. which is relating to house search.
35) Coming to the evidence of P.W.9, the medical officer, on 21.03.2006 on the requisition from S.H.O., Rayachoty Police Station, he conducted autopsy on the dead body of the deceased Syed Imam Saheb. He found a stab injury over the frontal side of chest i.e., 5 c.m. away from the left side of nipple, adjacent to the sterna edge, Elliptical in shape and 2.5 x 2.5 x 10.00 c.ms. in size. He found the small lineal abrasion over the right side of frontal chest just below the nipple. According to him, the deceased would have died of due to cardio 27 respiratory failure, due to injury to vital organs like heart and lungs, due to stab injury. Ex.P.8 is the postmortem report. The injury found by him in Ex.P.8 is possible with weapon like M.O.1. Therefore, the cause of death is homicidal by virtue of the evidence of P.W.9 coupled with Ex.P.8, postmortem report. The accused did not dispute the cause of death. Even according to him, the deceased was murdered. His contention is that some enemies murdered the deceased. The above said contention advanced by the accused is baseless as this Court already pointed out. Hence, the prosecution is able to prove further that the death of the deceased was due to homicidal. This Court has no reason to disbelieve the evidence of P.W.1 and P.W.2 that the accused stabbed the deceased on the date of offence thereby caused his death.
36) P.W.10, the investigating officer, spoken about the fact that on 21.08.2006 having received the hospital intimation under Ex.P.9, he proceeded to the Government Hospital, Rayachoty and recorded the statement of P.W.1 and registered it as a case in Crime No.41 of 2006 under Section 302 of I.P.C. He conducted inquest over the dead body of the deceased by returning to the Government Hospital, in the presence of witnesses. He forwarded the dead body for postmortem. Before that he conducted inquest and the inquest panchayatdars opined 28 that the death was due to stab injury. He spoken about the examination of the blood relatives of the deceased. He further spoken about the seizure of M.O.3 blood stained shirt and M.O.4 blood stain Baniyan and M.O.5 underwear. He spoken about the visiting of scene of offence and drawing of rough sketch. As pointed out he further spoken about the arrest of the accused and recovery of M.O.1 under the cover of Ex.P.6 and Ex.P.7. According to him, he obtained RFSL opinion also under Ex.P.4 and item Nos.1 to 4, 7 and 8 contains human blood and the group is "B" group. Except eliciting that P.W.1 and P.W.2 improved the evidence on certain aspects, there remained nothing in his cross examination to disbelieve the investigation conducted by P.W.10. This Court is of the considered view that the evidence on record is believable and the evidence on record further proved the fact that the accused caused the death of the deceased by stabbing on the chest of the deceased. As seen from the judgment of the Court below, the learned V Additional Sessions Judge, Rayachoty dealt with each and every contention raised by the learned defence counsel and answered the same with proper reasons. Further the Court below with reasons held that the act of the accused would come under the purview of culpable homicide not amounting to murder and the said findings are not challenged by the prosecution. 29
37) Having regard to the above, this Court is of the considered view that the prosecution before the Court below proved beyond reasonable doubt that the accused caused the death of the deceased by doing an act which amounts to culpable homicide not amounting to murder. In my considered view, the learned V Additional Sessions Judge, Rayachoty with proper reasons found guilty of the appellant and rightly convicted and sentenced him as above. Hence, I see no reason to interfere with the judgment of the learned V Additional Sessions Judge, Rayachoty.
38) In the result, the Criminal Appeal is dismissed.
39) The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the order of this Court to the trial Court on or before 27.04.2023 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the appellant and to report compliance to this Court.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt. 20.04.2023 PGR 30 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU CRL. APPEAL NO.1836 OF 2009 Registry to circulate a copy of this judgment to the Court below on or before 27.04.2023.
Date: 20.04.2023 PGR