Andhra Pradesh High Court - Amravati
Shaik Abdulla, Guntur Dt., vs State Of Ap., Rep. Pp., on 12 March, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, Battu Devanand
1
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE BATTU DEVANAND
Criminal Appeal No. 575 of 2014
JUDGMENT:(Per Hon'ble The Acting Chief Justice C.Praveen Kumar)
1) The sole accused in Sessions Case No. 19/S/2012 is the appellant herein. He was tried for the offence punishable under Section 302 IPC and under Sections 3(2)(v) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989. By its Judgment, dated 19.05.2014, the learned Special Sessions Judge-cum-IV Additional District Judge, Guntur, convicted the accused under both the counts and sentenced him to suffer imprisonment for life and also to pay a fine of Rs.2,000/-, in default, to suffer simple imprisonment for a period of three months. Challenging the same, the present appeal came to be filed.
2) The gravamen of the charge against the accused is that, on 20.11.2011 at about 10.30 AM, at 14th lane of SRKT Colony, Narasaraopet, the accused caused the death of Mogili Bullemmayi, d/o. Venkateswarlu ['deceased'] by cutting her throat with a blade.
3) The facts, as culled out, from the evidence of prosecution witnesses are as under:
i) PW1 & PW3 are the sisters of the deceased, while PW2 is mother of the deceased. PW4 is the Uncle of the deceased. All the family members were residing in 15th line in Narasaraopet Town. The deceased married one Subba Rao, which was a love 2 marriage. After marriage, the deceased used to reside with PW1 and others from two years prior to her death as some matrimonial disputes occurred between the deceased and her husband. It is said that, PW1 along with her sister [deceased] used to go to a spinning mill situated in Kavuru village, to eke out their livelihood. It is said that, the deceased developed illicit intimacy with the accused and that the accused used to follow the deceased while she was going to coolie work. The accused asked the deceased several times that he wants to talk with her, but the deceased refused the same as he was infected with AIDS. It is said that, a week prior to the date of incident, the deceased was beaten by accused, however, no report was given.
ii) On 20.11.2011 i.e. on Sunday, while PW1 and deceased were in the house, they noticed the accused rambling around the house. At about 10.30 AM, the deceased went outside to get curd. Immediately, the accused followed the deceased. PW1 noticed the same; came out of the house and saw the accused following the deceased. She informed the same to the parents of the deceased. Accordingly, all of them came out to their house and followed the deceased. They noticed the accused beating the deceased and the deceased resisting his acts. At that time PW1 raised cries. On hearing the same and seeing PW1 to PW4 following the deceased, the accused cut the throat of the deceased with a blade. The said incident was witnessed by PW1 to PW4. After cutting throat of the deceased, the 3 accused threw the blade and ran away from the scene. Though PW1 and others tried to catch hold of the accused, but, he escaped from the scene. Thereafter, they took the deceased to the house and tried to prevent oozing of the blood from the throat by tying a towel, but, it proved fatal. Immediately, they shifted the deceased to Government Hospital Narsaraopet where the doctor advised to shift the deceased to Government General Hospital, Guntur, as her condition was critical.
Pursuant to the advise of the doctor, the deceased was shifted to Government General Hospital, Guntur, in ambulance, but the doctor declared her brought dead.
iii) Basing on a report given by PW1, PW13- S.H.O. of Narsaraopet Police Station registered a case in Cr. No. 177 of 2011 under Section 302 IPC. Ex. P13 is the First Information Report. The FIR is said to have reached the Magistrate at 9.30 PM on the very same day. At 2.00 PM, PW14 - the Inspector of Police received a copy of the FIR and took up investigation. He visited the scene of offence along with mediators and prepared a panchanama of the scene of offence and also rough sketch of the scene vide Ex.P14 the rough sketch and Ex.P6 the scene observation report. After preparing the rough sketch and also the scene of offence observation report, he took photographs of the scene, which are placed on record as Ex.P2. After completing the said proceedings, he handed over the file further investigation of the case to DSP as it has come out on record that the victim belongs to SC community. Hence, PW15- 4 DSP took up further investigation of the matter. He visited the scene of offence along with C.I. of Police, drafted scene of offence panchanama as Ex.P14. Later, he visited Government General Mortuary and in the presence of independent witnesses conducted inquest over the dead body of the deceased. Ex.P7 is the inquest report. During inquest, he examined PW1 to PW9 and recorded their statements. Thereafter, he sent the dead body for post-mortem examination.
iv) PW12- the Civil Assistant Surgeon, Department of Forensic, GMC, Guntur, conducted autopsy over the dead body of the deceased and issued Ex.P12 post-mortem certificate. According to him, the cause of death was due to cutting of major blood vessels as a result of cut throat injury.
v) On 26.11.2011, PW15 arrested the accused in the presence of PW10 and another and recorded the confessional statement of accused. Ex.P8 is the relevant portion of the said statement. After collecting the RFSL report and post-mortem report, the successor of PW15 filed the charge-sheet.
vi) On appearance of the accused, copies of all documents as required under Section 207 Cr.P.C. were furnished to him.
vii) On appearance of the accused, charge under Section 302 IPC came to be framed, read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. 5
viii) In support of its case, the prosecution examined PW1 to PW15 witnesses and got marked Ex.P1 to Ex.P19, beside marking MOs. 1 to 8. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied. The accused got examined DW1 and DW2 in support of his plea and got marked Ex.D1 attested copy of the Register.
ix) Believing the evidence of PW1 to PW4, the learned Special Sessions Judge, convicted the accused. Challenging the same, the present appeal came to be filed.
4) Sri. K. Srinivasa, learned counsel for the Appellant would contend that, even accepting the entire case of the prosecution to be true, no offence punishable under Section 302 IPC and under Sections 3(2)(v) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 is made out. He would submit that, since the accused was not armed with a weapon at the time of the incident, it cannot be said that, he came there with an intention to do away with the deceased. He further submit that, the incident in question is in view of altercation between both of them and as such, it cannot be said that, the accused has any knowledge or intention, and that the case falls within exception IV of Section 300 IPC. However, he does not dispute the presence of the accused at the scene of offence.
5) On the other hand, Sri. Dushyant Reddy, learned Additional Public Prosecutor would contend that, the facts in issue show that 6 the accused had intention to cause death more particularly by the usage of the weapon and the place where the injury was caused, namely, on the throat. Therefore, it is his plea that question of altering the Section from Section 302 IPC to 304 Part II IPC as urged by the counsel for the Appellant cannot be accepted.
6) The point that arises for consideration is, "whether Accused committed offence punishable under Section 302 IPC and under Sections 3(2)(v) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989?"
7) As seen from the record, the prosecution examined PW1 to PW4 as direct witnesses to the incident. In our view, their presence at the scene and witnessing the incident cannot be doubted. In-fact, the counsel for the appellant also did not dispute the presence of PW1 to PW4 at the scene and they witnessing the incident, but, his only plea is that, the accused never had intention or knowledge to kill the deceased and that the incident was preceded by a quarrel.
8) To establish that, the accused had a motive to cause the death of the deceased and pursuant there to he killed the deceased, it would be useful to refer to the evidence of the eye witnesses.
9) PW1 is the younger sister of the deceased. According to her, the deceased married one Subba Rao and due to differences she used to stay with them. Both of them used to go to Kavuru village and work in a spinning mill to eke out their livelihood. While things stood thus, the deceased developed illicit intimacy with the accused.
As the accused suspected that deceased was avoiding him to meet, 7 he followed the deceased everyday and insisted her to meet him, to which the deceased refused. About a week prior to the date of incident, the accused beat the deceased causing injuries, but, however, no report about the said incident was given to the police.
10) Be that as it may, on 20.11.2011 i.e. on Sunday, while PW1 and deceased were in the house, at about 10.30 AM, the deceased went out to get curd. The accused followed the deceased. PW1 noticed the same and informed the said fact to her parents and also followed her sister. After reaching some distance, she noticed the accused beating the deceased and the deceased was resisting to his acts. Out of fear PW1 raised cries. Hearing the same, the accused cut the throat of the deceased with a blade. At that time, PW3 and PW4 and others were also behind PW1 watching the incident. All the witnesses saw the accused cutting the throat of deceased and thereafter running away from the scene. The evidence of PW1 further disclosed that, seven months after the death of the deceased, the accused and one Seshu came to their house and high handedly entered into her house and beat her mother with a brick demanding them to come for a compromise. It is said that, he also removed clothes of her mother, as a result of which, she sustained three stitches on her left hand. She lodged a report before the police, which came to be registered as a case in Crime No. 127/2012 for the offence punishable under Section 324 r/w. 34 IPC and under Sections 3(1)(x) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989, which is still pending. 8
11) The evidence on record shows that, the accused along with his men, namely, Seshu and Nagaraju went to the house of one Zilani Saheb and beat him indiscriminately on the pretext that he is guiding PW1. In respect of the said incident, a case in Crime No. 11/2013 came to be registered for the offence punishable under Section 392 IPC. PW1 was cross-examined at length, but, in our view, nothing useful came to be elicited to discredit her version. On the other hand, it has been elicited that nobody came to their rescue as the accused was a rowdy sheeter.
12) PW2 is the mother of the deceased. According to her, she is the second wife to her husband after the death of his first wife. She in her evidence deposed that, the deceased was married to one Subba Rao, which was a love marriage. Later, differences arose between the deceased and her husband, as a result of which, the deceased started staying in their house. She further states that, prior to the offence in question, twice the accused beat the deceased. The deceased informed about the said fact to them two days prior to the said incident. According to her, on 20.11.2011 when the deceased went to get curds outside their house, the accused followed the deceased. Seeing the same, her family members including PW2 came out and saw the accused cutting the throat of the deceased with a blade and then running away from the place. Though, PW2 and PW3 tried to catch him, he escaped from their hands. Thereafter, the deceased was shifted to their house to prevent oozing of the blood by placing a cloth on her neck, but as it was of no use, they shifted the deceased to Government Hospital, Narasaraopet and on the advise of 9 the doctor, they shifted her to GGH, Guntur, where the doctors declared her brought dead. She also speaks about the accused beating her, which lead to registration of a case in Crime No. 127/2012 for the offence punishable under Section 324 r/w. 34 IPC and Sections 3(1)(x) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989. She was also cross-examined, but, nothing useful came to be elicited insofar as the incident is concerned. She admits that, she did not state to the police in her 161 statement that accused beat the deceased twice prior to her murder.
13) PW3 is another sister of the deceased and PW1. Her evidence is in line with PW1 evidence. She in her evidence deposed that, the deceased developed illegal intimacy with the accused, but, she curtailed her relationship as the accused got affected with AIDS. As such, the accused beat her. On 20.11.2011 at about 10.30 AM, the deceased went outside to bring curd. At that time, she and her husband were returning from market to their house and noticed the accused altercating with the deceased. They also witnessed the accused cutting the throat of the deceased with a blade and then running away from that place, leaving the blade at the scene. She also speaks about the accused beating her mother after six month, which lead to the registration of a crime. She was also subjected to cross-examination, but, in our view, nothing useful is elicited to disbelieve her version.
14) PW4 is a close relative of the deceased. She also speaks about the relationship between the accused and the deceased and about the incident on 20.11.2011. It may not be necessary for us to extract 10 the evidence of PW4, as her evidence is in line with that of PW1 to PW3. From the evidence of all these witnesses, what emerges out is that the accused caused the death of the deceased by cutting her throat with a blade.
15) As stated earlier, the only plea taken by the learned counsel for the appellant is that, the accused neither had any intention nor knowledge to attack the deceased, more so, when there is no motive for him to cause the death. He further pleads that the accused never came armed with any weapon. According to him, in view of the altercation between both of them, the incident took place. He placed reliance of a decision of the Hon'ble Apex Court in Felix Ambrose D' Souza v. State of Karnataka1 in support of his plea.
16) It is to be noted here that the evidence of PW1 to PW4 amply establishes the element of motive for the accused to cause death of the deceased. As observed by us earlier, though, the deceased developed intimacy with the accused, but, she was refusing to meet the accused as he was infected with AIDS. Because of which, she was refusing to meet the accused, but, the accused was insisting her to meet him. A week prior to the incident, the accused is said to have beat the deceased indiscriminately, which fact is consistent in the evidence of PW1, PW2 and PW4. Therefore, the argument that there was no reason or motive for the accused to attack the deceased cannot be accepted.
1 2003 (1) ALD Cri 630 11
17) Coming to the incident proper, on the date of incident at about 10.30 AM, the deceased went outside to get curds, the accused followed her. Seeing the same, PW1 also came out of house and followed him and informed about the same to her parents and sister, as well, who also came out. PW1 noticed the accused beating the deceased and when PW1 raised crimes, the accused cut deceased throat, threw the blade at the scene and ran away. Their effort to catch the accused proved futile. This version of incident is spoken to by all the witnesses in one voice and the same is consistent.
18) Taking a cue from the evidence of PW3 that she noticed the accused altercating the deceased, the learned counsel for the appellant would contend that, in the course of altercation, the accused slit the throat of the deceased. But, it is to be noticed that, when the evidence of PW3 is tested with the evidence of PW1, PW2 and PW4, it is evident that the accused was beating the deceased and the deceased was resisting the same. Referring to this part of the incident, the court must have used the word 'altercation' while recording the evidence. But, this cannot be an altercation between two of them warranting alteration of section of law invoking exception IV of Section 300 IPC.
19) Coming to the incident proper, it is to be noticed that, it is not the case of the prosecution that the deceased picked up a blade which was lying at the scene and with that blade he slit the throat of the deceased. It is a case where the deceased was carrying a blade and with that sharp edge blade, he cut the throat, as a result of which, the major blood vessels got cut leading to her death. 12 Therefore, the argument of the learned counsel for the appellant that the accused was not carrying any weapon at all, since, he never displayed it may not be correct. No explanation is forthcoming as to why he was carrying the blade.
20) It is not his case that, the blade is not a dangerous weapon. The evidence of panch witnesses show that, it was sharp on all sides. Therefore, it is also to be noted here that, prior to cutting the throat of the deceased, the accused beat the deceased and thereafter cut the throat of the deceased. So, it cannot be said that, he had no intention or knowledge that such act would cause the death of the deceased.
21) At this stage, the learned counsel for the appellant pressed into service of the judgment of the Hon'ble Apex Court in D'Souza's case to show that in a given set of circumstances, conviction under Section 302 IPC would be improper. The facts in the said case are totally different. It was a case where there were disputes between both the parties. In the altercation which was said to have followed because both sides actually started challenging the right of the other to lock the store room and tried to break the lock of the other, a tussle ensued between them resulting in physical manhandling and in the process the appellant is said to have wielded kathi by inflicting cuts on the neck of the deceased. Having regard to the manner in which the incident took place, the court felt that there was no intention to cause death. Accordingly, altered the conviction under Section 302 IPC to Section 304 Part II IPC. 13
22) The facts in the said case clearly indicate that there was a tussle and altercation between both the groups while trying to break open the lock by the deceased with a hammer and the accused physically preventing the deceased from doing so. In that process, the incident took place. Therefore, the facts in the said case are totally different from the case on hand. As seen from the record, all the four witnesses categorically deposed about the incident and the manner in which the accused caused the death of the deceased. In- fact, as stated earlier, there was quarrel before the incident. The evidence show that the deceased was resisting the manhandling and attack by the accused. Hence, we see no ground to interfere with the conviction and sentence imposed by the trial court.
23) In the result the appeal fails and it is accordingly dismissed, confirming the conviction and sentence passed in Sessions Case No. 19/S/2012 on the Special Sessions Judge-cum-IV Additional District Judge, Guntur.
24) Consequently, miscellaneous petitions pending, if any, shall stand closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR ______________________________ JUSTICE BATTU DEVANAND Date: 12.03.2020 SM.
14
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE BATTU DEVANAND Criminal Appeal No. 575 of 2014 (Per Hon'ble Sri Justice C.Praveen Kumar) Date: 12.03.2020 SM.