Andhra Pradesh High Court - Amravati
Bisvadora Raja Rao, Visakhapatnam Dt. vs State Of A.P., Rep. By P.P., Hyd on 3 August, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HONOURABLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HONOURABLE SRI JUSTICE M.GANGA RAO
CRIMINAL APPEAL No.866 of 2014
JUDGMENT:- (Per Hon'ble The Acting Chief Justice C.Praveen Kumar) The sole accused in Sessions Case No.36 of 2014 on the file of the Judge, Family Court-cum-III Additional District and Sessions Judge, Vizianagaram is the appellant herein. He was tried for the offences punishable under Sections 302, 307 and 427 of the Indian Penal Code, 1860 (for short, "I.P.C.") for causing death of one Vanka Apparao (hereinafter, referred to as "the deceased") on 23.01.2013 at about 3:45 P.M. in the pan shop of one Mamidi Srinivas (LW.13). Vide judgment, dated 30.06.2014, the learned Judge, Family Court-cum-III Additional District and Sessions Judge convicted the accused for the offences punishable under Sections 302, 307 and 427 I.P.C. and sentenced him to suffer rigorous imprisonment for life and pay fine of Rs.100/-, in default to suffer simple imprisonment for a period of three (3) months for the offence punishable under Section 302 I.P.C., for causing death of the deceased. The accused was also sentenced to undergo rigorous imprisonment for a period of ten years and also pay fine of Rs.100/-, in default, to suffer simple imprisonment for a period of three months for the offence punishable under Section 307 I.P.C., for causing injuries to PWs.2 and 3. The accused was also sentenced to undergo simple imprisonment for a period of one year and also to pay fine of Rs.100/-, in default, to suffer simple imprisonment for a period of three months for the offence punishable under Section 427 I.P.C., for causing damages to the 2 tractor bearing No.AP 5 X 2902. All the substantive sentences of imprisonment were directed to run concurrently. Aggrieved by the same, the present appeal is filed.
2. Brief facts of the case are as under: -
On 23.01.2013 at about 3:30 PM, the accused armed with an axe in his hand, entered into the brick industry, where PW.4 was working along with PWs.5, 6, Gangavarapu Ramu (LW.5), Gangavarapu Ramanamma (LW.6) and Sudikonda Nagamani (LW.9), and hacked two front tyres of the tractor engine bearing No.AP 5 X 2902 belonging to PW.4. PW.4 and others tried to stop the accused, but the accused hurled the axe in all directions and tried to attack PWs.4 to 6, Gangavarapu Ramu (LW.5), Gangavarapu Ramanamma (LW.6) and Sudikonda Nagamani (LW.9). Due to fear, they scattered in all directions. At about 3:45 PM, while PWs.2, 3, 7 and 8 and one Avagadda Lakshmi were proceeding to Rampuram Village in the tractor bearing No.AP 36X 9103 with trailer bearing No.AP 36X 9102 loaded with dry grass, the accused came in their opposite direction and hacked on the right thigh of PW.2, with an axe causing severe bleeding injuries to PW.2. Others jumped from the tractor since the accused tried to attack them also with the axe. PW.7 pelted a stone on the accused so as to prevent him from further attacking PW.2. Thereafter, the accused proceeded to the pan shop of One Mamidi Srinivas (LW.13) and hacked one Vanka Apparao (for short 'the deceased'), who was sitting there, on his neck with an axe in the presence of Mamidi Srinivas (LW.13), Munaganti Nooka Raju (LW.14) and Gidithuri Nagesh (LW.15), on account of which, the deceased 3 sustained severe bleeding injury on his neck and fell down. Thereafter, the accused went to Vyjayanthi School situated near the pan shop of Mamidi Srinivas (LW.13), hacked the right side front and back wheels of school bus bearing No.AP 31 TW 3746. Later he went into the village and beat one Kotamsetty Yerramma (LW.16) with a stick on her left shoulder. When the villagers tried to stop the violent acts of accused, he hurled the axe in all directions. Thereafter, PW.1 caught hold off the accused with the assistance of PW.10, Kakara Nagaraju (LW.17) and Lenka Jagannadham (LW.19) and handed over him to the police along with the axe. Basing on the report of PW.1, PW.19, the then Inspector of Police, Kothavalasa circle registered a case in Crime No.11 of 2013 for the offence punishable under Section 307 IPC and issued First Information Report (Ex.P.11); recorded the statement of P.W.1 and seized M.O.1 in the presence of PW.15 and Golla Gopi Nagaraju (LW.32). He also examined PW.10 and Lenka Jagannadham (LW.19). PWs.3 and 11 shifted the deceased and PW.2 in 108 ambulance to K.G.Hospital, Visakhapatnam for treatment. On the very same day, P.W.19 arrested the accused and recorded his confessional statement in the presence of PW.15 and one Golla Gopi Nagaraj (LW.32) and sent him to judicial custody. On 27.01.2013 at about 4:30 AM, the deceased died while undergoing treatment in K.G.Hospital, Visakhapatnam. Basing on the report (Ex.P.2) lodged by PW.12-brother-in-law of the deceased, informing the death of the deceased, PW.18 added 302 I.P.C. in addition to Section 307 I.P.C. Thereafter, he handed over the investigation to PW.19, who went to King George Hospital, Visakhapatnam and recorded the statements of PWs.2, 3 and 11. 4
He conducted inquest over the dead body of the deceased under Ex.P.3 in the presence of village elders and panchayatdars (LW.26) and PW.13. After completion of inquest, he sent the dead body to postmortem examination. PW.16 conducted postmortem examination on the dead body of the deceased on the same day and issued Ex.P.9 post mortem report, opining that the cause of death of the deceased was due to shock due to infected wound on the face due to chop wound. After completion of investigation, PW.19 filed charge sheet against the accused for the offences punishable under Sections 302, 307 and 427 I.P.C, which was taken on file by the learned Judicial Magistrate of First Class, Kothavalasa, as P.R.C.No.2 of 2014.
On appearance of the accused, copies of the documents were supplied to the accused as required under Section 207 Cr.P.C. Since the offences punishable under Sections 302, 307 and 427 I.P.C. are exclusively triable by the Court of Sessions, the case was committed to the Court of the Sessions at Vizianagaram under Section 209(a) Cr.P.C. The learned Sessions Judge made over the case to the Court of the learned Judge, Family Court-cum-III Additional District and Sessions Judge, Vizianagaram, for trial.
3. Basing on the material available on record, charges under Sections 302, 307 and 427 I.P.C. came to be framed, read over and explained to the accused in Telugu for which, he pleaded not guilty and claimed to be tried.
4. To substantiate its case, the prosecution examined P.Ws.1 to 19 and got marked Exs.P.1 to P.17 and M.Os.1 to 6. After closure of the evidence, the accused was examined under Section 313 5 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, to which he denied. No oral and documentary evidence was adduced on behalf of the accused.
5. Relying upon the circumstances put forth by the prosecution connecting the accused with the crime and the evidence of P.Ws.1 to 10, the learned Judge convicted the accused for the offences under Sections 302, 307 and 427 I.P.C. and sentenced him as referred to above. Challenging the same, the present appeal came to be filed.
6. Sri Surepalli Madhava Rao, learned counsel appearing for the appellant/accused, would contend that the prosecution has failed to prove the motive, preparation, intention and commission of offences by the accused and he was falsely implicated in this case. He further submits that an adverse inference can be drawn from non-examination of LW.13, who was shown as a main witness in the charge sheet. He further contends that though according to the prosecution, the Material Objects contained the blood, the FSL report shows that M.Os. do not contain blood. The other ground raised by the learned counsel for the appellant is that though the accused appears to be of sadistic nature, for the reasons best known to the investigating officer, he never got the accused examined by any medical officer, and hence, prays to set aside the impugned judgment.
7. On the other hand, learned Public Prosecutor would contend that the evidence of witnesses establishes the commission of the offences by the accused and his apprehension along with crime 6 weapon. He would therefore contend that the conviction and sentence imposed by the Sessions Court need no interference and hence, prays to dismiss the appeal.
8. The point for determination is:
"Whether the prosecution proved its case beyond all reasonable doubt against the accused for the offences punishable under Sections 302, 307 and 427 I.P.C. and whether the judgment of the trial Court is correct, legal and proper?"
9. POINT:-
As seen from the record, P.W.2 is an injured witness to the incident. Her evidence discloses that about 1½ years ago, at about 4:00 PM, she took dry-grass on tractor along with P.W.7, who is the driver of the tractor, LW.11-Ramu and LW.3-Eswaramma, from her parents' house at Lenkavanipalem. When they reached Rajapathrunipalem, suddenly the accused came in opposite direction and hacked her with MO.1, on right thigh, due to which she sustained bleeding injury. P.W.7-Mutyalanaidu pelted a stone on the accused to ward off further attacks on PW.2. PW.3- Eswaramma accompanied her in Ambulance to King George Hospital, Visakhapatnam, for treatment. One person of Rajapathrunipalem, who sustained injury on his neck in the hands of the accused, was also shifted to King George Hospital along with her in Ambulance and she found the deceased on the road with injuries. She did not observe anything thereafter, due to fear. She gave statement before the Judicial First Class Magistrate, Srungavarapukota under Section 164 Cr.P.C. and she was also examined by the police in the hospital. Though PW.2 was cross- examined, nothing was elicited from her testimony. She denied the 7 suggestion that she did not see the accused on the date of incident and the accused did not hack her with MO.1. She also denied the suggestion that she did not give statement before the Judicial First Class Magistrate, Srungavarapukota, under Section 164 Cr.P.C. and she gave false evidence at the instigation of Police.
10. PW.3 was another person, who travelled along with PW.2 in the tractor. She stated that on the date of incident, she saw the accused hacking PW.2. On the date of incident, when herself, PW.2-Driver of tractor, PW.7, PW.8 and LW.12-Avagadda Lakshmi, were proceeding to the village of PW.2 from their village, the accused came in opposite direction holding MO.1 on his shoulder and hacked PW.2 with MO.1 on her right thigh. Herself and two others jumped from the tractor. P.W.7-Mutyalanaidu pelted a stone at the accused asking him to leave PW.2. Thereafter, the accused hacked one old man, who was sitting by the side of baddi, on his head and neck, with MO.1 causing bleeding injury. The accused also hacked the tyres of the private bus with MO.1. Large number of people, who gathered there, caught hold of the accused and handed over him to the police. PW.3, PW.2 and the deceased were shifted in 108 Ambulance to King George Hospital, Visakhapatnam for treatment. One day after the incident, the old man died and she was examined by the police in the hospital.
In the cross-examination, she stated that she cannot say the exact distance between her village and Rajapathrunipalem, but it takes half-an-hour time for journey between two villages. She states that she has no acquaintance or disputes with the accused prior to the incident. She has seen him on the date of incident only. She denied the suggestion that the stone pelted by the driver 8 of tractor caused injury to the deceased, but the deceased was not hacked by the accused. She also denied the suggestion that she is deposing false at the instigation of police and that the police never examined her as deposed by her in chief-examination.
11. PWs.7 and 8, who were the persons who travelled along with PW.2, deposed that when they reached near Rajapathrunipalem Village, the accused came in opposite direction with MO.1 in his hand and hacked on right thigh of PW.2. Then PW.7 stopped the tractor suddenly and pelted a stone on the accused. The accused proceeded towards their back side, as such all of them ran away. Thereafter, the accused hacked one old man, who was sitting by the side of pan shop and also hacked the tyres of the school bus with MO.1. Thereafter, police came to the scene, took the accused along with them and shifted PW.2 and the deceased in 108 ambulance to the hospital. P.W.3 accompanied them.
In the cross-examination, PW.7 admits that there are no disputes between the accused and PW.2, PW.3 and himself. He denied the suggestion that PW.2 sustained injury due to her own fault, since PW.2 sat on the tractor bonnet, but was not hacked by the accused. He also denied the suggestion that at the instigation of police, he gave statement before the Judicial First Class Magistrate, Srungavarapukota.
In the cross-examination PW.8 denied the suggestion that he did not travel along with PWs.2, 3 and 7 on the date of incident. The distance between the baddi and tractor is about 400 feet and he was sitting on the load of the tractor. He witnessed the incident sitting on the tractor. He denied the suggestion that he deposed false at the instance of police. He also denied the suggestion that 9 since the parents of PW.2 are residents of his village, he deposed false. He denied the suggestion that the deceased died due to pelting of stone by somebody, but was not hacked by the accused.
12. Coming to the evidence of PW.1, on 23.01.2013 at about 3.00 or 3:30 PM, he received a phone message from his village persons that somebody hacked the passersby. Immediately he rushed to the spot where he found gathering of mob; PW.2 with bleeding injuries, and also the deceased with injuries on his neck. On his phone call, 108 Ambulance came to the spot. PWs.2 and 3 and the deceased were shifted to King George Hospital, Visakhapatnam directly in Ambulance. Then himself and other 40 persons of their village followed the accused. On seeing them, he showed the axe and ran towards the village. After half-an-hour, he along with PW.4, PW.10, and LW.19-Lanka Jagannadham, caught hold the accused and handed him over to the police along with the axe used by him, in the commission of offence. He also lodged Ex.P1 report with the police.
In the cross-examination, he states that on the date of incident, he was present at his house in Rajapathrunipalem. The distance between the place of incident and his village is about 300 meters. He cannot say the name of the person who actually telephoned him. He stated that he did not mention in Ex.P.1 that he telephoned to 108 Ambulance, as stated by him in his chief examination, so also, about the gathering of about 30 to 40 persons at the place of incident by the time of his arrival. He denied the suggestions that he did not give statement before the Judicial First Class Magistrate, Kothavalasa; that he did not participate along with persons, whose names he has stated in his 10 chief examination, to catch the accused and did not take MO.1 from the hands of the accused.
13. PW.4, who is a resident of Kummaribanjeru Village of Kothavalasa Mandal, was examined as eye witness to the incident. He deposed that on the date of incident, the accused came from hill area from western side of his industry armed with MO.1. On seeing the accused, one person, by name Ramanamma-LW.6, escaped and went away due to fear. Then the accused hacked both front tyres of his tractor and also hacked PW.2, who was travelling in the tractor loaded with dry-grass. Thereafter, the accused also hacked one person, who was sitting by the side of the buddy, and found one injury on the neck of old man. Thereafter, PW.2 and deceased were shifted to King George Hospital, Visakhapatnam for treatment. He gave statement before the Judicial First Class Magistrate, Srungavarapukota under Section 164 Cr.P.C. and was examined by the police.
In the cross-examination, he admits that he has no acquaintance with the accused prior to the incident. On the date of incident only he saw the accused. It is true that tribal people carry axes to hills in pursuit of their avocation. He sold away his tractor to the financiers. The distance between his village and Rajapathrunipalem is about 2 kilometres. He denied the suggestion that he did not give any statement under Section 164 Cr.P.C. before the Judicial First Class Magistrate, Srungavarapukota. He also denied the suggestion that he has not owned any tractor and that the accused did not hack both front tyres of his tractor.
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14. PW.5 was doing coolie work under PW.4, who was running brick industry situated in Rajapatruhnipalem. She was also examined as an eye witness to the incident and her evidence corroborates the evidence of PW.4.
15. The evidence of PW.9, who was working as a Teacher in Vyjayanti High School of Rajapatrunipalem, shows that on the date of incident i.e., on 23.01.2013 at about 3:30 or 4:00 PM, the accused armed with MO.1, hacked both the front tyres and rear tyres of the school bus. On seeing the same, they locked the doors of the school and called all the students. They protected themselves by locking the gate and they opened the school gates only after accused left the place. It is further states that when PW.5 came into the road, he noticed one person fallen by the side of the buddy with injuries. Later, the villagers chased the accused, apprehended him and handed him over to police.
In the cross-examination, he states that he has no disputes or differences with the accused prior to the incident. He denied the suggestion that he did not state to the police that after noticing the accused, who armed with MO.1, they locked the gate of the school. The distance between the person, who had fallen by the side of the buddy, and to the school is about 20 feet. He denied the suggestion that at the instigation of PWs.1 and 2, he is deposing falsely.
16. From the evidence above, it is clear that nearly seven out of nine witnesses spoke about involvement of the accused in causing injuries to PW.2 and attacking the deceased and thereafter, causing damage to the school bus. In order to discard the 12 testimony of all witnesses, the counsel contend that there is no motive for the accused to commit the alleged offences. Even as per the evidence of witnesses, the accused armed with MO.1 initially attacked PW.2 and caused injuries in her right thigh and when people started pelting stones, the accused ran towards pan shop hacked on old man and thereafter, proceeded towards a school bus and caused damage to the bus. It is not the case of the accused that at any point of time, he was suffering with any ailment. No defence has been taken in that regard. But the counsel would contend that the police should have made every effort to find out the mental condition of the accused. When it is not the case of the accused that he was suffering from any ailment at any point of time, the question of taking him to a doctor by investigating officer does not arise. He being a man with normal sense indulged in these acts. Hence, the contention of learned counsel for the appellant/accused that the prosecution failed to establish motive and that the police did not take the accused to doctor cannot be accepted. Insofar as non-examination of LW.13 is concerned, it is to be noted that when nine eye witnesses to the incident speak about the incident, non- examination of one witness would not be fatal to the prosecution case. Further it is not necessary that every person, who saw the incident, should be examined. For the reasons stated above, this Court is inclined to believe the evidence of PWs.1 to 9 whose evidence remained unshattered in the cross- examination. Having regard to the above circumstances, we feel the argument of the learned counsel for the appellant/accused that real culprit was left out and the accused has been implicated in this case cannot be accepted. Insofar as the material object 13 MO.1 is concerned, the said discrepancy may not be of any consequence for the reason that the villagers came there, surrounded the accused and then apprehended him with MO.1- axe.
17. From the foregoing discussion, we feel that the prosecution proved its case beyond all reasonable doubts against the accused for the offences punishable under Sections 302, 307 and 427 I.P.C. and as such, the judgment of the trial Court warrants no interference.
18. Accordingly, the Criminal Appeal is dismissed confirming the conviction and sentence in the judgment, dated 30.06.2014, passed in Sessions Case No.36 of 2014 by the Judge, Family Court-cum-III Additional District and Sessions Judge at Vizianagaram.
Consequently, Miscellaneous Petitions pending, if any, in this Criminal Appeal shall stand closed.
_______________________________________________ ACTING CHIEF JUSTICE C.PRAVEEN KUMAR _________________________ JUSTICE M.GANGA RAO Date: 03.08.2019 Ivd 14 THE HONOURABLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE M.GANGA RAO CRIMINAL APPEAL No.866 of 2014 Date: 03.08.2019 Ivd