Andhra Pradesh High Court - Amravati
Mala Atcha Rao, Guntur Dt., vs State Of Ap., Rep Pp., on 1 December, 2022
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
CRIMINAL APPEAL No.1047 of 2015
JUDGMENT:- (Per Hon'ble Sri Justice C.Praveen Kumar) The present Criminal Appeal came to be filed under Section 374(2) of the Code of Criminal Procedure, 1973 by the sole accused challenging the judgment, dated 10.11.2014, in Sessions Case No.95 of 2014 on the file of the learned X Additional District and Sessions Judge, Gurazala, wherein the accused was tried for the offence punishable under Section 302 I.P.C.
2. Vide judgment, dated 10.11.2014, the learned Sessions Judge convicted the accused for the offence punishable under Section 302 I.P.C. and accordingly, sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.100/-, in default of payment of fine, to undergo simple imprisonment for a period of one month.
3. The substance of the charge levelled against the accused is that on 28.11.2013, near the field of one Balunaik, which is 2 kms., away from Gangireddipalle Village of Velduthy Mandal, the accused suddenly pounced upon his wife - Malla China 2 Seshamma (hereinafter, referred to as "the deceased") and hacked her with an axe on her right side temple region. It is said that though the deceased prayed the accused with folded hands but the accused hacked on her hands, resulting in cut injuries on her finger. The accused hacked on the throat of the deceased two or three times, as a result of which, she succumbed to fatal injuries and died on the spot.
4. The case of the prosecution, in brief, is as under:
The deceased is the wife of the accused. P.W.1 is the father, P.W.2 is the sister, P.W.3 is the brother and P.W.4 is the minor daughter of the deceased. It is said that the deceased and accused were blessed with two sons and two daughters. The accused was addicted to bad vices and was living mainly on the earnings of the deceased. It is said that about five months prior to the death of the deceased, she came to the house of P.W.1 and complained about harassment by the accused for the sake of money. The deceased was in his house for one month during which time, the accused came there thrice and requested P.W.1 to send his wife along with him. Having regard to the assurance given, P.W.1 allowed his daughter to join the accused and both of them set up their family at Gangireddipalle Village. It is said that on the date of incident, at about 10:00 or 3 11:00 A.M., the deceased sent P.W.4 to collect coolie amount from the ryots. P.W.4 returned back stating that the coolie amount would be given in the evening. On hearing the same, the accused, who was present in the house, beat the deceased. Later, P.W.4, the accused and the deceased started going to the fields for coolie work and when they reached near the field of one Balunaik, the accused hacked the deceased with an axe on her head and shoulder. In spite of the deceased requesting with folded hands not to kill her, the accused is said to have hacked the deceased on her hands as well. On receipt of the said injuries, the deceased fell down and died on the spot. P.W.4 ran from that place to the field of P.W.5 and informed him about the incident. She further requested P.W.5 to come to the scene of offence. Immediately, P.W.5 went there and found the dead body of the deceased. Information about the incident was furnished to P.W.1, pursuant to which, he along with his elder daughter - P.W.2 and son - P.W.3 rushed to the scene of offence and found the dead body of the deceased. He enquired P.W.4 as to how and under what circumstances the incident took place. She narrated the incident in detail to P.W.1. On receipt of said information, he proceeded to police station and lodged a report with P.W.13 - A.S.I. of Police basing on which, a case in Crime No.147 of 2013 for the offence punishable under Section 4 302 I.P.C. came to be registered. Ex.P-13 is the First Information Report. Further investigation in this case was taken by P.W.14 - Inspector of Police, Macherla Rural, who on receipt of copy of F.I.R., rushed to Gangireddipalle Village and in the presence of mediators, observed the scene of offence and seized M.Os.1 and 2. He also prepared a rough sketch, which is marked as Ex.P-14. Thereafter, he held inquest over the dead body in the presence of relatives of the deceased between 1:30 and 3:30 P.M. Ex.P-18 is the Inquest Report. During inquest, he examined P.Ws.1 to 8 and others and recorded their statements. After completing the inquest proceedings, the body was sent to post mortem examination.
P.W.12 is the Civil Assistant Surgeon, Government Hospital, Macherla, who conducted autopsy over the dead body and issued Ex.P-12 - Post Mortem Certificate. The doctor found 10 external injuries on the body of the deceased and according to him, the cause of death was due to multiple injuries with hemorrhage and shock. He further stated that all the injuries in the body are possible with an axe.
P.W.14, who continued with the investigation, arrested the accused on 02.12.2013, in the presence of P.W.11 and another. On interrogation, he confessed about the commission 5 of the offence. Thereafter, the accused lead them to the bushes near Yerraguvva hills from where, the accused produced M.Os.3 and 4 and handed over the same to them. He sent the material objects to R.F.S.L. After receipt of R.F.S.L. Report and other relevant documents, a charge sheet came to be filed, which was taken on file as P.R.C.No.5 of 2014 on the file of the learned Junior Civil Judge, Macherla.
5. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to him. As the offence is triable by a Court of Sessions, the same was committed to the Court of Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned X Additional District and Sessions Judge, Gurazala for trial and disposal in accordance with law.
6. Basing on the material available on record, charge, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, he pleaded not guilty and claimed to be tried.
7. To substantiate its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P-1 to P-15 and M.Os.1 to 4. After the closure of prosecution evidence, the accused was examined 6 under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses to which he denied. No oral evidence was adduced on his behalf. However, Exs.D-1 to D-3 were got marked on his behalf.
8. The learned Sessions Judge relied upon the evidence of P.Ws.1 to 4 and convicted the accused for the offence punishable under Section 302 I.P.C. and sentenced him, as stated supra. Challenging the same, the present appeal came to be filed by the accused.
9. Dr. Challa Srinivasa Reddy, learned counsel for the appellant/accused, would contend that the entire case rests on solitary testimony of P.W.4, which cannot be relied upon, having regard to the variations in the time of the incident. In other words, his argument appears to be that in the evidence in chief, the witness speaks about the incident happening between 10:00 A.M. and 11:00 A.M. while the cross examination discloses the time of incident as 7:00 A.M. The evidence of P.W.1 discloses that he received information at about 9:15 A.M. or 9:30 A.M. Having regard to the discrepancy in the time, learned counsel would contend that the incident did not occur in the manner as suggested by the prosecution and that a false case has been 7 foisted. Apart from that, learned counsel submits that since the accused was treating the deceased with love and affection and used to beat her only under the influence of alcohol, pleads to reduce the sentence by scaling down the offence from Section 302 I.P.C. to Section 304 Part-I I.P.C.
10. On the other hand, Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor, opposed the same contending that there are no reasons to disbelieve the evidence of P.Ws.4 and 5. Apart from that, learned counsel would contend that there is sufficient motive for the accused to cause the death of the deceased, as he harassed her on number of occasions and the deceased left the company of the accused to her parents' house because of his harassment. Insofar as scaling down of the conviction is concerned, he would contend that if really the accused had so much love, his behaviour would have been different. Moreover, there is no evidence on record to show that he was under the influence of alcohol at the time of incident. In any event, he would plead that causing the death of the deceased under the influence of alcohol does not entitle to any protection under the provisions of the Indian Penal Code. Hence, pleads that the conviction and sentence imposed by the trial Court requires no interference.
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11. The point that arises for consideration is:-
"Whether the prosecution has proved the guilt of the accused for the offence punishable under Section 302 I.P.C. beyond all reasonable doubt?"
12. POINT:-
It is no doubt true that the entire case rests on the solitary testimony of P.W.4, who is none other than the elder daughter of the accused and the deceased. It is also not in dispute and in fact, it has been elicited in the cross examination of P.W.4 that after the incident and at the time of giving evidence, she was living with her father, who is the accused herein. Keeping in view these circumstances in the background, it is now to be seen whether the evidence of P.W.4 can be relied upon.
13. It is well established principle of law that the evidence of a solitary witness can also be relied upon if it is wholly reliable. In Kunju @ Balachandran vs State Of Tamil Nadu1, the Apex Court, at para No.9, held as under:-
"9. Vadivelu Thevar case (AIR 1957 SC 614) supra was referred to with approval in the case of Jagdish Prasad v. State of M.P. (AIR 1994 SC 1251). This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole 1 (2003) 11 SCC 367 9 testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-
honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
14. Keeping in view the ratio laid down in the above judgment, it is to be seen whether P.W.4 is speaking the truth. Coming to the disputes between the accused and the deceased, the evidence of P.W.1 would show that sometime prior to the incident, the deceased came to his house and complained about the harassment in the hands of the accused. She was in the house of P.W.1 for one month and while she was with P.W.1, the accused came thrice and requested to send her along with him. In view of the persuasion, P.W.1 sent his daughter along with the accused and they set up their family at Gangireddipalle Village.
15. The evidence of P.W.4 shows that on the date of incident, the deceased sent her to collect coolie amount from the ryots and she went and returned back stating that the coolie amount would be paid in the evening. The accused, who was present 10 there, beat the deceased. Later on, all of them proceeded to the fields of P.W.5. This evidence of P.W.4 gets corroboration from the evidence of P.W.2, who is the elder daughter of P.W.1 and sister of the deceased. Though both these witnesses were cross examined at length, nothing incriminating was elicited to discredit their version with regard to harassment and beating.
16. Apart from the evidence of P.Ws.1 and 2, we have the evidence of P.W.3, who is the brother of the deceased. He, in his evidence, speaks about the accused beating his sister and not attending to any work. It is his evidence that the accused was depending on the money earned by the deceased for his vices. He also speaks about the deceased coming over to the house of P.W.1, unable to bear the harassment in the hands of the accused. Therefore, not only the evidence of P.Ws.1 and 2, but also the evidence of P.Ws.3 and 4 would establish harassment to the deceased in the hands of the accused.
17. Coming to the incident, the entire case rests on the evidence of P.W.4. She, in her evidence, deposed that on the fateful day, herself and her parents were going to the fields for cookie work and when they reached near the fields of one Balunaik, the accused hacked the deceased with an axe on her head and shoulder. The evidence of P.W.4 also shows that the 11 deceased pleaded for mercy with folded hands but in vain. On receipt of injuries, the deceased fell down and died. Due to fear, P.W.4 ran way from the scene and went to the fields of P.W.5 and informed about the incident. Immediately, P.W.5 came to the scene of offence and noticed the dead body. He found the accused absconding from the scene. Information about the incident was given to P.W.1, who also came to the house of the accused. He enquired P.W.4 as to how the incident happened, to which, she disclosed in detail as to what happened prior to the incident and also the incident in question.
18. To test the veracity of the evidence of P.W.4, it would be appropriate to refer to Ex.P-1 - Report, given by P.W.1 basing on the information furnished by PW.4. This report was given in the morning on 28.11.2013 and there was no delay in lodging the report. In the said report, P.W.1 categorically speaks about the information furnished by P.W.4 with regard to the manner in which the deceased was hacked by the accused. The F.I.R. also refers to P.W.4 furnishing information to P.W.5 and the said person coming over to the scene and seeing the dead body, who in turn, informing the same to P.W.1. Therefore, the argument that P.W.5 was introduced subsequently only to corroborate the version of P.W.4, cannot be accepted. There is no reason for 12 P.W.5 to speak falsehood. In fact, his evidence only discloses that on the fateful day, while he was in his field, P.W.4 came and informed him that her father killed her mother and requested him to come to the scene. Then, he immediately went to the scene and found the dead body. Therefore, not only the evidence of P.W.4 but the evidence of P.W.5 also shows the involvement of the accused in the commission of the offence.
19. At this stage, learned counsel for the appellant would contend that having regard to the variations in time given by each other witness, the entire prosecution case is to be thrown out.
20. We are not in agreement with the same. It may be true that there are some minor variations in the evidence of P.W.4 and P.W.5 with regard to time of the incident. The evidence in chief of P.W.4 shows that the incident took place in between 10:00 and 11:00 A.M., but in the cross examination, it was elicited as if it happened at 7:00 A.M., but there is no suggestion to P.W.4 to the effect that she was not present at the time of incident. With regard to the timing, P.W.5, in his cross examination, admitted as under:-
"On the date of incident nobody came to my field except the accused, deceased and P.W.4. I called 10 persons to attend 13 coolie work in my field. None came to my field by that time. I went to my fields 6 A.M., early hours on that day. I found the dead body of deceased at the spot by 8 or 9 A.M., The spot is surrounded by the several fields. By the time I was present in my field and several people are working in the surround fields. Kotamma and P.W.4 and Jyothi were physically present at the dead body. Police came to the spot around 10 A.M., P.Ws.1 to 3 came to the spot around 12 or 1 P.M. I was remain at the spot was about half an hour and thereafter I went to my house along with my bullocks. I was examined by the police around 9.30 A.M., on that day......"
This variation of time, in our view, may not go to the root of the matter, for the reason that no enmity or animosity was suggested to P.W.4 or P.W.5 to speak falsehood against the accused. Moreover, P.W.4 is a young girl aged about 14 years, at the time of incident, while P.W.5 is a village rustic, doing agricultural work, and may not be in a position to tell accurate time. As stated by us earlier, cross examination of P.W.4 was mainly to the effect that she was tutored by P.Ws.1 to 3 and that the accused has not killed the deceased as stated by her. But in the cross examination by P.W.4, it was elicited that she was living along with the father of the accused after the incident. That being so, question of tutoring P.W.4 by P.Ws.1 to 3 would not arise.
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21. From the evidence adduced by the prosecution, it can be said that the prosecution has proved its case beyond all reasonable doubt more so, through the evidence of P.W.4, who can be treated as a reliable evidence, coupled with corroboration from the evidence of P.W.5. Though there are some minor variations with regard to the time of the incident in chief and cross examination of these two witnesses, the fact remains that the report, which was lodged by P.W.1., reached the Magistrate at 11:00 A.M., leaving no scope to manipulate the document. In fact, the learned counsel for the accused, in the cross examination of P.W.4, elicited as if the incident took place at 8:00 A.M. Therefore, question of suppression of any material or implicating the accused or creating a new story to suit the prosecution case, does not arise.
22. For all these reasons, we feel that the prosecution has proved its case beyond all reasonable doubt against the accused for the offence punishable under Section 302 I.P.C., and the judgment of the trial Court is liable to be confirmed.
23. In the result, the Criminal Appeal is dismissed confirming the judgment, dated 10.11.2014, in Sessions Case No.95 of 2014 passed by the learned X Additional District and Sessions Judge, Gurazala.
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Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR ___________________________________ JUSTICE B.V.L.N.CHAKRAVARTHI Date : 01.12.2022 AMD 16 02 THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI CRIMINAL APPEAL No.1047 of 2015 Date : 01.12.2022 AMD