Andhra Pradesh High Court - Amravati
Tottaramudi Suseela Chittemma, vs The State Of Ap Rep By Its Pp Hyd., on 20 August, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
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THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
Criminal Appeal No. 174 of 2007
JUDGMENT:(per Hon'ble Sri Justice C.Praveen Kumar)
1) The sole accused in Sessions Case No. 388 of 2005 on the file of the III Additional Sessions Judge [Fast Track Court], Bhimavaram, is the Appellant herein. She was tried for the offence punishable under Section 302 Indian Penal Code [for short 'IPC'] for causing death of one Tottaramudi Israel [the 'Deceased'] by beating him with a casurina stick on his back, head and legs indiscriminately on 13.12.2001 at about 9.00 A.M., at Gollavanithippa village. By its Judgment, dated 31.01.2007, the learned Additional Sessions Judge, convicted the accused for the offence punishable under Section 324 IPC and sentenced her to suffer rigorous imprisonment for one and half year and also to pay a fine of Rs.1,000/- in default, to suffer Simple Imprisonment for a period of three months. The remand period undergone, if any, by the accused was given set-off.
2) The facts, as culled out from the evidence of the prosecution witnesses, are as under:
i. Tottaramudi Yesu [PW5] is the adopted son and Tottaramudi Prakash [PW4] is the grandson of the deceased. On 13.12.2001, the deceased gave Rs.1/- each to PW5 [daughter] and son [PW4] for purchasing eatables. When the said children went to the roadside for purchasing the 2 eatables, Tatapudi Samson [LW7], who is the maternal grandson of appellant snatched away Rs.1/- from the hands of PW4. Then, PW4 reported the incident to the deceased, who accompanied by PW4 approached Tatapudi Samson [LW7] and on questioning him about his behavior, a wordy altercation ensued between them. LW7 reported the said altercation to the accused, who is none other than his maternal grandmother. Thereupon, the appellant bore grudge against the deceased and when he was was returning home, she picked up a casurina stick and beat him on his back, head and legs indiscriminately inflicting injuries on him. The said incident was witnessed by LW1, LW2, LW4 and others.
ii. On 13.12.2001 at about 2.00 PM while PW8 -Head Constable-747 was in Police Station, he received a report from the injured/deceased. Basing on which, a case in Cr. No. 90/2001 came to be registered under Section 324 of IPC. Ex. P5 is the FIR. He sent the injured/deceased to the Government General Hospital, Bhimavaram, for treatment. During the course of investigation, he observed the scene of offence in the presence of Kopparthi Ramarao [LW9-died] and PW9. While undergoing treatment, the deceased succumbed to injuries on 14.12.2001 at 7.30 AM. On receipt of death intimation from PW6, PW8 altered the section of law to Section 302 IPC and issued altered FIR to all concerned 3 authorities. Further investigation, in this case, was done by the Inspector of Police. According to him, on receipt of the copy of the FIR, he reached the scene of offence and in the presence of LW9 [died], one Merepe Subba Rao and T. Moshe, held inquest over the dead body. Ex.P12 is the inquest report. After conducting the inquest, the dead body was sent to Government Hospital for conducting autopsy. PW6 - the Civil Assistant Surgeon, Community Health Center, Bhimavaram, conducted autopsy over the dead body and issued Ex.P2 preliminary postmortem examination report.
iii. After receipt of Ex.P2, PW10-Circle Inspector of Police sent the samples, which were preserved by PW6 at the time of post-mortem to R.F.S.L., Vijayawada through S.D.P.O. Narsapur. Upon receipt of Ex.P3 from R.F.S.L., Vijayawada, and obtaining Ex.P4 from PW6, he visited Government General Hospital, Bhimavaram, examined and recorded PW6 statement. Later, on receipt of a Memo from PW10, PW11- Sub-Inspector of Police filed the charge-sheet. iv. On appearance of the accused, copies of all documents as required under Section 207 Cr.P.C. were furnished and as the case is triable by a Court of Session, it was committed to the Court of Session under Section 209 Cr.P.C. On appearance of the accused, charge under Section 302 IPC 4 came to be framed, read over and explained to the accused, to which he pleaded not guilty and claimed to be tried.
3) To substantiate its case, the prosecution examined P.Ws.1 to 12 and got marked Ex.P1 to Ex.P13, beside marking MO.1. After completion of the prosecution evidence, the accused was examined under section 313 Cr.P.C with reference to the incriminating material appearing against her in the evidence of prosecution witnesses, to which, she denied, but did not adduce any oral or documentary evidence in support of her plea.
4) Relying upon the evidence of PW1 to PW5, PW7 and the evidence of the Doctor, the learned Session Judge, convicted the accused. Challenging the same, the present appeal came to be filed by the accused.
5) The learned counsel for the Appellant would contend that, there is any amount of doubt with regard to the presence of PW1 to PW5 and PW7 at the scene. According to him, PW1 to PW5 and PW7 are interested witnesses and their evidence cannot be accepted without any independent corroboration. He pleads that in order to believe the evidence of PW4, more particularly, when he is aged about 8 years, there should be some corroboration, since, the only independent witness [PW9] examined by the prosecution turned hostile. Hence, pleads that the accused is entitled for the benefit of doubt.
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6) On the other hand, the learned Public Prosecutor would contend that, the evidence on record, more particularly, the evidence of PW1 to PW5 is consistent and natural and can be accepted to base a conviction. Apart from that, he also contends that, the evidence of PW1 to PW5 would establish that there is a motive for the accused to commit the offence. The learned Public Prosecutor would contend that the evidence of child witness, if it inspires confidence, can be made the basis to convict the accused. It is his case that, there are no suggestions to show that his evidence is an outcome of tutoring, hence, there is no justification to disbelieve his evidence. In other words, his plea is that the evidence of child witness is trustworthy and the same can be believed. Since, the oral evidence corroborates the medical evidence, in all aspects, pleads that, findings given by the Trial Court requires no interference.
7) The point that arises for consideration is "whether there is any evidence available on record to convict the Accused under Section 324 IPC?
8) It is to be noted here that, the law was set into motion, by the injured/deceased, by lodging the FIR. Therefore, it would be useful to refer to the evidence of the eye witnesses, more particularly, the evidence of PW1 to PW5 and PW7.
9) (i) PW1 in his evidence-in-chief deposed that, on 13.12.2001 at 7.00 A.M., while he was present in his house, he witnessed the 6 accused beating the deceased with a stick on his back. The grandson of the accused picked up the stick from the hands of the accused, but, again the accused picked up wooden piece from the fence of PW3 and tried to beat the deceased. He took away the said wooden piece and threw it away. PW1 and PW7 took the deceased-injured to II Town Police Station, where the deceased lodged a report with the police. In cross-examination, PW1 specifically stated that, accused beat the deceased with Juvvakarra [Eucalyptus stick] in-front of his house. He denied the suggestion that, the deceased fell on the gravel road and due to his old age. He also denied the suggestion that, there were disputes between him and younger son of accused, by name, Chinna, and that, Ex-Sarpanch of their village resolved the disputes between him and the son-in-law of the accused. He also denied the suggestion that, Ex-Sarpanch of their village admonished him and as a result, he bore grudge against the accused and that he is deposing false. He specifically denied that, he did not witness the incident and that himself and PW7 are deposing false. From the evidence of this witness, it is evident that, the deceased was attacked by the deceased with Juvvakarra [Eucalyptus stick].
10) Coming to the evidence of PW2, who was also examined as direct eye witness to the incident, his evidence is to the effect that, on the date of incident at about 9.00 A.M. or 10.00 A.M., while he was present at his house, he noticed the deceased coming from 7 R.C.M. School towards his house and when reached the house of PW1, the accused came from his back and beat the deceased with a stick. LW7 picked out the stick from the hands of accused and went away. Again, the accused picked up a wooden piece from the house of one Merepe Mariyads to beat the deceased. Meantime, PW7 and PW1 admonished the accused and took away the said wooden piece from her hands, and also took the injured to Rural Police Station, Bhimavaram.
11) In cross-examination, PW2 admits that, a case is pending against him, his son [PW7] and his wife. He avers that, his son [PW7] contested as Sarpanch of their village on behalf of Congress Party. He denied the suggestion that, the accused contested as Ward Member in their village. He specifically states that, the incident took place in-front of the house of PW1, but, denied the suggestion that, one cannot see anything happens on the R.C.M. road from his house and that he is deposing false against the accused due to political rivalry. PW2 states that, he witnessed the incident within 10 yards of distance and identified the stick used in the commission of offence.
12) Similar is the version of PW3, who speaks about the accused beating the deceased with a stick and the deceased falling down. In the cross-examination, PW3 states that, PW2 is her Nephew. Since three years, PW3 lost her vision and cannot see. She denied the suggestion that, she is deposing false on the instigation of PW7 and PW2.
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13) Coming to the evidence of PW4, who was a child witness, aged about 8 years, at the time of incident, and who is the grandson of the deceased. His evidence shows that, on 13.12.2001, his father gave Rs.1/- each to him, his brother and sister. Thereafter, himself, his sister purchased eatables, but, his brother did not purchase anything. PW4, his brother and sister went to school. While, PW4, his brother and sister were watching the grandson of the accused playing rural game [Bathcalata], LW7 snatched away Rs.1/- from the hands of his brother and refused to return the rupee on his request. His brother and sister went to his house weeping and complained to the deceased about PW7 snatching of Rs.1/-. Then, the deceased went to the school and questioned LW7 of his acts. There, LW7 tried to beat the deceased with coconut leaves stem and left the place saying 'Era Lanjakodaka' and that he would bring his grandmother to see his end. When the deceased left the place and was returning to his house, the accused came from his back, beat him with survey stick twice on his lead, legs and on his back. Then, PW1 and PW7 snatched away the stick from the hands of the accused and took the deceased to the police station. Later, the deceased succumbed to the injuries in the hospital.
14) In cross-examination, PW4 admits that, he was 8 years old at the time of incident. PW7 was his uncle by courtesy and he is the son of sister of his grandfather. At the time of incident, he was in his house. Police examined him, two days after the incident. He 9 narrated the facts to the police at the time of examination under Section 161 Cr.P.C., and the descriptive particulars of stick, which was used in the commission of offence. He denied the suggestion that at the instigation of PW7 and PW2, he is deposing false and that he was tutored by them.
15) PW5 is the son of the deceased. His evidence corroborates the evidence of PW1 to P4, in all material aspects. He deposed that, he witnessed the accused beating the deceased with a stick on his head, legs and back, four times. PW7 and PW1 took the deceased-injured to police station. Thereafter, the deceased was admitted in Government Hospital, Bhimavram, and subsequently died, on 14.12.2001, at the hospital. PW5, PW7 and PW1, his wife and some other were present at the time of inquest. He identified the weapon [stick] used in the commission of offence. Though, the prosecution cross-examined him at length, nothing useful came to be elicited to discredit his testimony.
16) The evidence of PW7 corroborates the evidence of PW1 to PW5 in all material aspects. PW2 is his father. PW7 was the Sarpanch of the village from 1988 to 1995. When he and PW3 were standing infront of his house, he witnessed LW7 taking away the stick from the hands of the accused. But, again the accused brought a wooden piece from the house of Merepe Mariyadas and tried to beat the deceased-injured. He witnessed the accused beating the deceased on his backside with a stick. He noticed the injuries on the head, backside and legs of the deceased-injured. 10 He and PW1 took the deceased to the Rural Police Station, Bhimavaram, where the deceased lodged a report. Later, he came to know that the deceased died in the hospital. He was present at the time of inquest. Though, he was also cross-examined at length, but nothing useful came to be elicited to discredit his testimony.
17) The rest of the witnesses are all official witnesses.
18) One of the argument advanced by the learned counsel for the appellant is that, PW4 being a child witness aged about 8 years at the time of the incident cannot be accepted, as his version is an outcome of tutoring by the family members with whom he was staying.
19) It is a well established principle of law that, child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaked and moulded, but it is also an accepted principle that if after careful scrutiny of their evidence, the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in accepting the evidence of a child witness.
20) Though, the learned counsel for the appellant tried to contend that the version of PW4 is an outcome of tutoring by the family member, since, he was staying with them right from the date of the incident, but, strangely, no suggestion to that effect was given to the witness. On the other hand, the suggestion was 11 that, at the instance of PW7 and PW2, he was deposing false against the accused.
21) From the manner, in which, the cross-examination was done and the answers elicited, it is evident though he was aged about 8 years at the time of the incident, the answers elicited indicate that he was present at the scene and capable of understanding the things that have occurred. Further, there is no evidence on record to show that the evidence of PW4 was an outcome of tutoring. As stated by us earlier, no suggestion was given to PW4 that he was tutored to speak in such manner. To a suggestion that the PW7 and PW2 tutored PW4 to speak false was denied and the suggestion remained a suggestion.
22) As observed earlier, the other evidence on record establishes the acts of the accused in beating the accused which corroborates the evidence of PW1 to PW5 and PW7 in all material aspects. Therefore, it cannot be said that the accused was not responsible for the incident in question.
23) Coming to the quantum of sentence, it is to be noted here that, the incident took place in the year 2001 and the conviction and sentence of one and half was imposed in the month of January 2007. The appeal was filed in the year 2007 itself. It is come up for hearing after 13 years. The counsel for the appellant would submit that, he does not know the whereabouts of the appellant and that she was more than 50 years when the appeal 12 was entrusted to him. Since she has already undergone nearly five [05] months of imprisonment, pleads for reduction of sentence. The same is not seriously contested by the learned Public Prosecutor.
24) Having regard to the circumstances and the facts in issue, the sentence of imprisonment of one and half awarded by the Trial Court is reduced to the period already undergone, while confirming the conviction and the fine imposed.
25) With the above direction, the appeal is disposed of. No order as to costs.
_______________________________ JUSTICE C. PRAVEEN KUMAR Date: 20.08.2020 SM.
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THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR Criminal Appeal No. 174 of 2007 Date: 20.08.2020 SM.