Andhra Pradesh High Court - Amravati
Thiruchanur Amaranath vs State Of A.P., Rep. By P.P. Hyd. on 21 May, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
AND
THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN
CRIMINAL APPEAL NO. 219 OF 2013
JUDGMENT:(Per Hon'ble Sri Justice M.Satyanarayana Murthy) The accused - T.Amaranath, in Sessions Case No.330 of 2011 on the file of III Additional Sessions Judge (F.T.C), Anantapur, preferred the present criminal appeal challenging conviction and sentence passed against him for the offences punishable under Sections 324 and 302 I.P.C to undergo imprisonment for life and to pay fine of Rs.1,000/- in default to suffer simple imprisonment of one month. Further, the accused was also sentenced to suffer simple imprisonment for a period of six months, while ordering both substantive sentences to run concurrently.
The case of the prosecution in nutshell is that, one Jayakumar, aged 23 years S/o Suryanarayana, was the resident of Narasimpalli, Tadimarri Mandal, while the accused - Amaranath and one Sumathi - P.W.10, sister of the accused were also residents of the same village. Jayakumar after completing his studies at Anantapur, attended management of Brahmamgari Temple, whereas the sister of accused Sumathi was studying X Class in Rajendra Municipal High School, Anantapur by staying in Balasamudram hostel. She completed her education one year before the incident, she developed acquaintance with Jayakumar 2 and both of them became close to each other, developed illicit intimacy.
Twenty days prior to the incident, Jayakumar came to Narasimpalli to attend domestic work. While so, during broad day- light at 12.30 noon, when P.W.10 - Sumathi was present alone in her house, Jayakumar went to her house. Surprisingly, the accused who went outside returned to the house and noticed the presence of Jayakumar with Sumathi. Immediately, the accused took the axe, dealt a blow on the rear side head of Jayakumar and caused head injury. The accused also inflicted injuries on P.W.10 - Sumathi, as a result, there was hue and cry in the house. On hearing the cries, P.W.-1 V. Krishnamurthy and some others who were present nearby the scene of offence, witnessed the accused going away from the scene of incident holding the weapon used in commission of offence (M.O.5). While leaving the scene of offence, the accused yelled that, he caused death of brother-in-law of P.W.1-V. Krishnamurthy. Immediately, P.W.1 and others entered into the house and found the body of Jayakumar in pool of blood with hack injuries and also noticed the presence of P.W.10 - Sumathi with hack injuries, sitting near Jayakumar. Immediately, P.W.1 -V. Krishnamurthy, P.W.5 - Srinivasulu, P.W.3 - Indiramma and L.W-7 Ramalakshmamma shifted the injured Jayakumar to R.D.T Hospital, Bathalapalli, where first aid was given to him and from there, he was taken to Government General Hospital, Anantapur, where Jayakumar succumbed to injuries on the same day i.e. on 26.02.2011. The injured P.W.10 - Sumathi, was also shifted to Government Hospital, Anantapur by her mother. On the 3 complaint of P.W.1 - V.Krishna Murthy, Assistant Sub Inspector of Tadipatri Police Station registered a case in Crime No. 5 of 2011 under Sections 324 and 302 of I.P.C, issued F.I.R and submitted original F.I.R. to the jurisdictional Magistrate and concerned higher officials of the Department.
On receipt of copy of F.I.R., Inspector of Police, P.W-16 - C.M.Gangaiah took up investigation, held inquest over the dead body of Jayakumar on 27-02-2011 in the presence of inquest panchayatdars viz., S.Venkateswara Prasad, D.Pullappa and M.Kristappa (L.Ws 13 to 15). The Inspector visited the scene of offence, during observation, seized piece of blood stained slab and controlled earth from the scene of offence in the presence of mediators P.Ramappa (L.W -11) and D.Venkataramudu (P.W 8) under the cover of mediator's report dated 27-02-2011 drafted at 1-30 P.M. The dead body of Jayakumar was handed over to the doctors to conduct autopsy. Dr.M.Babu - P.W-12 conducted autopsy over the dead body of Jayakumar and issued Ex.P-5 - Post Mortem Report opining that the cause of death was due to injuries caused on the head of Jayakumar.
The Inspector of Police examined P.Ws. 2 to 5 and 7, observed the scene of offence in the presence of mediators, drawn rough sketch of the scene of offence Ex.P-10. Later, the accused was arrested on 01.03.2011 at 01:30 P.M and on interrogation, in the presence of mediators B. Raghava Reddy and M. Golla Gopal (LWs.16 & 17), the accused confessed that he had committed the offence and on the confession made by the accused, seized axe 4 (M.O.5) under the cover of Ex.P-8 seizure mahazar dated 01-03-2011 at 12-00 noon.
P.W-16 Inspector C.M.Gangaiah collected maroon colour red half sleeves shirt with black stripes with two pockets (M.O-1), Yellow, Blue and sky colour full drawer (M.O-2), Polyster lungi (M.O-3), Waist thread four rows red in colour (M.O-4) from the Government Hospital and blood stained black stone (M.O-6), Control stone (M.O-7) and Red Bangle piece of P.W-10 (M.O-8) under the cover of inquest mahazar (Ex.P-3), sent to Forensic Science Laboratory for examination along with letter of advice (Ex.P-11), received R.F.S.L Report-Ex.P12.
After collecting the entire material including, post-mortem examination report-Ex.P-5 and FSL Report-Ex.P-12, Inspector of Police, Madanapalle filed charge sheet against the accused/appellant, having come to the conclusion that the accused caused injuries on the body of Jayakumar, which resulted in his death, with an intention to kill him, having knowledge that those injuries would cause death in ordinary course of events and also for causing injuries on the body of P.W-10 - Sumathi who is none other than his sister, having found her with the company of Jayakumar. The case was taken on file for the offences under Sections 324 and 302 IPC by the Judicial Magistrate of First Class, Dharmavaram and registered the same as P.R.C No.16 of 2011. The Judicial Magistrate of First Class committed the case to the Sessions Division, Anantapur, as the offence under Section 302 IPC is exclusively triable by Court of Sessions. The Principal Sessions Judge, Anantapur, registered the same as Sessions Case 5 No.330 of 2011 and later made over the same to III Additional District and Sessions Judge (FTC), Anantapur.
On securing the presence of the accused, upon hearing, the learned Additional Public Prosecutor and the Defence Counsel, the Sessions Court framed charge against the accused/appellant for the offences punishable under Sections 324 and 302 IPC, read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried.
During trial, the prosecution has examined PWs. 1 to 16 and got marked Exs.P-1 to P-12, M.Os.1 to 8 to substantiate the case of the prosecution. After closure of prosecution evidence, the accused was examined under Section 313 Cr.P.C, explained the incriminating material that appeared against him in testimony of prosecution witness and he denied the same, on behalf of the accused D.W-1 was examined and marked Exs.D-1 to D-10 in defence.
Upon hearing argument of learned Additional Public Prosecutor and Defence Counsel, the Court below found the accused guilty for the offences punishable under Sections 324 and 302 IPC, convicted and sentenced him to undergo imprisonment for life and to pay fine of Rs.1,000/- in default to suffer simple imprisonment of one month.
Aggrieved by the conviction and sentence passed by the Court below in Sessions Case No.330 of 2011, the present appeal is preferred.
The main grounds urged are that, the Trial Court placed reliance on the oral evidence of P.Ws.1 to 11 erroneously, while 6 ignoring the material discrepancies in their evidence, which are sufficient to discard the testimony. Similarly, P.W.1 gave an exaggerated version in his evidence before the Court that there are material omissions in Ex.P-1, in the previous statement recorded under Section 161(3) Cr.P.C. Giving credence to the oral evidence of P.W.1, who is relative of the deceased, is an apparent error, committed by the Trial Court. It is also further contended that recovery of M.O-5 under the cover of seizure panchanama Ex.P-8 by P.W.10 on the confession leading to discovery is not substantive evidence, but the evidence adduced by the prosecution appears to be artificial. The prosecution also failed to establish that the injury found on the body of the deceased Jayakumar and P.W.10 Sumathi was caused with an axe M.O.5, allegedly recovered by P.W.10 under the cover of Ex.P-8 and thereby, M.O.5 cannot be connected to the offence. It is urged in the grounds of appeal that, the Trial Court also ignored the medical evidence, since it is consistent that no incised wound was found on the body of the deceased Jayakumar and P.W.10 - Sumathi and such injury could not have been caused with M.O.5. The Trial Court also ignored Exs.D-5 to D-10 to establish plea of the accused that he was living in a different house and therefore, the Trial Court committed a serious error in appreciation of the evidence and erroneously found the accused guilty and requested to set-aside the same.
During hearing, Smt. Vasundhara Reddy, learned counsel appearing for the appellant/accused mainly contended that, the presence of P.W.1 at the time when the accused was leaving the scene of offence holding the axe M.O.5 after allegedly causing 7 death of Jayakumar is improbable and unbelievable, for the reason that, the rough sketch of the scene of offence marked as Ex.P-10 did not disclose the residence of P.W.1, who is claiming to be the neighbour of the accused, having heard the cries of the deceased on receipt of injuries. When Ex.P-10 does not disclose the house of P.W.11, question of hearing cries from the scene of offence, cannot be believed and it improbablises the evidence of P.W.1. That too, hearing cries and noticing the accused, leaving the scene of offence holding the axe M.O.5, while yelling that he killed his brother-in- law, Jayakumar, cannot be believed.
It is further contended that, there is material improvement and the omission to state that P.W-1 directly witnessed the incident of giving second blow with M.O-5 is sufficient to disbelieve the version of P.W-1, since it is an improved version, suddenly developed during trial. On the basis of such unreasonable witness, the conviction cannot be recorded and requested to set-aside the conviction.
The learned counsel for the appellant/accused, in alternative, submitted that the injuries caused on the head of deceased Jayakumar are fractured wounds and they could be caused only with blunt side of the axe - M.O-5. Even otherwise, the accused allegedly took out the axe suddenly when he saw Jayakumar in the company of his unmarried sister, as both Jayakumar and P.W.10 - Sumathi were in love with each other, the accused grew wild on seeing them together, in sudden and grave provocation, he caused those injuries with no intention to kill them. Therefore, at best, the incident if proved, would attract 8 the offence punishable under Part-II of Section 304 I.P.C and relied on several judgments in support of contentions, both main and alternative contentions and they will be referred at appropriate stage while deciding the points for determination.
Whereas, the learned Additional Public Prosecutor Sri Dushyanth Reddy supported the judgment of the Trial Court in all respects, while contending that the evidence of P.W.16 with regard to finding house of P.W.2 nearby the scene of offence, he simply stated that the house was not shown in Ex.P-10 rough sketch and that indicates that the house of P.W.1, though in existence being a neighbour to the scene of offence, it was not shown. Therefore, mere failure to show the house of P.W.1 is not a ground to discard the evidence of P.W.1, more particularly, about noticing the accused while coming from the scene of offence holding the axe M.O.5, while yelling that he killed the brother-in- law of P.W.1.
Yet, another contention raised by the learned counsel for the appellant is that, Ex.P-1 is only information to the police about commission of cognizable offence and it need not contain minute details of the manner of occurrence. Therefore, omission to mention the exact person witnessing the incident while the accused giving second blow on the head with M.O-5 cannot be treated as a material omission and when oral evidence is consistent before the Trial Court, the Court cannot brand him as wholly unreliable witness. Therefore, the evidence on record is suffice to support the judgment of the Trial Court, holding that the accused committed an offence punishable under Sections 302 and 9 324 I.P.C and requested to confirm the conviction and sentence passed by the learned III Additional Sessions Judge (FTC), Anantapur in Sessions Case No.330 of 2011 dated 15.02.2013.
Considering rival contentions, perusing the material available on record, the points that arise for determination are as follows:
1) Whether the accused caused injury on the body of Jayakumar with an intention to kill him, knowing that the injuries caused on his head with the axe M.O-5, allegedly are sufficient to cause death in normal course of events?
2) Whether the accused caused any injuries on the
body of P.W.10 - Sumathi with a dangerous
weapon. If so, whether the conviction and
sentence passed by the learned III Additional Sessions Judge (FTC), Anantapur against the accused be sustained under Sessions Case No.330 of 2011 dated 15.02.2013?
Section 374 Cr.P.C conferred a substantive right of appeal on the accused who is convicted by the Trial Court and this Court while exercising power under Section 374(2) Cr.P.C is bound to re-appraise entire evidence to come to an independent conclusion, uninfluenced by the findings recorded by the Court below and decide the legality of conviction and sentence passed by the Sessions Court. Hence, it is the duty of this Court to re-appraise entire evidence recorded by the Court below after giving an opportunity to both the parties, i.e accused and the respondent, unless the Court finds manifest perversity in the calendar and judgment or such findings were recorded without evidence, 10 normally, this Court cannot interfere with such fact findings in appeal, while exercising jurisdiction under Section 374(2) Cr.P.C. It is the sacrosanct duty of the appellate court, while sitting in appeal against the judgment of the trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re-assessment, re-appreciation and re-scrutiny of the material on record. Appreciation of evidence and proper re- assessment to arrive at the conclusion is imperative in a criminal appeal. That is the quality of exercise which is expected of the appellate court to be undertaken and when that is not done, the cause of justice is not sub-served, for neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence on record to assure his guilt (vide Kamlesh Prabhudas Tanna & Anr v. State Of Gujarat1). Keeping the scope of Section 374(2) Cr.P.C we would like to re-appreciate entire evidence on record to come to an independent conclusion, uninfluenced by the findings recorded by the Court below. P O I N T No.1:
The case of prosecution is totally based on circumstantial evidence, since the incident allegedly took place in the house of the accused/appellant and it is never the case of the prosecution that the incident was witnessed by any witness. It is the obligation of prosecution to establish each and every circumstance to complete the chain of circumstances pointing out the guilt towards the accused/appellant and inconsistent with the innocence. 1 (2013) 15 SCC 263 11 When the case is based on circumstantial evidence, burden of proof is always on the prosecution to prove all the circumstances from which conclusion of guilt is to be drawn must be fully established and the facts so established must be consistent with hypothesis of guilt of accused and any circumstance consistent with innocence of accused, he is entitled to benefit of doubt. (vide Kishore Chand v. State of Himachal Pradesh2) The Apex Court while discussing the scope of Section 3 of the Evidence Act, more particularly, circumstantial evidence held that, in a case of murder when the prosecution relying on circumstantial evidence, it is for the prosecution to prove all the incriminating facts and circumstances and the circumstances which are incompatible with innocence of the accused to draw inference of guilt and such evidence should be tested by touch-
stone of law relating to circumstantial evidence laid down by Supreme Court (vide Syed Hakkim & another v. State3) Similarly, in G.Parshwanath v. State of Karnataka4, the Supreme Court is of the view, when the case of the prosecution is based on proof of circumstantial evidence on the basis of which conclusion of guilt is drawn must be fully established fully, individual chain of circumstances must be complete pointing out the guilt of accused, all proved facts must lead to inference of guilt of the accused alone and court has to draw distinction between primary and basic facts while appreciating the circumstances and regard must be had to common course of natural events and 2 AIR 1990 S.C. page 2140 3 2009 Cr.L.J. page 1891 4 AIR 2010 S.C. page 2914 12 human conduct and finally the facts established should be consistent only with hypothesis of guilt of accused and it does not mean that each and every hypothesis suggested by the accused must be excluded by proved facts. In Rukia Begum Vs. State of Karnata with Issaq Sait and another v. State of Karnataka with Nasreen v. State of Karnataka5; Jagroop Singh Vs. State of Punjab, Inspector of Police, Tamil Nadu Vs. Balaprasanna6 Shaik Khadar Basha v. State of Andhra Pradesh7, the same principle was reiterated.
The Supreme Court in Trimukh Maloti Kikran v. State of Maharashtra8, wherein the Supreme Court held as follows:
"In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence In view of the settled principle of law, the prosecution made a sincere attempt to prove each and every circumstance, pointing out the guilt of the accused that the offence punishable under Section 302 I.P.C by drawing inference from the proved facts and circumstances which are consistent only with hypothesis of guilt of accused before the Trial Court and inconsistent with innocence. 5 AIR 2011 SC page 1585 6 2009(1) ALD (Crl.) page 113 7 2009(1) ALD (Crl.) page 859 (AP) 8 (2006) 10 SCC 681 13 The case of prosecution, as narrated above is based on both direct and circumstantial evidence. The direct evidence available on record is the evidence of P.W-1, who is none other than brother-
in-law of the deceased Jayakumar and neighbour of accused and P.W-10 Sumathi. The house of P.W-1 and scene of offence are separated by a hayrick yard. The basis for registration of crime is Ex.P-1 on 26.02.2011, where P.W-1 clearly mentioned that there was love affair between the deceased Jayakumar and P.W.10 Sumathi due to acquaintance at Anantapur, while she was studying X Class by staying in a hostel, he used to visit the hostel to see her. Therefore, the affair between the deceased Jayakumar and P.W-10 Sumathi is not in much controversy. However, it is only one of the circumstances.
According to Ex.P-1, on 26.02.2011, in the early hours when P.W-1 took his cattle for grazing and returned in the afternoon at 12:30 noon and while tethering cattle, he heard cries from the house of the accused and P.W-10 - Sumathi. Immediately, he ran to the house of the accused and P.W-10 on hearing the cries, noticed that the accused came out from the house with an axe M.O-5 and running on the road. Immediately, P.W-1 entered into the house and found his brother-in-law Jayakumar lying in pool of blood in supine position, whereas, P.W-10 Sumathi was sitting with the support of the wall in the room with a bleeding injury on her head. Immediately, his co-brother Pathipati Sreenivasulu and his wife Indiramma and co-brother's wife Ramalakshmamma and Krishnaveni came there and they shifted the injured Jayakumar in an auto to R.D.T. Hospital, Bathalapalli. There, the doctor gave 14 first aid to Jayakumar and thereafter, shifted to Government General Hospital, Anantapur at about 3:30 P.M, and Jayakumar succumbed to injuries at 4:00 P.M while undergoing treatment on the same day. In the report to the police, P.W-1 did not state anything about witnessing the second blow given on the head of Jayakumar by the accused. Whereas, in his statement recorded under Section 161(3) Cr.P.C, P.W.1 did not disclose about witnessing the incident i.e, causing second blow on the head of the deceased, except stating that, on hearing cries from the house of accused and P.W-10 Sumathi, he immediately ran into the house of the accused and there he noticed the accused coming out of the house holding an axe M.O-5 and running on the road holding the axe M.O-5, while saying that he killed the brother-in-law of P.W-1. The statement of P.W-1 recorded under Section 161(3) Cr.P.C is replica of his statement vide Ex.P-1. Ex.D-1 is part of the statement i.e contradiction marked in the evidence of P.W-1. There is a material improvement in the evidence of P.W-1 regarding, witnessing the incident of causing a blow on the head of Jayakumar. In examination-in-chief, P.W.1 stated that, on 26.02.2011, at 12:30 noon when he returned home after grazing his cattle and tethering them in the shed, he heard cries from the house of the accused and the house of the accused is separated by hayrick yard, suspecting that it is the voice of his brother-in-law Jayakumar, P.W-1 rushed to the house of the accused, saw the accused coming out from the house with an axe- M.O.5 and reached the main entrance door of his house, the accused stated to P.W-1 that "RAI NEE BAVAMARIDINI CHAMPINANU CHOOSUKO 15 PORA" (in vernacular). Immediately, P.W.1 entered into the house of the accused, after the accused went out and saw the body of Jayakumar lying in pool of blood with injuries on the backside of the head, whereas, P.W-10 Sumathi was also present at the scene of offence in the room with bleeding injuries on the left side of her head. Thereafter, Indiramma and others came there. Hence, the consistent evidence of P.W-1 in the examination-in-chief is that, he just witnessed the incident while the accused leaving the scene of offence holding M.O-5 in his hand. But, in the cross-examination, there is a clear improvement i.e. witnessing the second blow given on the head of deceased Jayakumar by the accused with M.O-5 - axe. The specific sentence in the cross-examination is extracted hereunder for better appreciation of the case:
"On hearing the cries, I immediately entered in the house of accused, by that time the accused already hacked on the head of deceased and I saw when the accused hacking 2nd time on the head of deceased."
This piece of evidence is a clear improvement in the evidence of P.W-1 about witnessing the incident of second blow dealt with by the accused on the head of the deceased Jayakumar. If really, P.W-1 witnessed the incident while dealing with the second blow by the accused on the head of Jayakumar, atleast he would have stated the same either in the statement recorded by the police during investigation or in Ex.P-1 Police Report. Though Ex.P-1 is only an information given to the police about commission of a cognizable offence, it need not contain minute details of the incident. Therefore, omission of mentioning about witnessing the incident of dealing with the second blow by the accused on the 16 head of Jayakumar by itself is not a ground to brush aside the evidence of P.W-1 with regard to witnessing the incident. However, when he was examined by the police and recorded his statement, atleast he would have stated about witnessing the second blow given on the head of Jayakumar by the accused, which is a material fact, which throws light on the complicity of the accused. But, he did not state anything in the statement recorded by the police under Section 161(3) Cr.P.C. This omission goes to the root of the case. More curiously, even in examination-in-chief of P.W-1, he did not state anything about witnessing the incident while dealing with the second blow by the accused on the head of Jayakumar. But, suddenly, the case of prosecution was improved in the cross-examination. Therefore, failure to mention about witnessing the incident i.e dealing with the second blow on the head of Jayakumar by the accused is a material fact, which throws light on the complicity of the accused. But, failure to mention the material fact either in the statement before the police, recorded under Section 161(3) Cr.P.C creates any amount of suspicion or doubt on the veracity of the testimony of the witness, more particularly, when it is a sudden improvement in the cross- examination. Hence, the evidence of P.W-1 with regard to witnessing the incident while dealing with the second blow on the head of Jayakumar by the accused is highly doubtful and it cannot be believed, except to the incident of noticing the accused coming out from the house, holding M.O-5, running on the road while yelling that he killed the brother-in-law of P.W-1 and asking him to go and see him. Therefore, the direct evidence of P.W-1 regarding 17 witnessing the incident while the accused dealing with the second blow on the head of Jayakumar is not believable, except this part of evidence, no other direct evidence is available on record. Hence, the consistent evidence of P.W.1 witnessing the accused while leaving scene of offence, holding an axe while yelling that he killed his brother-in-law and to go and see can be believed.
Coming to the medical evidence on record, P.W-12 - Dr. M.Babu is the doctor who conducted autopsy over the dead body of Jayakumar and found the following injuries on the head of Jayakumar.
External injuries :
1. Sutured wound of 7 cms, present horizontally with five black silk thread intact sutures, over upper part of occipital region of the scalp on left situated 0.5 cms outer to posterior mid line. On removal, of the sutures, a gaping laceration of 7 x 3 cms, scalp deep present horizontally. Wound margins are irregular and inverted and contused. Wound is filled with blood clots.
2. Sutured wound of 6.5 cms, present obliquely with four black silk thread intact sutures over middle part of occipital region of the scalp in the mid line situated at 4.5 cms below and oblique and towards left to wound No.1. On removal of the sutures, laceration of 3x1.5 cms, scalp deep, present irregularly. Wound margins are irregular and contused and wound is filled with blood clots.
3. Laceration of 4.5x 2 cmṣ, scalp deep, resent obliquely, over middle part of occipital region of the scalp on right situated 1 18 cms outer to midline and situated just adjacent to the wound No.2 and wound situated more towards right. 1 cm length of intact skin present in between 2 and 3 wound.
Wound margins are irregular, inverted and contused. Wound is filled with blood clots.
Internal injuries :
1. Diffused contusion of 17x12 cms. Present over parieto temporal region of deep layers of scalp on right with severe extravasation of blood into the surrounding tissue. 0.5 to 1 cm thickness blood clots are seen. Red in colour.
2. Diffused contusion of 26x17 cms, present over entire occipital region of the scalp. 0.5 cms. Thickness blood clots are present with severe extravasation of blood in to the surrounding tissue. Red in colour.
3. Irregularly placed shaped Fissured fracture of 12 cms present over left side of occipital bone of the cranium involving the both the tables. In its course commenced from the mid portion of occipital bone at the level superior nuchal line and extended upwards up to the midpoint of lambdoid suture on left and further it is directed towards right and ending of the occipital protuberance. Fractured bone edges are stained with blood with severe extravasation blood in to the surrounding tissue.
4. Fissured fracture of 12 cms, present obliquely at innver 1/3rd of left side posterior cranial fossae of the base of the skull, situated from mid portion of squamous part of the 19 occipital bone and extended up to the left side of the foramena magnum. Fractured bone edges are stained with blood with severe extravasations blood in to the surrounding tissue.
5. Thin layer of sub Archnoid Haemorrhage present all over the brain. Cut section brain shown multiple petechial hemorrhagic spots in the substance of the brain.
Injury Nos.1 and 2 noted in the external examination are corresponding to Injury Nos. 3 & 4 noted in the post mortem examination. The doctor also found diffused contusion of 17x12 cms and 26x17 cms. But, these two injuries are different from the Injury Nos. 3 & 4 of external injuries. Therefore, the internal injuries found on the body of Jayakumar are five in number. According to the evidence of P.W-1, only the accused dealt with two blows with an axe and witnessed the second blow. But, how the other three injuries were found during post mortem examination was not explained. On overall consideration of oral evidence of improvement in the cross-examination of P.W-1, his previous statement recorded under Section 161(3) Cr.P.C, admissible portion marked as Ex.D-1, contents of Ex.P-1 and medical evidence, it is difficult to accept the evidence of P.W-1 witnessing the incident directly, while accepting part of his testimony to the extent of accused leaving the scene of offence, holding an axe M.O.5, while yelling that he killed brother-in-law of P.W.1. Hence, the evidence of P.W-1 with regard to witnessing the incident directly is disbelieved.
20
The other evidence available on record is circumstantial evidence. The Court can record conviction of the accused if these circumstances complete the links in the chain of circumstances.
The following are the circumstances the prosecution relied upon:
1. Acquaintance between the deceased- Jayakumar and P.W.10
- Sumathi and love affair between them, finding them together at the scene of offence.
2. Accused running from the scene of offence holding the axe M.O-5 while asking P.W.1 to go and see as he killed his brother-in-law and noticing the same by P.W.1.
3. Sustaining injuries by P.W-10 Sumathi and her statement recorded under Section 164 Cr.P.C by the Magistrate.
4. Seizure of M.O-1 on the confession leading to discovery after arrest of the accused.
If, the above circumstances cumulatively prove the guilt of the accused unerringly pointing out his complicity without giving any reasonable hypothesis, incompatible with the innocence of the accused, the Court can record conviction of the accused, in view of the principles laid down by the Apex Court in the judgments referred supra. In view of the law declared by the Apex Court, we would like to discuss about the circumstances which the prosecution relied upon.
The first circumstance is, developing illicit contact by the accused - Jayakumar and P.W.10 - Sumathi due to love affair. The evidence of P.Ws. 1,2 and 3 is consistent to establish that they had acquaintance with each other when they were staying in 21 Anantapur and developed love affair between them, so also, illicit contact. Their evidence is also supported by the fact that the love affair was reported to the father of the deceased - Jayakumar and chastised him, but for no use. When the accused who is the brother of P.W-10 - Sumathi, saw both the deceased - Jayakumar and P.W-10 - Sumathi together, he allegedly caused hack injuries with axe - M.O.5. Causing death of Jayakumar and sustaining injuries by P.W.10 - Sumathi is not in dispute. Similarly, the scene of offence, which is situated in the house of P.W.10 is not disputed, so also, the homicidal death of Jayakumar. But only the defence set-up by the accused is that, when Jayakumar entered into the house and molested P.W.10 - Sumathi, she raised cries and neighbours came to save P.W.10 and beat Jayakumar, which resulted in his death. This aspect was spoken by P.W-10, but it is clear from the material that was not substantiated by any amount of evidence. But, her testimony is consistent as to causing death at the scene of offence. Therefore, it is clear from the evidence on record that there was no dispute with regard to affair between Jayakumar and P.W.10 - Sumathi.
The second circumstance relied on by the prosecution is, death of Jayakumar in the house of the accused and P.W.10 - Sumathi. But, there is a dispute with regard to the ownership of the house which is not relevant at this stage. Undisputedly, the death took place in the house where P.W.10 - Sumathi, her mother and allegedly the accused are living together. When the death took place in the house of the accused, it is for the accused to explain as to how the incident took place. But, P.W.10 - Sumathi gave a 22 different version which is contrary to her previous statement recorded by the Magistrate, so also the statement recorded by the police during investigation under Section 161(3) Cr.P.C. Her evidence cannot be believed for the simple reason that, she did not disclose atleast the names of the neighbours who caused injuries on her head and also on the body of Jayakumar. When the neighbours entered into the house and caused such injuries, atleast she could have identified the neighbours and disclosed their names who caused injuries on her body and on the body of Jayakumar. If, really neighours caused injuries on the body of Jayakumar, they ought not to have caused injury on the body of P.W.10. She being sister of the accused resiled from her earlier statement before the police, so also before the Magistrate.
In the cross-examination, P.W.10- Sumathi denied the entire incident but, the statement recorded by the police under Section 161(3) Cr.P.C, is confronted to her. However, about sustaining injury by her is supported by her oral evidence and so also, wound certificate marked as Ex.P-6, coupled with the evidence of Dr. Sayeedanna - P.W.13. Therefore, P.W.10 is a witness supporting the case of the defence, being an unmarried sister of the accused and consequently, her testimony is rejected while accepting that she received injury in the same incident where Jayakumar was murdered. When the incident occurred inside the house of the accused, which is not accessible to any other person, except the accused or the inmates, it is for the defence to explain as to how death took place. But, P.W.10 gave a different version to avoid conviction of her brother which is totally contrary to her 23 previous statement recorded under Section 161(3) Cr.P.C, so also statement recorded by the Magistrate. According to Section 106 of the Evidence Act, when a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. The explanation offered by P.W.10 was not satisfactory, for the reason that, no suggestion was put to P.W.1 that the neighbours came and caused injuries on the body of Jayakumar and P.W.10 - Sumathi. It is an afterthought when P.W.10 entered into the witness box.
In Gajanan Dashrath Kharate v. State of Maharashtra9, their Lordships of Hon'ble Supreme Court have held that the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer explanation. In paragraph no.13, their Lordships have held as under: -
"13. As seen from the evidence, appellant Gajanan and his father Dashrath and mother Mankarnabai were living together. On 7-4-2002, mother of the appellant-accused had gone to another Village Dahigaon. The prosecution has proved presence of the appellant at his home on the night of 7-4-2002. Therefore, the appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case 9 2016 (4) SCC Page 604 24 would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of the occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime."
In Ashok v. State of Maharashtra10 their Lordships of Hon'ble Supreme Court have held that initial burden of proof is on prosecution to adduce sufficient evidence pointing towards guilt of accused. However, in case it is established that accused was last seen together with deceased, prosecution is exempted to prove exact happening of incident as accused himself would have special knowledge of incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Their Lordships have held as under: -
"12. From the study of above stated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non-explanation of death of the deceased, may lead to a presumption of guilt."
10
(2015) 4 SCC Page 393 25 Though P.W-10 made an attempt to make believe the explanation offered by her, it is not plausible and reasonable to find the accused not guilty. Therefore, disbelieving the evidence of P.W-10, an inference can be drawn that the injuries were caused by the accused when he found his sister P.W-10 Sumathi in the company of Jayakumar, even without marriage, in a sudden and grave provocation, took out axe - M.O-5 from the house itself and caused injuries. Therefore, non-explanation or failure to explain satisfactorily as to how Jayakumar and P.W-10 Sumathi received injuries is another strong circumstance which completes links in the chain of circumstances.
The other circumstance relied on by the prosecution is that, noticing the accused running, after he came out from his house, holding the axe M.O-5 with blood stains, while yelling to P.W-1 to go and see as he killed his brother-in-law Jayakumar. If, really he was not the person who caused injuries on the body of Jayakumar and P.W-10 - Sumathi, he would not have come out from his house holding the blood stained axe M.O-5 and run on the road. This fact is substantiated by evidence of P.W.1 and corroborated by evidence of P.Ws. 2 & 3, who directly witnessed while the accused was running on the road holding the blood stained axe M.O-5, from the scene of offence. In the entire cross-examination of PWs.1 to 3, nothing could be elicited by the learned counsel for the Defence before the Trial Court to disprove the strong circumstance relied on by the prosecution i.e. the accused coming out from the scene of offence holding blood stained axe M.O-5, while yelling to P.W-1 to go and see as he killed his brother-in-law Jayakumar. 26 Hence, P.Ws.1 to 3 categorically testified about the accused coming out from the scene of offence holding the blood stained axe M.O-5, while yelling to P.W-1 to go and see as he killed his brother-in-law Jayakumar. This proved circumstance is also directly connecting the accused with the offence.
The last circumstance relied on by the prosecution is, recovery of M.O-5 on the basis of confession leading to discovery after arrest. P.W.16 is the Inspector of Police who along with the mediators B. Raghava Reddy and M. Golla Gopal reached Malyavantham Village bus stop at 9:00 A.M on 01.03.2011, found the accused, surrounded and arrested him at Malyavantham village bus stop in the presence of mediators. He was interrogated in the presence of mediators and reduced the same into writing. Ex.P-7 is the admissible portion of confessional statement. But, in the cross-examination of the mediator, nothing was elicited to discredit and his testimony with regard to the confession made by the accused, leading to discovery of crime weapon M.O-5. Similarly, seizure of M.O-5 under the cover of Ex.P-8 Mediators report is also established by the prosecution beyond reasonable doubt.
Section 27 of the Indian Evidence Act is an exception to Sections 25 and 26. The conditions necessary for invoking the aid of the Section are as follows:
a) there must be a discovery of a fact albeit relevant fact in pursuance of an information received from a person in police custody;
b) the discovery of such fact must be deposed to ;
c) at the time of giving information the accused must be in police custody;27
Then the effect is that so much of the information as relates distinctly to the fact thereby discovered is admissible. What is allowed to be proved is the information or such part thereof as related distinctly to the fact thereby discovered. Discovery evidence is not substantive evidence (vide Dinakar v. State11].
Similarly, in Inspector of Police, Tamil Nadu v. Balaprasanna12, the Apex Court held as follows:
"Law is well settled that the prosecution while relying upon the confessional statement leading to discovery of articles under Section 27 of the Evidence Act, has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts. The scope and ambit of Section 27 of the Evidence Act had been stated and restated in several decisions of the Supreme Court. However, in almost all such decisions reference is made to the observations of the Privy Council in Pulukuri Kotayya vs. Emperor, AIR 1947 PC 67. At one time it was held that the expression 'fact discovered' in the second is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression 'fact discovered' includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kotayya's case. The various requirements of the section can be summed up as follows:-
1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
2) The fact must have been discovered.
3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
4) The person giving the information must be accused of any offence.
5) He must be in the custody of a police officer.
6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.11
AIR 1970 Bombay page 438 12 2009(1) ALD (Crl.)(SC) page 113 28
7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
In view of the principle laid down in the above decision, when a fact is discovered in pursuance of confession leading to discovery is only relevant piece of evidence, but it is not a substantive piece of evidence.
As the evidence of P.W-16 is consistent as to confession leading to discovery and recovery of M.O-5 from the irrigation well, in the garden of Linganadu at 12 noon on 01.03.2011 in the presence of mediators is acceptable, for the simple reason that, throwing of M.O-5 an axe with iron blade and it will not float on the water. Therefore, confession leading to discovery and recovery of M.O-5 is another circumstance to enrope the accused drawing inference that the accused alone is the person who caused injuries on the body of Jayakumar and P.W-10 Sumathi. P.W.10 is no other than the sister of the accused and her statement before the police under Section 161(3) and the statement recorded by the Magistrate, but those statements were recorded under Section 164 Cr.P.C are consistent. But, no evidentiary value can be attached to those statements, as she resiled from her earlier statements and that too, they were recorded in the absence of the accused and the accused had no opportunity to cross-examine the witness. However, the prosecution could establish that the accused was the person who caused injuries on Jayakumar and P.W-10 while they were alone in the house due to love affair.
One of the major contentions raised in this appeal which directly throws light on the probative value of the evidence of the 29 witnesses is the discrepancies pointed out by the learned counsel for the appellant, may at best lead this Court to disbelieve directly witnessing the incident dealing with the second blow with M.O-5 on the head of the deceased, but, not sufficient to acquit the accused.
The alternative submissions made by the learned counsel for the appellant is that, in case the Court believed the evidence of witnesses on record and concludes that the accused is the person who caused injuries and his conviction is to be altered from Section 302 I.P.C to Section 304 Part-II I.P.C, since he had no intention to cause death, as the injuries found on the head of the deceased are only fracture injuries, which could be caused only with blunt side of axe, in a sudden and grave provocation when he suddenly noticed the presence of Jayakumar and P.W-10 - Sumathi due to their love affair and relied on the judgment of the Apex Court in Surinder Kumar v. Union Territory, Chandigarh13, where the Apex Court held that, if on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries out of which only one proves fatal, he would be entitled to the benefit of the exception provided he has not acted cruelly. The Apex Court held that the number of wounds caused during the occurrence in such a situation was not the decisive factor. What was important was that the occurrence had taken place on account of a sudden and unpremeditated fight and the offender must have acted in a fit of anger. Dealing with the provision of Exception 4 to Section 300, the Apex Court observed: 13
(1989) 2 SCC 217 30 "......To invoke this exception four requirements must be satisfied, namely,
(i) it was a sudden fight;
(ii) there was no premeditation;
(iii) the act was done in a heat of passion; and
(iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor, but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly."
To constitute offence punishable under Section 302 I.P.C. The prosecution has to prove that the accused caused injury with an intention to kill him.
Section 300 I.P.C deals with 'Murder' and the following are the circumstances to constitute murder:-
Firstly Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing or-31
Secondly- If it is done with intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly - If it is done with the intention of causing bodily injury to any person and intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death of such injury as aforesaid.
In the present case, when the accused/appellant found P.W-10 Sumathi in the company of Jayakumar in his house, the accused suddenly caused injuries on the head of Jayakumar (deceased) with M.O-5. Till then, the accused had no intention to cause grave injuries or to kill Jayakumar (deceased). In such case, when the accused had no intention to cause death of Jayakumar (deceased), as the accused had no premeditation and came with a weapon, but suddenly in spur of moment, in grave and sudden provocation, suspected and caused injury with M.O-5. Such act would attract exception No.1 of Section 300 and liable to be punished, it would fall within Section 300(1) IPC, though the injuries are on vital part.
The ingredient of intention mentioned under Clause (1) of Section 300 I.P.C give clue in a given case, whether the offence is murder or culpable homicide not amounting to murder. Here, it 32 was not the case of the prosecution at any stage that the accused intentionally killed Jayakumar (deceased). But, the only reason for causing fatal injuries on the head of Jayakumar (deceased) which lead to his death is that accused/appellant found P.W-10 Sumathi in the company of Jayakumar in his house. In such case, the case of prosecution would fall under Part-II of Section 304 I.P.C.
When accused had no pre-meditation to kill deceased or cause any bodily harm or injury to deceased, everything happened on spur of moment, possibility of accused losing self control on seizing the company of deceased with P.W.10 cannot be ruled out and in such case the accused is liable to be convicted under Section 304 Part II instead of Section 302 of I.P.C (vide Yomeshbhai Pranshankar Bhatt v. State of Gujarat14). In the facts of the above decision, the deceased was working in the house of accused as a maid. As she was absent from duties, accused visited her house asking her to rejoin duty and when she refused to join duty, altercation ensued between them. Then, accused allegedly picked can of kerosene lying nearby, poured kerosene on the deceased and lit fire on her body, which resulted in death of servant-maid. The incident occurred only due to utterances between the accused and deceased and not pre-meditated to kill the deceased or cause injury over the body of deceased, thereby the Apex Court concluded that the accused is liable to be convicted for the offence punishable under Section 304 Part-II of Indian Penal Code.
14
2011(2) ALD (Crl.) page 238 (SC) 33 Thus, the view expressed by the Hon'ble Apex Court in Yomeshbhai Pranshankar Bhatt27 referred supra, is a little bit conflicting, but the Larger bench judgment in Gurdial Singh and others29 referred supra, is totally in consonance with the principle laid down in the decision Yomeshbhai Pranshankar Bhatt27. However, the Larger bench judgment is binding on the Courts.
The Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances. To decide whether that the accused caused injuries with an intention to kill deceased, certain 34 guidelines are laid down by the Apex Court in Pulicherla Nagaraju @ Nagaraja v. State of Andhra Pradesh15 and they are as follows:
(i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was
picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was any pre- meditation;
(vii) whether there was any prior enmity or whether the deceased was a stranger;
(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue
advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows.
The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.
15 AIR 2006 SC 3010 35 In the present facts of the case, perusal of nature of incident, weapon used in commission of the offence, it is consistent case from the beginning that, when the accused returned to the scene of offence, he found both Jayakumar and P.W-10 - Sumathi together due to their affair and on seeing the same, due to sudden provocation, picked up the weapon from the house itself and it was not carried along with him, though the accused had no intention to kill Jayakumar. Hence, applying the principles laid down in the above judgment, we find that the accused is guilty for the offence punishable under Section 304 Part-II I.P.C. In such case, the case of prosecution would fall under Part-II of Section 304 IPC.
As per our discussion, the accused caused injury on the body of P.W-10 - Sumathi, which is grave in nature and therefore, he is liable for punishment for the offences punishable under Section 324 I.P.C. The Trial Court rightly convicted the accused for the offence punishable under Section 324 I.P.C, while committing an error in finding the accused guilty for the offence punishable under Section 302 I.P.C and sentencing him erroneously, for the simple reason that the incident was not taken into consideration including the use of axe M.O-5 on its blunt side to cause injury on the head of Jayakumar. Hence, the conviction and sentence passed by the Trial Court against the accused for the offence punishable under Section 302 I.P.C is set-aside, while holding that the accused guilty for the offence punishable under Section 304 Part-II I.P.C and sentenced him to undergo rigorous imprisonment for a period of seven (07) years, while maintaining the fine imposed by the Trial Court, so also the sentence imposed 36 against the accused for the offence punishable under Section 324 I.P.C.
In the result, the criminal appeal is partly allowed, setting aside the conviction and sentence in Sessions Case No.330 of 2011 dated 15.02.2013 passed by the III Additional Sessions Judge (FTC), Anantapur, finding the accused not guilty for the offence punishable under Section 302 I.P.C, while finding him guilty for the offence punishable under Section 304 Part-II I.P.C, sentenced him to undergo rigorous imprisonment for a period of seven (07) years, while maintaining the fine imposed by the Trial Court, so also the sentence imposed against the accused for the offence punishable under Section 324 I.P.C. Both the substantive sentences shall run concurrently. The remand period if any, already undergone by the accused shall be given set-off under Section 428 of Cr.P.C.
Consequently, miscellaneous applications pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY _______________________________ JUSTICE B. KRISHNA MOHAN Dated:21.05.2020 SP