Andhra Pradesh High Court - Amravati
V.Penakalapati Mangamma, Anantapur ... vs State Of Ap., Rep Pp And 2 Othrs., on 22 November, 2019
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Criminal Appeal No.1164 of 2012,
Criminal Appeal No. 69 of 2014 and
Criminal Appeal No.840 of 2013
COMMON JUDGMENT :(per Hon'ble Sri Justice C.Praveen Kumar) Criminal Appeal No.1164 of 2012 is filed by A1 against his conviction in S.C. No.52 of 2012 on the file of the I Additional Sessions Judge, Anantapur; while Criminal Appeal No.69 of 2014 is filed by the informant against the acquittal of A2 and A3; similarly Criminal Appeal No.840 of 2013 is filed by the State against the acquittal of A2 and A3. Since these appeals are filed against the same judgment, they are heard and disposed off by this common order.
2. Originally A1 to A3 were tried on four charges. The first charge was under Section 302 read with Section 34 I.P.C. against all the three accused, while the second, third and fourth charges were against A1 under Sections 450, 307 and 326 I.P.C. By its judgment dated 15th November, 2012, the learned I Additional Sessions Judge, Anantapur, while acquitting A2 and A3, found A1 guilty under Section 302 I.P.C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs.5,000/-, in default to undergo Simple Imprisonment for five months. He further convicted A1 under Section 307 I.P.C. and sentenced him to suffer Rigorous Imprisonment for five years and to pay a fine of Rs.3,000/-, in default to suffer Simple Imprisonment for three months. A1 was also convicted under Sections 326 and 450 I.P.C. and sentenced to undergo Rigorous Imprisonment for three years under each of the said count. All the substantive sentences were directed to run concurrently. 2
3. The facts in issue are as under :
P.W.1 is the wife of the deceased. Accused Nos.1 to 3 were residents of Pedda Kowkuntla Village, while P.W.1 and other prosecution witnesses were residents of Chinna Kowkuntla Village. P.W.2 is the brother of the deceased. All of them belong to Vadde community. It is said that A3 had two wives. The name of the first wife is Sunkamma, while that of second wife is Anjinamma. Both of them are sisters.
Originally, Anjinamma was given in marriage to a person in Seeripikottala Village and out of the wedlock, she was blessed with two daughters and one son. Later, her husband was killed. After his death, she started living in Pedda Kowkuntla with A3. Both of them got married. A1 and A2 are the sons of A3 through Anjinamma.
Sunkamma, who is the first wife of A3, had one son by name Maresh.
4. P.W.1 and the deceased had two daughters and two sons. The deceased was eking out his livelihood by doing agriculture and also running a kirana shop in S.C. colony. Aruna - second daughter of P.W.1 and the deceased, studied up to Intermediate and discontinued her studies. She fell in love with Maresh (son of A3 through Sunkamma). When the said Maresh informed P.W.1 and the deceased about his intention to marry Aruna, the deceased requested A3 to perform the marriage of his son with his daughter. The accused is said to have threatened the deceased stating that their stature is far superior to that of the deceased and that he should not come up with such proposal any more. About two days prior to the death of the deceased, the daughter of P.W.1 and the deceased went to attend car festival, from there she along with Maresh went to Tirupati and got married. P.W.1 came to know about this on telephonic information given by her daughter. 3
5. The deceased, after closing his kirana shop, used to come home at about 10 PM, but on the date of incident he came at 11 PM, took meals and went to sleep. P.W.1 also went to sleep in the Vasara of their house on a floor. At about 3.00 AM or 3.30 AM, P.W.1 is said to have heard some sound and on hearing the same, she got up, turned the lights on and in the light of electric bulb, noticed A1 armed with axe. Stating as to how P.W.1 and the deceased perform the marriage of their daughter with their brother (step brother), A1 hacked the deceased with an axe on his head and other parts of the body indiscriminately. When P.W.1 tried to rescue her husband, A1 is said to have hacked her with an axe on her right hand, mouth and head causing bleeding and cut injuries, leading to loss of five teeth on the upper incisor. On hearing her cries, the neighbors gathered and on seeing them, A1 went out and along with A2 and A3 left the place on a bike. Thinking that the deceased was alive, the neighbours kept the body in front of vasara. P.W.1 is said to have narrated to them as to how the incident took place. Thereafter, P.W.1 was also taken to Government Hospital, Uravakonda in 108 ambulance.
6. On 16.3.2011 at 7.40 AM, while P.W.12 - A.S.I. was in the Police Station, he received intimation under Ex.P6 from Government Hospital, Uravakonda about the admission of the injured P.W.1 in the Hospital. On receipt of the same, he proceeded to the Hospital at 8 AM and noticed P.W.1 with injuries. He recorded her statement under Ex.P1 in the presence of the Doctor. Basing on the same, a case in crime No.27 of 2011 came to be registered under Sections 324, 326, 302 read with Section 34 I.P.C. Ex.P9 is the F.I.R. As the regular Magistrate at Uravakonda was not available, a copy of the F.I.R. was sent to the Magistrate at Guntakal, as he was in-charge of Uravakonda as well, which was received on 16.3.2011 at 4 PM. P.W.13 - C.I. of Police took up further investigation. After receipt of the copy of the F.I.R., he proceeded 4 to the Hospital, examined P.W.1 again and recorded her statement under Section 161 Cr.P.C. From the Hospital, he reached Chinna Kowkuntla Village and visited the scene of offence, which is the house of P.W.1. He found the dead body of the deceased in front of vasara on the floor. In the presence of P.W.8, he conducted inquest over the dead body. Ex.P2 is the inquest report. He also prepared a rough sketch of the scene, which is placed on record as Ex.P10. At the time of inquest, he examined P.Ws.2 to 4 and recorded their statements. He noticed bloodstains in the vasara, which has Kadapa slab flooring. At the scene, he seized M.Os.2 to 6 and also a cell phone, which is now alleged to be that of A1. After completing the inquest at 1.30 PM, he sent the dead body through the Constable to the Government Hospital, Uravakonda for postmortem examination, where P.W.9 conducted autopsy over the dead body on 16.3.2011 at 3 PM and issued Ex.P3 - Postmortem Certificate. According to him, the cause of death would be due to shock and hemorrhage due to multiple chop wounds and that the injuries are possible with an axe. According to him, the death must have occurred 12 to 16 hours prior to postmortem examination.
7. P.W.13, who continued with the investigation, arrested the accused on 28.3.2011, in the presence of P.W.10 and others. On the basis of the confession made by them, axe and the motor bike used in the commission of offence were discovered. Part of the handle of the axe was broken. A1 also brought bloodstained clothes from thorny bushes situated nearby the house. M.O.8 is the T-shirt, M.O.9 is the pant and M.O.7 is the Hero Honda motorcycle, which were seized under Ex.P5. After securing the Forensic Science Lab Report and letter of advice and Analyst Report - Ex.P12, the successor of P.W.13 filed the charge-sheet, which was taken on file as P.R.C. No.10 of 2011 on the file of the Judicial Magistrate of First Class, Uravakonda. On appearance of the accused, 5 copies of the documents as required under Section 207 Cr.P.C. came to be furnished. Since the offence is triable by the Court of Sessions, the same was committed under Section 209 Cr.P.C. On appearance of the accused, charges referred above came to be framed, read over and explained to the accused, to which they pleaded not guilty and claimed to be tried.
8. In support of its case, the prosecution examined P.Ws.1 to 15 and got marked Exs.P1 to P21 and M.Os.1 to 13. After completion of prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied, however, they did not choose to adduce any evidence, except marking Exs.D1 to D5, which are the portions of the 161 statements of P.Ws.2 to 5 and a copy of Accident Register. After considering the evidence of P.W.1, coupled with that of the neighbours P.Ws.2 to 5, who gathered at the scene, the learned Sessions Judge while acquitting A2 and A3, convicted A1. Challenging the same, the above appeals came to be filed.
9. Sri P.Veera Reddy, learned Senior Counsel appearing for the appellant - accused, would contend that though P.W.1 is projected as an injured eyewitness to the incident, there are many number of circumstances to indicate that she was not present at the scene and is not speaking the truth. It is his case that though P.W.1 in her evidence dposed that the incident occurred between 3.00 and 3.30 AM, but the same is falsified by the evidence of the Doctor. Apart from that, he pleads that before she was brought to the Hospital in 108 ambulance, she is said to have disclosed about the incident to the press reporters and also to the Police. That being the position, the subsequent statement of P.W.1, which was made the basis to register the crime, is hit 6 by Section 162 Cr.P.C. In other words, he pleads that when once the First Information Report is doubtful, the entire fabric of the case collapses. Apart from that, he would contend that though the evidence of Investigating Officer discloses that the Doctor was present while he was recording the statement, the evidence of the Doctor is otherwise. According to him, he was not at all present when the police visited the Hospital. He would further contend that when the deceased was attacked while he was lying with his back upwards, it is very strange as to how he could sustain injuries on the front portion of the body. It is not the case of the prosecution that the deceased turned after receiving the first blow. Apart from that, he pleads that the evidence of the postmortem doctor shows that the injuries received by the deceased are possible while he was sitting or in a standing position. Therefore, the version of P.W.1 that she was present in the house and saw the accused attacking the deceased while he was lying appears to be incorrect. Apart from that, the evidence of the panch witnesses show that the height of the vasara where the deceased was lying is only 5 ½ feet, so if axe is raised to give a blow, the roof/thatched portion would come in the way to give the blow. Therefore, the chop wounds which are found in the body of the deceased could not have been caused in the manner narrated by P.W.1. The learned Senior Counsel would further contend that an adverse inference should be drawn against the prosecution in failing to examine L.W.2 - Gangamma who is said to have accompanied P.W.1 to the Hospital in 108 ambulance. If the said Gangamma has accompanied P.W.1 to the Hospital, definitely she should have been present in the Hospital when the Police visited the Hospital for recording the statement. Strangely, the evidence of the Investigating Officer does not indicate her presence in the Hospital. On the other hand, he categorically states that L.W.2 was not present along with P.W.1 in the Hospital. 7
10. Coming to the recovery of the cell phone at the scene of offence, learned Senior Counsel would contend that there is absolutely no evidence on record to show that the cell phone found belongs to A1. Even P.W.1 in her evidence never spoke about the cell phone being belongs to A1. He further pleads that the evidence of P.W.1 indicates that the Police also accompanied her in the vehicle along with Gangamma to the Hospital and the Police came to the village before she boarded 108 ambulance. According to him, the information about the incident was given to the reporters and police even before the F.I.R. was lodged and as such, there is any amount of doubt with regard to the contents in the F.I.R. In other words, his plea is earlier version of P.W.1 is suppressed.
11. On the other hand, the learned Public Prosecutor would contend that the evidence on record establishes not only the involvement of A1, but also that of A2 and A3. He would submit that the discrepancy in the evidence of P.W.11 is explained by the Doctor stating that by mistake he noted the time of treatment given to P.W.1 as 4.10 PM instead of 7.10 PM. Hence, pleads that this discrepancy in the evidence should not go to the root of the matter. He would also submit that P.W.1 is an injured eyewitness and her presence in the house at that point of time cannot be doubted. Things would have been different had the incident happened elsewhere, but, since incident happened inside the house of P.W.1 and the deceased; when she has received injuries in the hands of the accused; and when the medical evidence corroborates the version of P.W.1 with regard to injuries sustained by her, more particularly the loss of teeth, he would submit that there is no reason to disbelieve her version. He further pleads that her discharge against the medical advice on 19.3.2011 cannot be treated as a circumstance against the prosecution. Insofar as the evidence of P.Ws. 2 to 4 is concerned, he 8 would submit that though in their earlier statements they speak about P.W.1 lying on the ground with injuries and that she was not in a position to talk, but, having regard to the evidence of the Doctor, it cannot be said that their version is an improvement over their earlier version.
12. Learned counsel appearing for the appellant - informant in Criminal Appeal No.69 of 2014 would contend that even if the motive is doubtful, but, when the evidence of P.W.1 establishes the presence and participation of the accused in the commission of offence, the finding of the trial court warrants no interference. He would further contend that the argument of the learned counsel for the petitioner that there was suppression of earlier statement may not also be correct, as information to the police was never given by P.W.1, but only by the villagers who gathered at the scene of offence. Merely because the reporters and the police arrived at the scene much prior to P.W.1 leaving the village in an ambulance, does not by itself lead to any doubt about the incident.
13. The point that arises for consideration in these three appeals is whether the prosecution was able to prove the guilt of the accused beyond reasonable doubt?
14. Before dealing with the involvement of A1 in the commission of the offence, we intend to go into other aspect viz., involvement of A2 and A3 in the commission of the offence in view of the appeals filed by the State and also by the Informant against the acquittal of A2 and A3.
15. It is not in dispute that A2 and A3 never participated directly in the attack on the deceased. P.W.1 who was examined as injured eyewitness to the incident deposed about the involvement of A1 alone in the commission of the offence. However, in the later part of the evidence, she deposed that on hearing her cries, many people came there and on 9 seeing them A1 left the scene on the motor bike along with A2 and A3. It is not her case, that A2 and A3 entered the house and participated in the attack along with A1. But the evidence of other witnesses which will be referred to hereunder does not show P.W.1 going out of the house. On the other hand, she was found by the side of her husband all through. It is nobody's case that one can notice the presence of person outside the house by standing in the verandah.
16. P.W.2 in his evidence states that on the date of incident at about 3.00 AM or 3.30 AM, he heard cries at the house of the deceased and then he along with his son Yerriswamy came running to the house of the deceased. He found A2 and A3 standing in front of the house on the motorcycle by keeping the engine on. He also noticed A1 coming out of the house of P.W.1 with an axe and thereafter he ran away along with A2 and A3 on motorcycle after seeing him. According to him, he has seen A1 with axe along with A2 and A3 on the bike in the lights of the house of the deceased and streetlights. However, in the cross-examination he admits that to reach the house of P.W.1 from his house, he has to pass through the road towards east, take a turn towards left and only then he will reach the house of P.W.1. He further admits the distance between his house and the house of P.W.1 is about 60 feet and not 300 yards as suggested. He further admits that by the time he reached the house of P.W.1, he noticed deceased lying with injuries in the varanda and his head facing towards west and legs towards eastern side. By that time, number of people including P.W.3, 5 and others were present. He also noticed P.W.1 crying and raising cries near body of Thimmappa, in a sitting posture, stating that her husband was killed. He further admits in his evidence that even after sustaining injuries, P.W.1 was able to speak freely. To a suggestion that P.W.1 fell unconscious after sustaining injuries and that she was not in a position 10 to talk was denied by him. According to him, 108 ambulance reached the village before 4.00 AM. From the evidence of P.W.2, it is clear that by the time he reached the scene of offence, P.W.3 and 5 were already present and he claims to have noticed A2 and A3 sitting on a bike stationed outside the house of P.W.1 and A1 leaving the scene along with A2 and A3 in the bike, which could not have been possible as A1 left along with A2 and A3 immediately after the incident.
17. P.W.3 in his evidence deposed that at about 3.00 AM or 3.30 AM, he heard cries from the house of Thimmappa and on hearing the same, himself and his son got up and went to the house of the deceased. He found A2 and A3 on the road with a motorbike in front of the house of the deceased. When they went inside, they found A1 armed with an axe coming out of the house of the deceased. He further states that P.W.2 and others immediately came behind him. But if we test it with the evidence of P.W.2, he never deposed about P.W.3 at the house of the deceased by the time he went. On the other hand, his version is that by the time he went to the house, P.Ws.3 and 5 were already present in the house.
18. Therefore, there arises a doubt as to when P.W.2 came to the scene and there is also any amount of doubt of he seeing A1 leaving the house along with A2 and A3 on a bike. Apart from that, at this stage it would be useful to refer to the evidence of P.W.1, who in her evidence deposed about A1 going away on a motor bike along with A2 and A3. Her evidence is to the effect that she was there in the veranda after sustaining injuries. As stated above, it is not her case that she came towards cattle shed or outside her house to see the presence of A2 and A3 on the road. The evidence on record establishes that there is no possibility of any one seeing the persons standing on the road in front of the house of P.W.1, either by standing or sitting from the verandah. 11 Therefore, the evidence of P.W.1, in our view, cannot be believed to hold that A2 and A3 were standing on the road and that A1 left along with A2 and A3. As held by us earlier even the evidence of P.W.2 does not establish the presence of A2 and A3 outside the house and A1 leaving with them.
19. Coming to the evidence of P.W.4 he in his evidence deposed that at about 3.00 AM or 3.30 AM in the night he heard some cries and went to the house of P.W.1. At that time, he noticed A2 and A3 were on the road with a motorbike. When he went inside the house, he found A1 armed with an axe coming out of the house of the deceased. Later, A1 along with A2 and A3 left on a motorbike towards Pedda Kowkuntla. According to him by the time he went to the house of the deceased, P.Ws.2, 3 and 5 and others were there. According to him, he could see the accused in the light of the bulb in varanda and also in the light of the streetlights. As stated by us earlier, even the evidence of P.Ws.2 and 3 is to the same effect. Each of them speak about the presence of A2 and A3 outside the house and A1 leaving the house with an axe. But, it is nobody's case that all theses witnesses arrived at the house of P.W.1 at the same time. It is not even the case of any of the witnesses that there was very little time gap between the arrival of P.Ws.2 to 5 to the house of the deceased. Therefore, each of the witnesses seeing A1 leaving the house along with the axe and then A1 going in the motorbike of A2 and A3, which was stationed outside, appears to be doubtful. Things would have been different had the evidence on record establish arrival of witnesses at different times and seeing A1 at different places. All of them in one voice deposed in a parrot like manner with regard to the presence of A2 and A3 outside the house and noticing A1 leaving the house armed with an axe after they entered the house of P.W.1 and the deceased. 12
20. Coming to the evidence of P.W.5, he also speak about witnessing A2 and A3 outside the house and A1 leaving the house along with A2 and A3 towards Pedda Kowkuntla. His evidence is also to the effect that he could see the accused in the light of the bulb in veranda and also with the help of streetlights. It is to be noted that P.W.5 and other witnesses categorically deposed that after the arrival of the neighbours, more particularly P.Ws.3 and 5, the accused left the scene. As per the evidence of P.W.5, he claims to have seen A1 coming out of the house and then leaving the scene along with A2 and A3. As observed by us earlier, when it is not the case of the prosecution that all the witnesses arrived at the scene at the same time, the evidence that all the witnesses seeing A1 coming out of the house along with axe and leaving on the motorcycle along with A2 and A3 cannot be accepted. In other words, we feel that the finding of the trial court with regard to the presence of A2 and A3 outside the house cannot be found fault with.
21. At this stage, learned Public Prosecutor relied upon the evidence of P.W.6 who claims to have seen A1 to A3 going on a motorbike on the road in front of his house from the western side towards eastern side. He claims to have seen the accused in the streetlights. However, in the cross-examination P.W.6 admits that by the time he reached the house of P.W.1, there are about 30 or 40 people present, but he did not talk with the people present there, nor did they talk to him. From the answers elicited, it is clear that large number of people gathered at the house by the time he reached the scene, as such, the question of he witnessing A2 and A3 still being there and then going on the motorbike on the road in front of his house, which according to him was at a distance of 30 feet from the scene, appears to be incorrect. On analysis of entire evidence of P.Ws.1 to 6 with regard to the presence of A2 and A3 outside the house, it would be clear that they would not have been stayed there till arrival of 13 all the witnesses. Each witness did not arrive at the scene at the same time, but all of them speak about A2 and A3 staying outside and leaving the scene along with A1 after he came out from the house of the deceased armed with an axe. It appears that all these witnesses are being made to speak about the presence of A2 and A3 at the scene and they leaving the scene along with A1. Having regard to the findings given above namely, none of them arriving at the scene at the same time, all finding A2 and A3 outside and each one of them not giving exact time as to when the incident took place, a doubt arises as to the presence of A2 and A3 at the scene. Hence, the finding of the trial Court in acquitting A2 and A3, in our view, warrants no interference.
22. Coming to the involvement of A1, the evidence on record show that one Arunamma who is the daughter of P.W.1 and the deceased, fell in love with one Maresh, who is son of the A3. It is also to be noted here that A2 and A3 are step brothers of Maresh. As per the version of P.W.1 when the said Maresh expressed his intention to marry Aruna, the deceased requested A3 to perform marriage of his son Maresh with his daughter, but A3 refused to perform stating that their status is on a much higher pedestal than that of P.W.1 and the deceased. It is said that A3 also threatened the deceased with dire consequences, if they approach with such proposal again. While things stood thus, couple of days prior to the incident, Maresh and Aruna went to Uravakonda to attend Car festival. The evidence of P.W.1 show that from there both of them went to Tirupati and got married. After that, they informed P.W.1 about the marriage. The Accused were under an impression that the deceased and P.W.1 were instrumental in performing the marriage of Maresh and Aruna and accordingly hatched a plan to kill the deceased. The learned Public Prosecutor mainly submits that there is a strong 14 motive for the accused to cause the death of the deceased, as the son of A3 married the daughter of P.W.1 and the deceased.
23. But, in the cross-examination of P.W.1, it has been elicited that Aruna and Maresh are living together in Pedda Kowkuntla village in the house of A1 and that they were blessed with a son. It was further elicited that the daughter of P.W.1 and their son-in-law visited their house four or five occasions after their marriage. To a suggestion that they lived in the house of A3 was denied and on the other hand, it was elicited that A3 was residing in Uravakonda after the marriage of Aruna and Maresh. It was further elicited that A2 has been residing in Uravakonda since long time, but cannot say the period. P.W.1 further admits that A1 and A3 started living in Uravakonda after the death of the deceased. To a suggestion that A1 to A3 have been living in Uravakonda since 10 to 12 years was denied. From the answers elicited in the cross-examination of P.W.1, it is apparent that though the marriage was alleged to have been performed to the dislike of the accused, both Maresh and Aruna were living in the house of A1 in Pedda Kowkuntla Village and that both of them were allowed to visit the house of P.W.1 and the deceased after the marriage. That being the position, it is very difficult to accept the motive as suggested by the prosecution for the accused attacking the deceased. When Aruna and Maresh are living in the house of A1 and when the relationship between daughter-in-law and accused is cordial, it is very difficult to accept any motive to attack the accused. Further, the evidence of the Investigating Officer, who was examined as P.W.13, discloses that his investigation did not reveal existence of any quarrel between the accused and the deceased at any time. He further submits that he has not examined any witness to show that the accused were having any intention to kill the deceased and his wife and that they were making preparation to kill them. As held by the Apex Court even if motive is not 15 proved that by itself cannot be a ground to accept the accused, if there is other evidence.
24. The next question for consideration is whether the evidence of P.W.1 can be accepted? As seen from the evidence on record, P.W.1, who is the wife of the deceased, is an injured eyewitness.
25. The counsel for the petitioner-accused mainly submits that there are number of circumstances to indicate that the incident happened in a totally different circumstances and that the accused were not responsible for the incident. One of the circumstances relied upon is the suppression of earlier information about the incident. As stated by P.W.1 and other witnesses, the incident in question took place between 3.00 AM and 3.30 AM, on the intervening night of 15/16-3-2011. It is the evidence of P.W.1 that the ambulance came to the village within half an hour of the incident and thereafter she was sent to the Government Hospital along with one, Gangamma - L.W.2. Her evidence also discloses that before she boarded the ambulance, the press reporters and the police were in the village and the people who gathered there informed about the incident to the Police and the reporters. This information of villagers, to whom P.W.1 has informed about the incident, and who in turn informed the Police before the First Information Report was given.
26. When the incident is said to have taken place at 3.30 AM; one cannot understand how the reporters/police reached the village in the mid-night even before any report is given. Further, even before the 108 Ambulance reached the village, the press and police were there and they were informed about the incident by the villagers. But, the nature of information received by them is not available on record. No action is initiated by Police then. No explanation is forthcoming from any quarters. This circumstance, in our view, assumes significance for the 16 reason that when P.W.3 went to the scene of offence after hearing the cries from P.W.1, he noticed P.W.1 raising cries as to the killing of her husband. His evidence is silent as to the manner and the persons responsible for the death of the deceased. While the evidence of other witnesses, who went to the house of P.W.1, discloses as if P.W.1 revealed the names of the assailants also. But, all the witnesses in their earlier statements gave a different version which stands established through Exs.D1 to D4 wherein these witnesses viz., P.W.2,3,4 and 5 stated that the deceased was lying down with injuries.
27. The evidence of P.W.1 would reveal that within half an hour after the incident, which, according to her, is said to have taken place between 3.00 AM and 3.30 AM, the ambulance came and she was taken to the hospital along with Gangamma - L.W.2. Though the prosecution tried to establish that a phone call was made by one of the residents of the village pursuant to which an ambulance came to the scene of offence, but fact remains the said ambulance reached the village from Uravakonda within half an hour after the alleged incident, by which time the police as well as the reporters were present in the village and to whom the villagers have informed about the incident. When it takes not less than half an hour for any vehicle to reach the scene of offence from Uravakonda and when it takes sometime for any of the residents in the village to inform to the ambulance, it is strange as to how the ambulance and police were there in the village within less than half an hour after the incident. Had the incident took place during day time, one could have imagined a call from any of the villagers to the ambulance immediately. Here is a case where the incident took place in the house of P.W.1 and after hearing the cries of P.W.1, the residents of the village claim to have gone to the house of P.W.1 in the mid night between 3.00 and 4.00 AM. That being the position, expecting an ambulance within no time, more 17 so, when it takes half an hour time for it to reach the village from where it was stationed, a doubt arises as to the time of the incident as well.
28. The evidence of P.W.11 - Doctor also assumes significance in deciding the credibility of the evidence of P.W.1. His evidence shows that on 16.3.2011 at about 4.10 AM he examined P.W.1 - Mangamma, who was accompanied by one Gangamma of Chinna Kowkuntla Village. He noticed about five injuries on the body of P.W.1. According to him the age of the injuries were 3 to 4 hours. He further deposed that except injury No.3, which was on upper lip which lead to loss of three upper teeth, all other injuries were simple in nature. He sent Ex.P6 intimation to the Police informing about the admission of the injured in the Hospital. This intimation according to P.W.11, was sent at 7.00 AM. In the intimation - Ex.P6 sent to Police, it was stated that the assault took place on 16.3.2011 at 4.00 AM. This endorsement on Ex.P6 viz., that the assault took place at 4.00 AM is contrary not only to the oral evidence of P.W.11 given in the Court, but also with the contents in Ex.P7 - wound certificate issued by him, wherein it has been stated that he commenced examination of P.W.1 at 4.10 AM on 16.3.2011 and the injuries are 3 to 4 hours old.
29. As stated, his version in the court with regard to the time when he examined her is contrary to the documents furnished by him. One document i.e., Ex.P7 which was said to have been issued at 7.00 AM shows as if the incident took place at 4.00 AM, while the other document which is the wound certificate issued immediately show that he examined her at 4.10 AM. When the incident took place at 3.00 AM or 4.00 AM and when the ambulance reached within half an hour and when P.W.1 left the village at 4.00 AM, the question of he examining P.W.1 at 4.10 AM is impossible, as the evidence on record discloses the traveling time between the scene of offence and Uravakonda Government Hospital 18 would be not less than half an hour. It is not as if the Doctor was not aware of the time. When he is so specific in stating that he examined P.W.1 at 4.10 AM, doubt arises whether he has really done so, more so, in view of the contents of Ex.P6 - the intimation sent to the Police about the admission of P.W.1. When the same was pointed out, the Doctor tried to get over the situation by stating that the injured came to the Hospital at 7.00 AM and therefore he has sent admission intimation to the Police at 7.00 AM. The explanation given by him is that it was by mistake he noted the time as 4.10 AM instead of 7.00 AM. But, this endorsement cannot be ignored in view of the suggestion given and the existence of rivalry between the two groups in the village. Insofar as the mentioning the age of injuries, he states in his cross-examination that basing on the colour of the injuries presence of foreign particles and stoppage of bleeding he decided the age of the injuries. From the evidence of the Doctor and discussion made it is clear that the incident could not have been happened between 3.00 AM/3.30 AM/4.00 AM as stated by P.W.1 and others. Further, when the age of injuries are 3 to 4 hours, it can be said the incident could not have been happened at 3.30 AM as stated by P.W.1. Probably to cover up the anomaly, in the police intimation he referred the time of incident at 7.00 AM. This evidence of the Doctor in our view throws suspicion over the entire prosecution case.
30. P.W.11 in his evidence further states that he was present when the police recorded the statement and he endorsed on the same as patient is conscious and coherent. Whether it was necessary for the Police to take such an endorsement was subject matter of comment by the counsel appearing for the appellant, when the evidence on record does not establish any threat to the life of P.W.1.
31. On the other hand, the evidence on record would show that all other injuries except injury No.3 were found to be simple in nature. 19 Having regard to the nature of injury No.3, the question would be whether she would have been in a position to speak. Ex.P20 is the case sheet of P.W.1. In the said case sheet it was specifically mentioned that P.W.1 sustained injuries due to assault by known person with injuries over head and mouth and that it is difficult for her to talk. It further states about vomiting, seizures and loss of consciousness to P.W.1. The same is also evident from the evidence of P.W.14 - Doctor who treated her subsequently at Ananthapur. Though she was conscious at the time when she was examined at Anantapur on 16.3.2011 at 11.15 AM, but, in the cross-examination he admits about the notings in Ex.P20 wherein it was mentioned as "patient was not able to speak - patient was finding difficult to speak". P.W.14 further states that though he examined the attendant Yerriswamy about the contents mentioned in Ex.P20, but no information contrary to the endorsement was furnished by the said attendant. He further states that he did not found any sutures to the wounds of P.W.1. However, the dentist who examined P.W.1 found that four teeth missing on the upper portion of the jaw. He also observed that it is difficult for P.W.1 to open her mouth, but, there was no internal bleeding and no airway obstruction. It was also noticed by the dentist that "occlusion disturbed" means the movement of mouth is disturbed. He also expressed doubt about the fracture of maxilla, but, however, no x.rays were taken. From the evidence of P.W.14 and the endorsement of the Dentist, it is very clear that there was loss of about four teeth. P.W.1 was experiencing seizures (fits) and loss of consciousness and the occlusion disturbed, meaning thereby, that P.W.1 was not in a position to open her mouth. That being the position it is difficult to believe that P.W.1 could have given this statement in the Hospital. Having regard to the manner in which P.W.11 gave evidence in the Court and even the endorsement made in Ex.P1 with regard to consciousness of P.W.1 at the 20 time of giving the statement and also as to her capacity to give statement has to be viewed with suspicion.
32. At this stage, it would also be useful to note certain facts. P.W.1 in her evidence categorically states that the teeth lost by her in the attack fell at the scene of offence and the cell phone of the accused also fell at the scene of offence. Her evidence is also to the effect that the handle of the axe used by A1 broke into two pieces at the scene itself. Insofar as loss of teeth is concerned it is to be noted that the scene of offence panchanama which was prepared by the investigating officer vide Ex.P10 does not disclose seizure of the same. Even the photographs of the scene does not disclose presence of fallen teeth at the scene. It appears that the teeth were not even recovered from the scene, leave alone marking them in the court during the trial.
33. Regarding breakage of handle of the axe even the broken pieces was not recovered from the scene. It may be true that axe had a broken handle at the time of recovery, but the evidence of P.W.1 that the handle of the axe broke into two pieces at the time of usage is not corroborated by the recovery of the broken pieces. Apart from all these things one fact which requires to be noted is that though P.W.1 in her evidence speaks about cell phone of A1 falling at the scene, but the same is not reflected in any of the photographs of the scene marked as Exs.P13 to 19. Further, no effort was made by the investigating officer to find out as to whether the cell phone recovered was that of the accused. Had he made some effort to find out to collect the call data and the details of the person holding the number of that cell phone, one could have established that the accused No.1 is the owner of the cell phone. At this stage, it would be useful to refer the evidence of investigating officer with regard to accused leaving the place with weapon. In the cross-examination P.W.13 admits that none of the witnesses stated before him about A1 21 coming out of the house with axe having broken handle. It is useful to extract the admission of P.W.13, which is as under :
"It is true none of the witnesses had stated before me that they saw accused No.1 coming out from the house of the deceased with the axe with broken wooden handle. It is true none of the eye witnesses examined by me including P.Ws.2 to 7 and L.W.2 Gangamma, L.W.6 Prasad, L.W.7 B.Yerriswamy, L.W.9 B.Vonnurappa, L.W.10 V.Veeranjineyulu and L.W.10 V.G.Yerriswamy had stated before me that all of them were present and witnessed the accused No.1 coming out of the house of the deceased. It is true all the witnesses had stated before me that P.W.1 had narrated the incident to each one of them separately when they asked her as to how the incident occurred.'
34. The evidence of P.W.13 makes it clear that none of the witnesses who have reached the scene saw A1 coming out of the house with weapon having broken handle.
35. Though normally in a case of this nature, Courts give lot of importance to the evidence of an injured eyewitness whose presence in the house at the time of the incident is probable, but, having regard to the circumstances indicated above, more particularly, the evidence of P.W.11 - Doctor, whose evidence doubts the presence of P.W.1, coupled with the circumstances of Police and Press Reporters reaching the Village within no time from the time alleged by P.W.1, a doubt arises as to whether really the incident took place at the time alleged. It is also to be noted that the earlier information received by the Police and information that is furnished by the villagers after they reached the village and before P.W.1 leaving the village, remained suppressed and undisclosed. Once the earliest information received by the Police is suppressed, the fabric of the case is required to be viewed with suspicion. Hence a doubt arises as to the time and manner in which the incident took place, more so, having regard to the differences and affiliation of the accused with the political party.
22
36. It is also to be noted here that the medical evidence is inconsistent with the prosecution case. It is not the case of the prosecution that the deceased was attacked while he was standing or in sitting posture. On the other hand, the evidence on record is, while he was lying flat on the ground with his back up, the accused are said to have attacked the deceased causing injuries. But, the evidence of the Doctor is otherwise. As seen from the evidence of P.W.9 - Postmortem Doctor, he noticed nine chop injuries on the body of the deceased and the cause of death was due to multiple chop wounds. The chop wounds as admitted by the Doctor are different from stab injuries and lacerated wounds. Out of chop wounds, injuries Nos.7 to 10 are on the left side of the body, while injuries Nos.1 to 3 are on the right side of the body. Injuries 4 to 6 are on the back of the neck and head. The Doctor admits that injuries 4 to 6 cannot be caused to a person lying with the back facing up. He further admits that if culprit uses the axe with full force, there will be more depth in the injuries caused to the victim and no great depth of the injuries are found in this case. He further admits that there is possibility of injuries being caused with a domestic sickle. He further admits that injuries 4 to 6 are possible to have been caused when the victim is sitting or in a standing position. Insofar as injury No.9 is concerned, he states that it is a defensive wound. From the evidence of the Doctor it is very clear that injuries 4 to 6 could not have been caused when the injured was lying on backside and these injuries are possible only when the deceased was standing or in a sitting posture. P.W.1, as stated by us earlier, in her evidence never speaks about the deceased getting up or was in a sitting posture at the time of the incident. It is also not her case that the deceased made some effort to ward off blows leading to injury No.9. Further, the Doctor admits that these injuries are possible only if 23 the victim is attacked with a weapon horizontally which is again not the case of the prosecution.
37. It would be useful to refer to the admissions of P.W.9 - Postmortem Doctor, to the extent relevant, in his own words, which are as under :
"It is true the chop injury is different from a stab injury. It is also different from a lacerated wound. Chop wound will have different character.
Injuries Nos.4 to 6 are caused on the back of head and neck. It is true injuries Nos.4 to 6 cannot be caused to a person lying on the back side.
There is possibility of causing the above said injuries with a domestic sickle. The injuries Nos.4 to 6 are possible to have been caused if the victim is in the sitting posture or in the standing position. Injury No.10 is an independent injury.
If slip shot with an axe may cause chop injury. The above noted injuries may be possible with the hunting sickle also. The injuries are possible if the victim is attacked with a weapon horizontally."
38. It would be useful to refer to the deposition of P.W.11 - Doctor, to the extent relevant, in his own words, which is as under :
On 16.3.2011 at about 4.10 AM I had examined P.W.1 Mangamma, wife of Thimmappa. She was accompanied by one Gangamma of Chinna Kowkuntla Village. It is true that when P.W.1 was in the Hospital, Police came there and recorded her reported statement in my presence. I was present through out recording of the statement. I had certified that the patient was conscious and coherent while recording the statement. My certification is there in Ex.P1 as noted under Ex.P8.
If the patient is found to be having B.P. levels at 90/60, the consciousness of the patient will be certainly diminished. It is true that I have noted the B.P. condition of P.W.1 as 90/60 in the accident register written by me at the time of admission. The injured came to the hospital at 7 AM, therefore, I have sent admission intimation to the police at 7.00 AM. It is true it is mentioned in Ex.P7 - wound certificate the injured came to the hospital at 4.00 AM and the examination was commenced at 4.10 AM on 16.3.2011.
The patient (P.W.1) was brought to the hospital at 7.00 AM in 108 ambulance. It is true, the serial number of the accident register is not mentioned in Ex.P7 - wound certificate. I have noted in Ex.A7 that 24 I examined the patient at 4.10 AM is a mistake. It is true that even in the referral letter also I have mentioned that I examined the patient at 4.10 AM.
P.W.1 was experiencing pain at the time of my examination. I did not examine inside the mouth of P.W.1. There is some swelling on the mouth of P.W.1. Anesthesia will be given to the patient if the lips are sutured. It is true I have mentioned in the referred letter that I have sutured and dressed. It is true if there is severe occlusion the patient cannot talk."
39. It would be useful to refer to the admissions of P.W.1, to the extent relevant, in his own words, which are as under :
"It is true my daughter Aruna and Maresh are living together in Pedda Kowkuntla Village in the house of A1. Aruna and Maresh are blessed with one son. It is true my daughter and my son-in-law had visited our house on four or five occasions after their marriage. It is not true to suggest that my husband used to cultivate land of our M.L.A. on lease. The witness adds : my husband used to attend to coolie work.
It is true there is one cement road near by my house. It is the main road of our village. Myself and my husband were sleeping on a bontha on the floor. Bontha is stitched by keeping many sarees together. We did not have any pillows and table fan. From our house we have to go through the cattle shed only to go to outside. There is no door to that cattle shed. To the north of the verandah there are two rooms comprising of kitchen and store room.
My husband came to the home at about 11.00 and informed me about the time. I am an illiterate. I cannot say the timings and date. My husband was running a kirana shop at S.C. colony, which is at a distance of 2 K.Ms. By the time I reached the hospital there was some light of sun. I am an illiterate therefore I cannot say the timings and the dates but it was written in the report. The 108 vehicle reached our village with ½ hour of the incident. Myself and Gangamma only went to the Hospital in the vehicle. Police also came in the same vehicle. The witness again says the police did not come in the said vehicle.
The cell phone had fallen only where my husband was attacked. The accused had taken away the axe along with them. The remaining piece of the handle of the axe must have fallen near and around the scene of offence. It is true that the police station is there on the way to the hospital in Uravakonda."25
40. Having considered the circumstances above, the Criminal Appeal No.1164 of 2012 is allowed. The conviction and sentence recorded against the appellant/accused No.1 in the judgment dated 15.11.2012 in S.C. No.52 of 2012 on the file of the I Additional Sessions Judge, Anantapur, for the offences punishable under Sections 302, 307, 326 and 450 I.P.C. is set aside and he is acquitted for the said offences. Consequently, the appellant/accused No.1 shall be set at liberty forthwith, if not required in any other case.
41. Further, for the reasons stated above, Criminal Appeal No.69 of 2014 and Criminal Appeal No.840 of 2013 are dismissed.
Miscellaneous petitions pending, if any, shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR __________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date : 22.11.2019 skmr