Andhra Pradesh High Court - Amravati
Salapakshi Lokanatham, Spsr Nellore ... vs State Of A.P.,Rep.By Public ... on 8 December, 2022
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THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.1538 OF 2010
JUDGMENT:-
This is a Criminal Appeal filed by the appellant/accused in S.C.No.116 of 2008, on the file of the Principal Sessions Judge, Nellore Division, questioning the judgment, dated 08.10.2010 in the said Sessions Case, whereunder the learned Principal Sessions Judge, Nellore Division, as against the charge framed under Section 302 of Indian Penal Code ("I.P.C." for short), found the appellant/accused guilty of the offence under Section 304 II of I.P.C. and after questioning the him about the quantum of sentence, sentenced him to suffer rigorous imprisonment for five years and to pay fine of Rs.500/-, in default to suffer simple imprisonment for three months. So, the appellant is the unsuccessful accused in Sessions Case No.116 of 2008 before the Principal Sessions Judge, Nellore.
2) The parties to this Criminal Appeal will hereinafter be referred as described before the trial Court for the sake of convenience.
3) The Sessions Case No.116 of 2008 arose out of P.R.C.No.1 of 2006, on the file of Additional Judicial Magistrate 2 of First Class, Kovur in Crime No.87 of 2005 of Allur Police Station, which was committed to the Court of Sessions by the learned Additional Judicial Magistrate of First Class, Kovur, by an order, dated 18.04.2007.
4) The case of the prosecution, in brief, according to the averments in the charge sheet filed by the police is as follows:
(i) Accused is originally native of Sri Kalahasthi. He migrated to Kovur. One Salapakshi Uma (hereinafter be referred to as "deceased") is the wife of accused and native of Singapet Village. Firstly, the deceased was given in marriage to one Subbarayudu of Proddutur. As Subbarayudu harassed the deceased by suspecting her fidelity, she came out to Kovur by discarding him. Later, about 4 ½ years prior to 02.10.2005, she was given in marriage to accused. Accused and deceased were blessed with two children. As the accused and his family members fell in debts, he left Kovur along with his wife and children and came out to Singapet and started residing near his in-laws house. Since four months prior to the occurrence, the deceased developed illegal contact with one Seenaiah of Singapet Village. Having sensed it, the accused warned her 3 several times, but she did not care the warnings. As the deceased did not mend her way, L.W.1 asked the accused to keep his family separately.
(ii) Ten days prior to 02.10.2005, the accused came out to a thatched house at S.T. Colony and are residing there. On 02.10.2005 night the accused consumed cheap liquor by mixing with spite cool drink. Both the accused and the deceased slept on two cots separately in front of the house. At 11-00 P.M. accused wakeup as his daughter wept and found the deceased was not on cot. On suspicion, he peeped into the house and noticed the deceased with her paramour Seenaiah on a mat in sexual intercourse. Then the accused bore much angry, called L.Ws.2 and 3, who are the neighbours, showed them the scene.
He stood in the exit of the house by arming the "Surakathi" and called Seenaiah to come out. It was dark by then. But, the deceased came to the exit gate. Then the accused with an intention to kill her stabbed her with "Surakathi" powerfully below her left collar bone, due to which she fell down with cries. L.Ws.2 and 3 witnessed the occurrence and rushed to the house of L.W.1 and informed the same to him and others. Later, 4 L.Ws.1, 4 to 6 rushed to the spot and found the deceased dead in the house. Accused ran away towards North-West.
(iii) L.W.1 got the written report with the assistance of L.W.7 and gave it to Allur Police Station on 03.10.2005 at 3-00 A.M. L.W.15 registered it as case in Crime No.87 of 2005 under Section 302 of I.P.C. and submitted express F.I.R. to all the concerned. L.W.16 took up investigation. He visited the scene of offence, held inquest over the dead body of the deceased in the presence of Panchayatdars (L.Ws.9 to 11) and sent the dead body to Government Hospital for autopsy. On 04.10.2005 at 5-00 P.M. he arrested the accused in the presence of two mediators. Accused admitted the offence. He disclosed that after the commission of offence while running away to North- West, he threw the weapon ("Surakathi") on the way in the bushes. Police drafted Mahazarnama duly attested by the mediators. Accused lead the police party and mediators to Singapet and showed the crime weapon in the bushes. L.W.16 seized the same in the presence of two mediators under the cover of Mahazar. Later, accused was sent for remand. L.W.14, who conducted autopsy over the dead body of the deceased, issued postmortem report opining that the deceased died due to 5 severe bleeding injury to the left lung. He also treated L.W.3, who was slashed by the accused with "Surakathi" and issued wound certificate opining that he sustained simple injury. Hence, the charge sheet.
5) The learned Additional Judicial Magistrate of First Class, Kovur, took cognizance of the case under Section 302 of I.P.C. and after complying the necessary formalities regarding supplying copies of documents, committed the case to the Court of Sessions by virtue of committal order, dated 18.04.2007. Thereupon, it was numbered as Sessions Case.
6) On appearance of the accused before the Principal Sessions Judge, Nellore Division and after following the procedure under Section 228 of Code of Criminal Procedure ("Cr.P.C." for short), a 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. During the course of trial, on behalf of the prosecution, P.Ws.1 to 9 were examined and Exs.P.1 to P.9 were marked. Ex.D.1 was marked during the cross examination of P.W.3. Further M.O.1 was marked on behalf of the prosecution.
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7) After evidence of prosecution was completed, accused was examined under Section 313 of Cr.P.C., for which he denied the incriminating circumstances and stated that he has no defence evidence.
8) The learned Principal Sessions Judge, Nellore Division, on hearing both sides and on considering the oral as well as documentary evidence on record, gave finding that the entire episode has taken place in a spur of movement when the accused found the deceased in compromising state with her paramour, though he cautioned her not to do the same and that the incident in question was happened due to sudden and grave provocation and that the case would come within the mischief of Section 300 exception I of I.P.C., culpable homicide not amounting to murder and that the offence committed by the accused would fall under Section 304 II of I.P.C., as such, convicted him for the above offence and after questioning him about the quantum of sentence, sentenced him to suffer rigorous imprisonment for five years and to pay fine of Rs.500/-, in default to suffer simple imprisonment for three months. Aggrieved by the same, the accused filed the present Criminal Appeal.
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9) It is to be noticed as against the finding of the learned Principal Sessions Judge, Nellore Division that the prosecution did not prove the offence under Section 302 of I.P.C., but could only prove Section 304 II of I.P.C., there is no appeal filed by the State.
10) Hence, the point for determination is whether the evidence on record before the trial Court would prove the offence under Section 304 II of I.P.C. beyond reasonable doubt i.e., culpable homicide not amounting to murder?
11) To bring home the guilt against the accused, the prosecution examined, as pointed out, as many as nine witnesses. P.W.1 is the defacto-complainant and father of the deceased. P.Ws.2 and 3 are said to be the direct witnesses to the occurrence. P.W.4 is the person, who came to know about the incident. P.W.5 is the Village Secretary, who claimed that he was present at the time of inquest over the dead body of the deceased. P.W.6 is the Doctor, who conducted autopsy over the dead body of deceased. P.W.7 is the mediator, who was cited by the prosecution with regard to the arrest of the accused under the Mahazar and for the recovery of so-called weapon. P.W.8 is the Sub-Inspector of Police, who registered the report 8 of P.W.1 as crime and assisted the Inspector of Police in the investigation. P.W.9 is the investigating officer.
12) The substance of the deposition of P.W.1 is that on 02.10.2005 at 11-00 P.M. L.Ws.2 and 3 (P.Ws.2 and 3) came to his house, woke him up and told that the accused caused stab injuries against his daughter and she fell down and they do not know whether she died or not. Then, he, Sudhakar and L.Ws.2 and 3 went back to the house of accused where he caused injuries against his daughter. He saw his daughter lying in a pool of blood there. He noticed only one stab injury on her left shoulder near neck. On observation, they found that she died by then. Then, he went to the house of the accused and he was not there. He absconded from the spot. Nine days prior to the incident, accused and his daughter shifted the residence to the place where the incident took place. He advised the accused to take a separate house, as he was consuming liquor and he was not looking after his wife and child. From the scene of offence, he returned to his house, wakeup his neighbor Chintham Madhu and informed him about the incident and asked him to prepare the complaint. He subscribed his signature in it and submitted 9 to Allur Police Station. Ex.P.1 is the report. It contains his signature.
13) The evidence of P.W.2 in substance is that he know the accused and the deceased. P.W.1 is the son of his senior paternal uncle. L.W.3 is his son. At about 11-00 P.M., they heard the cries of the accused and the deceased from their house. They kept quite with impression that they used to quarrel usually. As the quarrel was not subsided and as the cries were in high pitch, then he, his wife and son rushed to the spot. When they reached the scene, accused was outside of the house and the deceased was inside. Accused went inside and caused stab injury on the left shoulder of the deceased with a "Surakathi", which will be used to cut hen and chicken, etc. The son of him (P.W.3) tried to catch hold of the accused and he thrown him away and went away. In that scuffle, his son also sustained an injury to his hand. They kept his wife at the scene of offence. He and his son rushed to the house of P.W.1 and informed the incident. They searched for the accused, but they could not trace him.
14) P.W.3 is the son of P.W.2. He deposed that the offence took place on 02.10.2005 at 11-00 P.M. Their house is 10 situated by the side of the house of accused and deceased. Accused and the deceased came to there just nine days prior to the incident. After having dinner on the day, they slept in front of their house. They heard the cries of the accused and the deceased. Then, he and his wife rushed to the house of the accused. When the cries were increasing, he went to bring his father. Then he and his father also came there. Accused stabbed the deceased with a knife in their presence. She sustained bleeding injury and fell down. He tried to catch hold of the accused. In that process, he sustained injury on his right arm. Accused got released from his hands and went away. Then they intimated the incident to P.W.1. All of them came back to the scene, by then the deceased died. M.O.1 is the knife with which the accused stabbed the deceased.
15) The testimony of P.W.4 is hearsay in nature and on that day during night P.Ws.1 to 3 came to his house and intimated that the accused caused the death of the daughter of P.W.1 and went away. Then he went to the house of accused and found the deceased lying in a pool of blood. Then he and P.W.1 went to the Allur Police Station. He (P.W.4) prepared complaint as stated by P.W.1 and handed over to police. Ex.P.1 11 is the complaint which was prepared by him and it was submitted to Allur Police Station.
16) P.W.5, the Panchayat Secretary, spoken about the factum of the inquest and the presence of police noting down the injuries in the presence of other Panchayathdars.
17) P.W.6 spoken about the conducting of postmortem examination and his opinion that cause of death is severe blood loss and injury to left lung. He further spoken that he also examined P.W.3 on that day and issued wound certificate. He found an abrasion on the right forearm red in colour, which is simple in nature and M.O.1 can cause the above said injury.
18) P.W.7 spoken to the fact that in his presence, police arrested the accused on 04.10.2005 under the cover of Ex.P.5 arrest Mahazar and further accused lead them to Singapet S.T. Colony, where the police in pursuance of the confession, recovered M.O.1 and Ex.P.6 is the seizure mahazarnama.
19) P.W.8 testified that on 03.10.2005 at 3-00 A.M. P.W.1 along with three others came to the police station and presented Ex.P.1. P.W.9 spoken about the investigation conducted by him.
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20) Learned counsel appearing for the appellant would contend that the evidence of P.W.1 is hearsay in nature. According to Ex.P.1, P.Ws.2 and 3 told to P.W.1 that accused told to them that he stabbed the deceased. So, if Ex.P.1 is taken into consideration, it is doubtful whether P.Ws.2 and 3 actually witnessed the occurrence. The Court below having found the appellant not guilty of charge under Section 302 of I.P.C. and having found that evidence of P.Ws.2 and 3 is quite contrary ought to have extended benefit of doubt to the accused. Though the house of the accused and the deceased was surrounded by several residential houses, prosecution did not examine any other independent witnesses. The Court below relying upon the inquest report and the charge sheet allegations fastened the criminal liability against the accused. The learned trial Judge did not look into admissibility of the inquest report. The prosecution did not examine Chekili Seenaiah, who could have the best witness in whose presence the incident took place. He would further contend that if P.Ws.2 and 3 were hearsay witnesses as learnt about the incident as confessed by the accused, how they can give evidence as if they are the direct witnesses to the occurrence. Their evidence is contra to Ex.P.1. The Principal 13 Sessions Judge, Nellore Division without any basis convicted the accused, as such, the appeal is liable to be allowed.
21) Sri Y. Jagadeeswara Rao, learned counsel, representing the learned Public Prosecutor, would contend that P.W.1 admittedly presented Ex.P.1, who got it drafted with the help of P.W.4 and his evidence was not impeached as to how he came to know about the incident and P.W.1's evidence is consistent with the evidence of P.Ws.2 and 3 and it is not a case where the accused agitated before P.Ws.2 and 3 that they did not witness the occurrence and that they were planted witnesses, etc. The learned Principal Sessions Judge on consideration of the evidence on record made findings that the incident was happened on sudden and grave provocation on the spur of movement and the deceased and her paramour were found in compromising position and rightly awarded conviction under Section 304 II of I.P.C. and there are no merits in the appeal, as such, appeal is fit to be dismissed.
22) Firstly, I would like to deal with as to whether death of the deceased was homicidal or not? According to the evidence of P.Ws.2 and 3, they found the deceased in a pool of blood and accused caused injuries to her. Whether the accused caused the 14 death of the deceased would be hereinafter discussed. Regarding the nature of death of the deceased, there is evidence of P.W.5, the inquest panchayatdar, to the effect that he was present at the time of inquest over the dead body of the deceased in S.T. Colony of Singapet Village along with other panchayatdars and police noted down the injuries on the deceased and also the inquest panchayatdars arrived at a conclusion about the cause of death and Ex.P.2 is the inquest report. Accused agitated before P.W.5 that he was not present at the time of inquest, etc. The above said cross examination done on behalf of the accused before P.W.5 deserves no merits.
23) There is evidence of P.W.6, the medical officer, who conducted autopsy over the dead body of the deceased. He deposed that on 03.10.2005 at 4-15 P.M. he conducted postmortem examination on the dead body of the deceased by name Salapakshi Uma at request of police and found (1) A perforated injury of about 10 cm. x 3 Cm in diameter below the left collar bone near to the shoulder passed obliquely inwards and downwards into the upper lobe of the left lung/perforating the injury in upper lobe of the left lung 3 cm. in length and 1 ½ cm. in width in the lung. They could have been caused with 15 sharp edged weapon. The injury is ante-mortem in nature. Ex.P.3 is the postmortem report. During the course of cross examination on behalf of the accused, he did not dispute the injury received by the deceased and the cause of death.
24) According to P.W.6, the cause of death is severe blood loss and injury to left lung. M.O.1 can cause the external injury and it is sufficient to cause the death of a person in ordinary course of nature. The above evidence of P.W.6 is not at all challenged at the time of cross examination of P.W.6. The entire cross examination of P.W.6 was confined regarding the injuries received by P.W.3 when the accused was trying to escape, etc. So, having considered the evidence of P.Ws.2 and 3 as to the physical condition of the deceased in a pool of blood and the evidence of P.W.5-the inquest panchayatdar, Ex.P.2-the inquest report and the evidence of P.W.6-the medical officer, coupled with Ex.P.3, I am of the considered view that the death of the deceased was nothing but homicidal. Further there is no dispute about the place of death of the deceased in her hut.
25) Now, this Court would like to deal with as to whether the prosecution was able to establish before the Court below that accused caused the death of deceased? Before going to 16 appreciate the same, this Court would like to point out here that accused was found guilty under Section 304 II of I.P.C., culpable homicide not amounting to murder with a finding that the incident in question was happened in a spur of movement when the accused found the deceased and her paramour in a compromising position. Prosecution did not challenge the finding of the learned Principal Sessions Judge, Nellore Division, in this regard. So, the scope of the appeal is very limited as to whether the accused committed the offence of culpable homicide not amounting to murder?
26) The prosecution is relying upon the evidence of P.W.1- the maker of Ex.P.1, P.Ws.2 and 3-the so-called direct witnesses to the occurrence, P.W.4, who was the scribe of Ex.P.1, to prove the offence in question.
27) Now, it is appropriate to look into the answers spoken by P.Ws.1 to 3 at the time of cross examination on material aspects.
28) As evident from the cross examination of P.W.1, originally, the deceased was given in marriage to one Subba Rayudu of Proddutoor and later, deceased left her first husband and came out to the house. She did not take divorce with her 17 first husband. Accused became his son-in-law after marriage of his daughter with him. The scene of offence is situated in S.T. Colony. He does not know about the educational qualification of Chintham Madhu, who was the maker of Ex.P.1 and who was not a regular document writer. He denied a suggestion that his daughter was having illegal intimacy with some other persons and that those unknown persons caused such injuries against his daughter and those persons are responsible for the death of his daughter and he filed false case.
29) According to the cross examination of P.W.2, they did not try to prevent the accused to come inside and cause stab injuries against his wife. He stated before police that when his son tried to catch hold of the accused, he went away and in that scuffle, his son sustained injury. He denied that he did not state so. He denied that they did not go to the scene of offence. He denied that somebody caused stab injury against the deceased as she was having illegal intimacy with so many people, but the accused was implicated falsely.
30) During the course of cross examination of P.W.3, he deposed that he did not tell before police as in Ex.D.1. He denied that accused did not cause stab injury against the 18 deceased in his presence and he did not catch hold of the accused and that he did not sustain any bleeding injury. He denied that he received injury during the course of work, but by taking advantage of the injury he is throwing blame against the accused. Accused stabbed the deceased inside the house. Accused was staying outside the doorway of his house and the deceased was inside the house. Accused entered into the house and caused stab injury against the deceased. As he went to bring his father, the question of his making any effort to catch hold of the accused to prevent the accused from stabbing did not arise. He further deposed that immediately after stabbing when he tried to catch hold of the accused, he caused injury to his hand and the accused skulked away from the place. He denied that he identified M.O.1 as per instructions of police. He denied that somebody caused stab injuries to the deceased and they came there subsequently and foisted false case.
31) Turning to the evidence of P.W.4, who was scribe of Ex.P.1, he denied that P.Ws.1 to 3 did not come before him and they did not intimate anything to him that accused caused the death of the deceased. He drafted Ex.P.1 in Allur Police Station. He denied that he is deposing false.
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32) The admitted facts as evident from the case of the prosecution and the trends in the cross examination of P.W.1 is that there is no dispute whatsoever that the deceased was the second wife of the accused and that they were residing in a hut situated in S.T. Colony. Further there is no dispute during the cross examination of P.Ws.1 to 4 that the deceased and the accused were residing together in the hut in S.T. Colony. The presence of the accused during the night of 02.10.2005 is not in dispute. So, in other words, this Court would like to make it clear that at the time of the death of the deceased, accused was physically present in the house. It was not at all challenged before the prosecution witnesses. It was not the defence of the accused before the Court below that he was elsewhere at the time of offence in question. The suggestions that are put forth before P.W.1 means, that as the deceased had illicit intimacy with several other persons, they might have killed the deceased. The above defence set forth by the accused is quietly improbable. When the deceased and the accused were residing together and when the presence of the accused in the hut of them was not in dispute, it is for the accused to throw light as to how he was there when unknown persons allegedly hacked the 20 deceased. It is not his defence that whether he made any attempt to save the deceased from the hands of unknown persons. So, the very defence of the accused before P.Ws.1 to 3 that some unknown persons, who had illicit intimacy with the deceased, might have killed, is nothing but baseless and is improbable.
33) The contention of the learned counsel for the appellant that the prosecution did not examine the paramour of the deceased, as such, it is fatal to the case of the prosecution, cannot be accepted for the reason that P.Ws.2 and 3 were said to be direct witnesses to the occurrence. On the ground that the so-called paramour of the deceased was not examined, the evidence of P.Ws.2 and 3 cannot be disbelieved.
34) The crucial defence of the accused with reference to Ex.P.1 and the evidence of P.Ws.1 to 3 is that according to Ex.P.1, accused told to P.Ws.2 and 3 that he hacked the deceased, as such, P.Ws.2 and 3 were not the direct witnesses to the occurrence. So, the contention of the appellant is that P.Ws.2 and 3 are planted as direct witnesses to the occurrence.
35) It is to be noticed that law is well settled as to how Ex.P.1, the report, lodged by P.W.1 can be used in support of 21 the case of the prosecution or to contradict the evidence of maker of it. Further the law is also well settled as to how to make a contradiction under Section 162 of Cr.P.C., when a particular witness deviated from the statement recorded by police during investigation and introduced wholly new facts which came in conflict with the earlier statement.
36) The Hon'ble Supreme Court in Criminal Appeal No.67 of 1958 in Tahsildar Singh and others vs. State of Uttar Pradesh1 elaborately dealt with the issue. So, having regard to the above, now this Court has to see as to whether the evidence of P.Ws.1 to 3 is convincing and whether the contention of the appellant that P.Ws.2 and 3 were not the direct witnesses is tenable. It is to be noticed that when the case of the appellant is such that according to Ex.P.1, accused allegedly intimated to P.Ws.2 and 3 that he stabbed the deceased, there is no cross examination of P.W.1 inviting his attention to the contents of Ex.P.1, which was his previous report in writing.
37) It is to be noticed that on a look at Ex.P.1 means that P.W.1 did not scribe it. On the other hand, he got drafted it somewhere and thereupon, he signed it. Even according to 1 AIR 1959 SC 1012 22 P.W.1 during cross examination, the scribe of Ex.P.1 was not a regular document writer. The evidence of P.W.1 is that he informed to P.W.4 about the incident and asked him to prepare a complaint. He scribed his signature in it and submitted the same to the police, which is Ex.P.1. So, P.W.1 deposed as if P.Ws.2 and 3 intimated to him that the accused caused stab injuries to deceased. It is not the evidence of P.W.1 that they came to know about the incident on the so-called statement made by the accused that he stabbed the deceased. So, when it is the defence of the appellant, the evidence of P.W.1 contradicts version stated in Ex.P.1, the bounden duty of the accused is to invite the attention of P.W.1 to the contents of Ex.P.1 for the purpose of contradiction. So, virtually, the evidence of P.W.1 was not at all challenged that he gave evidence as if he came to know about the occurrence through P.Ws.2 and 3 giving a goby to the narration in Ex.P.1. In the absence of a challenge to the evidence of P.W.1 like so, the contention of the appellant cannot be countenanced.
38) It is no doubt that P.Ws.2 and 3 deposed as if they were the direct witnesses to the occurrence. It is not the defence of the accused before P.Ws.2 and 3 that they gave a 23 goby to the version mentioned in their statements and introduced new facts, as if they directly witnessed the occurrence. Even it is not the defence of the accused before the Court below or even it is not the argument that P.Ws.2 and 3 improved the evidence than the version given before police during the course of investigation. So, the evidence of P.Ws.2 and 3 as per the evidence on record cannot be taken as an improvement before this Court. So, the solitary argument as regards the improvements and contradictions is that according to Ex.P.1, P.Ws.2 and 3 were not the direct witnesses to the occurrence. As pointed out, the said contention is not at all tenable in my considered view.
39) P.W.4 is the scribe of Ex.P.1 and even in his cross examination the contents of Ex.P.1 were not referred to P.W.4 to ascertain as to whether P.W.1 told to him that accused confessed before P.Ws.2 and 3 that he stabbed the deceased. In the light of the above, this Court is of the considered view that basing on the defence of the accused it cannot be held that P.Ws.2 and 3 did not witness the occurrence. On the other hand, they stood the probing cross examination. As seen from Ex.D.1, which is marked during the cross examination of P.W.3, 24 which is also proved by virtue of the answers from P.W.9, the investigating officer, it is of no use to the defence of the accused in my considered view. Ex.D.1 consists two parts. One is that during 02.10.2005 P.W.3 as early meal slept by the side of cattle shed. Another part is that when P.W.3 was present, accused went into the house and stabbed the deceased. Virtually, that is not contradicting the evidence of P.W.3 in any manner. So, Ex.D.1 is of no use to the defence of the accused.
40) As seen from the evidence of P.W.3, he received an injury in the scuffle when he tried to catch hold of the accused. It is to be noticed that firstly P.W.3 deposed that as he went to bring his father, the question of his making any effort to catch hold of the accused to prevent the accused from stabbing does not arise. Immediately, after stabbing when he tried to catch hold of the accused, he caused injury to his hand and skulked away from that place. So, the first answer as referred to above is relating to the effort, if any, made by him to prevent the commission of offence. The second is relating to the effort made by him to catch hold of the accused. It is not going to affect the case of the prosecution in anywhere. P.Ws.2 and 3 are no other than the father and son and their houses were 25 adjacent to the house of the deceased. They were the residents of the colony where the deceased and the accused were staying together. Under the circumstances, there remains nothing in the cross examination of P.Ws.2 and 3 to disbelieve their testimony.
41) The fact that P.W.3 received injury when he was trying to catch hold of the accused in the scuffle cogently established his presence at the time of the offence. A lot of cross examination was done before P.W.6, the medical officer, to say that the injury of abrasion received by P.W.3 cannot be possible by a weapon like M.O.1 and that P.W.3 received the injury in the course of his work. So, the abrasion received by P.W.3 is not in dispute. It was received during scuffle with the accused or during course of his work has to be considered here. In cross examination, P.W.6 deposed that abrasions can be caused by fall on hard surface or with hard objects or by dragging on hard surface. Witness says that there is also possibility of getting abrasions with sharp edged weapon. He denied that there is no such possibility. He denied that the injury mentioned in Ex.P.4 is not possible with a weapon like M.O.1. He deposed that it is true that if any injury is possible with a 26 weapon like M.O.1, there is no scope to get a narrow size injury. Basing on this, the contention of the appellant is that P.W.3 received injuries elsewhere. It is very difficult to accept the said contention. It is not the evidence of P.W.3 that while trying to escape, the accused hacked or stabbed P.W.3 so as to cause injuries to him. His evidence is very clear that when he tried to catch hold of the accused, there was a scuffle and in that scuffle he sustained an injury with a knife on his right arm. So, there was no deliberate use of weapon by accused against P.W.3 and due to scuffle only, P.W.3 received injury. So, it means, there was a possibility that P.W.3 might have contacted with the buttend of M.O.1. There is no hard and past rule that when there was a scuffle between two persons and one person was armed with a weapon like M.O.1, the sharp edged side edge should only contact with a person like P.W.3. So, when the evidence is not clear that the accused used M.O.1 against P.W.3 to cause injuries, there is a possibility that P.W.3 might have received injuries by coming into contact with the buttend part of M.O.1. Hence, the very fact that P.W.3 received injuries in the scuffle goes to establish his presence categorically at the time of offence in question.
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42) Turning to the contention of the appellant that independent witnesses are not examined, it is not at all elicited from the mouth of P.Ws.1 to 3 that any inmates of the neighbouring houses gathered at the scene of offence. In the absence of such cross examination eliciting the names of the neighbourers, the contention of the appellant that independent witnesses are not examined, deserves no merits.
43) P.W.9, the investigating officer, during cross examination deposed that it is true as per F.I.R. and inquest report, P.Ws.2 and 3 are not the direct eye witnesses to the occurrence. It is to be noticed that when the investigating officer recorded the statements of P.Ws.2 and 3 during investigation and described them in the charge sheet as witnessed the occurrence he is not supposed to say that as per F.I.R., they are not the direct witnesses to the occurrence. Apart from this, as this Court already pointed out the attention of P.W.1 was not drawn to the contents of Ex.P.1 and it is not the defence of the accused that P.Ws.2 and 3 improved the evidence. In the light of the detailed reasons furnished supra, the answers spoken by P.W.9 during cross examination, deserves no merits.
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44) Apart from this, there is evidence adduced by the prosecution that the investigating officer in the presence of P.W.7, the mahazar witness, arrested the accused and accused confessed about the place where he hidden the M.O.1 and ultimately in pursuance of the confession made by the accused, M.O.1 is recovered. It is quietly proved from the evidence of P.W.7, the mediator and P.W.9, the investigating officer. Nothing is elicited during the course of cross examination of P.W.7, the mediator and P.W.9, the investigating officer insofar as the recovery of M.O.1 is concerned. The prosecution also obtained opinion that the blood found on M.O.1 is of human blood. So, the confession leading to recovery of M.O.1 is another circumstance to strengthen the case of the prosecution before the Court below. Leave apart the recovery of M.O.1 in pursuance of the confession made by the accused, there was cogent evidence before the Court below in the form of evidence of P.Ws.2 and 3, who witnessed the occurrence.
45) As seen from the judgment of the Court below, at one hand the learned Principal Sessions Judge, Nellore Division, relied upon the evidence of P.Ws.2 and 3 as direct witnesses. At another hand, the learned Principal Sessions Judge, Nellore 29 Division, looked into the contention of the accused that P.Ws.2 and 3 were not the witnesses to the occurrence. The learned Principal Sessions Judge, Nellore Division, simply looked Ex.P.1 contents and made non-emphatic observation that according to Ex.P.1, P.Ws.2 and 3 were not the direct witnesses to the occurrence. This Court is dealing with an appeal against the conviction. It is well settled that in an appeal against conviction, it is the duty of the appellate Court to arrive at an independent conclusion by looking into the entire evidence available on record and by appreciating the same. In my considered view, though the learned Principal Sessions Judge, Nellore Division, was not able to furnish proper reasons to negative the contention of the accused that P.Ws.2 and 3 were not the direct witnesses to the occurrence, but in the light of the appreciation of the evidence by this Court looking into the cross examination part of P.Ws.1 to 3, it is crystal clear that it cannot be held by any stretch of imagination that P.Ws.2 and 3 were not the direct witnesses to the occurrence.
46) Admittedly, even according to the charge sheet and the allegations of the prosecution, the incident in question was happened in a spur of movement when the accused found the 30 deceased in a compromising position with her paramour. Admittedly, it is a case where the investigating officer appears to have not examined the so-called paramour. But, in my considered view, in view of evidence of P.Ws.2 and 3, non- examination of so-called paramour of the deceased is not fatal to the case of the prosecution. There is no appeal against judgment exonerating the accused under Section 302 of I.P.C. by the prosecution before the Court. Having regard to the above and looking into the judgment of the Court below, this Court is of the considered view that the finding given by the learned Principal Sessions Judge, Nellore Division that the offence committed by the accused would fall under the category of culpable homicide not amounting to murder is convincing.
47) In view of the above, this Court is of the considered view that the evidence adduced by the prosecution before the Court below categorically proves the offence under Section 304II of I.P.C. beyond reasonable doubt. It is culpable homicide not amounting to murder and the Court below rightly convicted and sentenced the accused for the above said offence. Hence, I see no merits, as such, appeal is liable to be dismissed.
48) In the result, this Criminal Appeal is dismissed. 31
49) The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court to the trial Court and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the appellant (accused) in S.C.No.116 of 2008, dated 08.10.2010 and to report compliance to this Court.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt. 08.12.2022.
PGR 32 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU CRL. APPEAL NO.1538 OF 2010 Date: 08.12.2022 PGR