Andhra Pradesh High Court - Amravati
Gallela Babu Rao A1 Another vs The State Of A.P., on 12 July, 2019
Author: U.Durga Prasad Rao
Bench: U.Durga Prasad Rao, M.Ganga Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
AND
HON'BLE SRI JUSTICE M.GANGA RAO
CRIMINAL APPEAL No.651 of 2014
JUDGMENT:(Per Hon'ble Sri Justice U.Durga Prasad Rao) This Criminal Appeal is preferred by A1 & A2 aggrieved by the judgment, dated 16.04.2014, in S.C.No.102 of 2013 passed by the learned VII Additional Sessions Judge (Fast Track Court), Visakhapatnam (For short, 'the trial Court'), convicting them for the offence punishable under Section 302 r/w 34 IPC and sentencing them to undergo imprisonment for life besides paying a fine of Rs.500/- each.
2. The facts leading to file the instant Criminal Appeal are stated as under:
(i) PW1-complainant is the wife of deceased and they are residents of Pedaguda Village, Munchingput Mandal, and they are Scheduled Tribes. A1 & A2 are husband and wife and they are also residents of same village. According to the prosecution, there were disputes between deceased and accused on the ground that the deceased was practicing witchcraft on children and cattle and killing them.
(ii) While so, on 15.12.2012 at about 11.00 hours while PW1 was proceeding towards her fields to graze her cattle, she heard the shouts of her husband that the accused were killing him and he cried to save him. She immediately returned back to the house and observed that UDPR,J & MGR,J 2 Crl.A. No.651 of 2014 A2 caught hold the legs of the deceased and A1 slit the neck of the deceased on both sides with M.O.1-sickle and thereafter they hit him with stones and on seeing PW1 they escaped along with the sickle towards hill situated in the backside of their house. PW1 found her husband died instantaneously. On that evening, after the villagers returned from shandy, having informed them, PW1 went to Munchingput Police Station and gave Ex.P6-report which was registered by PW7 as a case in Cr.No.39/2012 under Section 302 r/w 34 IPC and issued Ex.P7-F.I.R. PW.8-Inspector of Police, Paderu Circle, conducted investigation. On 16.12.2012, he proceeded to the scene of offence and secured mediators viz., PW5 and LW9 and observed the scene of offence and drafted the rough sketch-Ex.P8 and seized M.O.Nos.2 & 9-stones and also M.O.Nos.7 & 8-controlled earth and blood stained earth at the scene of offence and thereafter, he conducted inquest over the dead body in the presence of the mediators viz., PW5, LW9 and some others. He prepared Ex.P2-Inquest report.
After completion of inquest he sent the dead body to Area Hospital, Paderu, where PW6 conducted the Post Mortem examination and issued Ex.P5-Post Mortem Certificate wherein he opined that the death was due to Cardio respiratory arrest due to secondary to haemorrhage shock due to multiple injuries. During the course of further investigation, the Investigating Officer arrested A1 on 17.12.2012 and on his revelation seized crime weapon and M.O.1- blood stained sickle and M.O.6-blood stained shirt from the bushes UDPR,J & MGR,J 3 Crl.A. No.651 of 2014 and the Investigating Officer arrested A2 on 21.01.2013. After completion of investigation, he filed the charge sheet.
(iii) On appearance of the accused, the trial Court framed charge under Section 302 r/w 34 IPC against them. Both the accused denied the charge and claimed to be tried. During trial, PWs 1 to 8 were examined and exhibits P1 to P10 and M.O.Nos.1 to 9 were marked on behalf of the prosecution.
(iv) During Section 313 Cr.P.C. examination, the accused denied the incriminating material found against them in the evidence of prosecution witnesses. The accused did not examine any defence witnesses.
(v) The defence of the accused is one of the total denial of the offence. They suggested the prosecution witnesses that the Naxalites might have killed the deceased, but they were falsely implicated in the case. The trial Court, on appreciation of the oral and documentary evidence, has come to the conclusion that PWs 1 to 3 are the direct eye witnesses to the incident and their evidence was trustworthy to prove the guilt of the accused. Their ocular evidence was corroborated by the medical evidence. The trial Court further observed that the minor discrepancies in the evidence of PW1 do not cut across the case of prosecution which is otherwise established beyond reasonable doubt. The trial Court ultimately convicted and sentenced the accused as stated supra.
Hence, the Criminal Appeal.
UDPR,J & MGR,J 4 Crl.A. No.651 of 2014
3. Heard the arguments of Smt. B.Vasantha Lakshmi, learned legal aid counsel for the appellants, and the learned Public Prosecutor representing the respondent State.
4. The points for determination are as under:
(1) Whether the deceased met with homicidal death at his house on 15.12.2012?
(2) If Point No.1 is held in affirmative, whether the accused are responsible for his death and whether the prosecution could establish their guilt beyond all reasonable doubt?
(3) To what relief?
5. POINT No.1: The evidence of PWs 1 to 3-eye witnesses, PW5- Inquest Witness, PW6-Doctor, who conducted Post Mortem examination, and the documentary evidence i.e., Ex.P2-Inquest Report and Ex.P5-Post Mortem Certificate would all cumulatively establish that the death of deceased was a homicidal one. PW6, who conducted the Post Mortem on the dead body of the deceased, found the following ante mortem injuries:
(i) A deep lacerated injury of size 12 x 6 x 8 cm present at the nape of the neck, dark red in color, blood coming out from that injury.
(ii) Crush injury of size 20 x 15 cm present over the Forehead region, fracture of the frontal bone, B/L parietal and B/L temporal bones occur.
(iii) Abrasion injury of size 5 x 2 cm present at the right side Anterior chest region.
(iv) Lacerated injury of size 4 x 2 x 2 cm present at the left hand index finger.
UDPR,J & MGR,J 5 Crl.A. No.651 of 2014
(v) Lacerated injury of size 6 x 4 x 2 cm present at the left hand dorsal aspect exposing the bones also present.
(vi) Lacerated injury of size 4 x 2 x 1 cm present at the right hand dorsal aspect.
(vii) Deep contusion injury of size 8 x 4 cm present at the left side Ant. chest region on opening the skin fracture to the 3rd, 4th and 5th ribs present, on opening the rib cage injury to the left pleural cavity, multiple small lacerated injuries to the left lung present.
(viii) Fracture to the cervical spine C5 & C6 present. He opined that the death was due to cardio respiratory arrest secondary to hemorrhagic shock due to multiple injuries and accordingly, issued Ex.P5-Post Mortem certificate.
6. As can be seen from the injuries, the deceased suffered a deep lacerated injury at the nape of the neck. Besides, he suffered fracture of frontal bone, parietal and temporal bones, fracture of hyoid, fourth and fifth ribs and fracture to cervical spine C5 & C6. Besides he also sustained injury to the left pleural cavity and multiple small lacerated injuries to the left lung. These injuries, even in the absence of the evidence of eye witnesses, can be understood that the resultant death was due to fatal blows. Hence, one can predicate that the death which was resulted due to these injuries was a homicidal one and whoever caused those injuries must have inflicted them on the deceased to do away with his life.
7. As rightly observed by the trial Court the accused too are not disputing the death of deceased as homicide, though their defence plea is that they were innocent and falsely implicated in this case.
UDPR,J & MGR,J 6 Crl.A. No.651 of 2014 Therefore, the prosecution has amply established the homicidal death of the deceased. It has now to be seen in the point infra as to how far both the accused are responsible for the murder of the deceased.
8. POINT No.2: The murderous assault on deceased took place on 15.12.2013 at about 11:00 hours at the house of the deceased in Pedaguda village when, according to prosecution, A1 and A2, who are the husband and wife, attacked him on the ground that the deceased was practicing sorcery or witchcraft. It is alleged that while A2 caught hold the legs of deceased, A1 slit the throat of deceased with M.O.1 - sickle and thereafter both A1 and A2 hit on the head of the deceased with boulders causing his instantaneous death. The accused totally denied the above allegations.
9. The prosecution to establish its case mainly relied upon on the eye witness account of P.Ws.1 to 3. Hence, their evidence needs a careful scrutiny. PW.1 is the wife of deceased. Her version, in the chief-examination, is that on the date of the incident in the morning at about 11:00 hours while she was going to graze their cattle in the fields situated by the side of her house, she heard huge cries of her husband that 'Rambha ra, Gallela Babu Rao and Gallela Kanthamma nanu champesthunnaru' (Rambha come! A1 and A2 are killing me). On hearing cries, when she reached the threshold of her house she witnessed A1 cutting the throat of her husband with sickle and thereafter A1 hit the deceased on his head with big stone while A2 caught hold the legs of the deceased and later both A1 and A2 escaped UDPR,J & MGR,J 7 Crl.A. No.651 of 2014 towards the hill situated on the back of their house. At the time A1 was holding crime weapon i.e., sickle. Along with her, PW.2 who is her sister and another male person also witnessed the incident.
(a) Speaking on the motive for the accused to kill her husband, she deposed that prior to the incident, A1 used to raise disputes on several occasions with her husband suspecting that her husband killed his cattle and also the daughter of his brother Prasad by practicing witchcraft. She stated that she gave complaint against both the accused. She identified crime weapon and the clothes worn by her husband at the time of incident, which are M.Os.1 to 5. She also identified the shirt of the accused as M.O.6. This is her evidence in the chief.
(b) In an intense cross-examination, she stated that she was illiterate, she cannot give the date of offence but it was on a Saturday. There were number of residential houses around the scene of offence but she volunteered, at the time of offence, the residents of the locality went to the fair. Regarding lodging of the complaint, she stated the complaint was drafted by the concerned Sub-Inspector of Police in the police station and she does not know the recitals therein. She again added that the complaint was drafted on her dictation. She alone went to police station to submit the complaint. She stated that a panchayat was held in her village after submitting the police complaint. To a specific suggestion that A1 was arrested on the date of panchayat itself, she replied that A1 and A2 surrendered themselves in the police UDPR,J & MGR,J 8 Crl.A. No.651 of 2014 station. She further stated in her cross-examination that no complaint was given against A1 when he raised a dispute with the deceased alleging that the deceased was practising witchcraft. After submission of complaint, the Police did not take her and her relatives to police station. She again stated that the police reached the village, took her to police station and obtained her thumb impression. She stated that inquest was conducted by police in their village. The doctors conducted post-mortem examination over the dead body of the deceased at the scene of offence itself. She staunchly denied the suggestion that while Naxalites killed the deceased, out of fear, a false report is given against accused in consultation with the villagers during panchayat.
10. (a) P.W.2 is a resident of Pedaguda Village and she is the elder sister of the deceased. Her evidence is that her house is situated at the lower level than the road and it would take about five minutes to reach the house of the deceased from her house by foot. Regarding the incident, she deposed that on that day P.W.4 came to her house and informed that A1 was disputing with the deceased and then she immediately rushed to the house of the deceased and witnessed A1 cutting the throat of the deceased with M.O.1 sickle. He also hit the deceased with the M.O.2 stone and at that time, A2 caught hold the legs of the deceased. She further stated that P.W.1 also witnessed the incident and besides them another person, whom she cannot identify due to shock, also witnessed the incident. Seeing the incident, they UDPR,J & MGR,J 9 Crl.A. No.651 of 2014 raised shouts. On hearing it, A1 along with M.O.1 sickle and A2 escaped from the scene.
(b) Regarding motive aspect, she deposed that prior to the incident, A1 used to raise disputes on several occasions with the deceased suspecting that the deceased was practicing witchcraft and that the deceased was responsible for the death of the daughter of A1's brother. She stated the offence took place on Saturday.
(c) In the cross-examination, she stated that P.W.4 went to her house at about 10 O'clock and informed about the altercation between deceased and A1 and immediately she rushed to the scene of offence. She admitted that she did not explain the size or descriptive particulars of M.O.1 sickle when she was examined by the police on Sunday, but she narrated about the size and colour of M.O.2 stone. Regarding the complaint, she stated that it was drafted by one of their village elders after due consultation with the panchayat elders and the same was submitted to police on Saturday itself. She admitted that she did not mention about the date and day on which the dispute took place between accused and deceased regarding his practicing witchcrafts and no police complaint was lodged in connection with that dispute. She denied the suggestion that Naxalites murdered the deceased and a false case was foisted against the accused.
11. P.W.3 is a resident of Bapanaput Village and deposed that the deceased was his cousin brother and he died about one year three months prior to his evidence being killed by the accused. He stated UDPR,J & MGR,J 10 Crl.A. No.651 of 2014 that he used to visit the house of the deceased on every Saturday and on the date of incident, being Saturday, he went to the house of the deceased and after having chit chat with the deceased, he was returning back. At that time, he heard the cries of P.W.2 and on hearing the same, he returned to the house of the deceased along with P.W.1 and witnessed A1 cutting the throat of deceased with M.O.1 sickle and thereafter, A1 hit the deceased with M.O.2 stone on his head while A2 caught hold the legs of the deceased. On seeing them, both the accused took to heels. He further stated that he came to know that there were previous disputes between A1 and deceased. In the cross-examination he admitted that he never went to the police station in connection with the present case and police did not record his statement. Denied the suggestion that he did not witness the incident and deposing false hold.
12. (a) P.W.4 is a resident of Pedaguda Village and doing Kirana business. His deposition is that the deceased and accused belong to his village and deceased died about one year eight months prior to his evidence. The date of incident was Saturday. As usual, he was going to weekly shandy held at Munchingput to purchase provisions to his kirana shop and in that process, he was crossing the house of the deceased. At that time, he observed an altercation going on in the house of the deceased. Immediately, he rushed to the house of P.W.2 and informed her about the altercation that was going on in between the deceased and A1 and went away. While he returned to the village UDPR,J & MGR,J 11 Crl.A. No.651 of 2014 from the shandy in the evening he came to know that A1 killed the deceased.
(b) In the cross-examination, he stated that he used to purchase the provisions in the weekly shandy and sell in the kirana shop for profit. He admitted that customers used to reach shandy by 06.00 a.m. to purchase required articles from the agriculturists. He stated that after returning from the shandy to the village, he did not enquire anyone in the village as to what happened. He denied the suggestion that he did not inform anything to P.W.2 and he was deposing falsehood at the instance of the police.
13. Thus, prosecution projected P.Ws.1 to 3 as eye witnesses and P.W.4 as informant to P.W.2. Hence, their evidence needs a careful scrutiny and analysis in the light of the arguments of learned counsel for appellant.
14. Firstly, it is argued that except the interested witnesses the prosecution did not examine any independent witness to prove its case inspite of the fact that the incident took place in the broad day light on the street in front of the house of the deceased. Hence, the prosecution case must be thrown away.
15. (a) Regarding the evidence of P.W.1, it is argued that there are many inconsistencies and discrepancies in her evidence. Speaking to them, it is pointed out that in Ex.P.6 complaint lodged by P.W.1, she did not mention that her husband while crying out specifically pronounced the names of the accused as killing him except stating that UDPR,J & MGR,J 12 Crl.A. No.651 of 2014 he was being killed. However, when come to her chief-examination, learned counsel pointed out, P.W.1 stated as if her husband cried out that Gallela Babu Rao (A1) and Gallela Kanthamma (A2) were killing him. Learned counsel vehemently argued that this is a clear case of improvisation in the evidence to fix the accused in the case. If really her husband uttered the names of the accused, nothing prevented P.W.1 from mentioning the said crucial fact in the complaint. Hence, the participation of accused in the offence is a highly doubtful one.
(b) It is further argued that in the complaint P.W.1 stated as if both the accused hit the deceased with stones whereas in the evidence, she stated as if, A1 alone hit the deceased on his head with a big stone while A2 caught hold his legs. This discrepancy also, she argued, creates a doubt whether P.W.1 really witnessed the incident. Learned counsel would further argue that the conduct of P.W.1 also do not infuse confidence to believe her to be an eye witness. Narrating it, learned counsel argued, though the incident took place in the morning at about 11.00 a.m., the complaint was not lodged till 08.00 p.m. in the night though the police station is only about 12 kilometres from the village. Learned counsel vehemently argued if really the accused have brutally murdered the deceased and P.W.1 was an eye witness, she being the wife of the deceased, would not have waited till evening for the arrival of village elders to consult them and to give report to the police. It is argued, her conduct shows she was not an eye witness and only after coming to know about the death of her husband in the UDPR,J & MGR,J 13 Crl.A. No.651 of 2014 hands of some unknown persons, probably the Naxalites, she waited till evening and after consultation with the village elders some how implicated the accused and that was the only reason why she took long time. She would argue that infact the delayed FIR throws any amount of doubt on the veracity of prosecution case. It is further argued P.W.1's evidence was not free from doubt as to who drafted the complaint. While she stated in her chief as if one of her village elders, whose name she cannot say, had drafted complaint on which she made her thumb mark, in the cross-examination, she took a parabole and stated as if the complaint was drafted by concerned S.I. of police in the police station and she does not know the recitals of the said complaint and again she gave another twist and stated as if the complaint was drafted to her dictation. All the aforesaid discrepancies, she argued, would create doubt as to whether the complaint allegations regarding the occurrence of incident were true and if so, who drafted them and more particularly whether they reveal the truth. Another great confusion in the evidence of P.W.1 is that she stated as if the doctor conducted post-mortem examination at the scene of offence itself.
16. (a) Secondly, on the evidence of P.W.2, it is argued that she is the own sister of the deceased and thus, a highly interested witness and even according to her evidence, she resides separately and her house is at the lower end of the street whereas the house of the deceased at a different place and at the higher end. Since she was not UDPR,J & MGR,J 14 Crl.A. No.651 of 2014 residing along with the deceased, there was no possibility for her to witness the incident. To tinker on this aspect, she claimed as if P.W.4 came to her house and informed about the altercation between the deceased and the accused. Learned counsel argued that this part of the evidence of P.Ws.2 and 4 is not believable because of the time difference about the occurrence of the incident as spoken by P.W.1 on one hand and P.W.2 on the other. According to the P.W.1, the incident was occurred at about 11.00 a.m. in the morning, whereas according to P.W.2 at 10 O'clock in the morning, P.W.4 came to her and informed about the alleged altercation between the accused and the deceased and immediately she rushed to the house of the deceased which according to her took five minutes to reach the house of the deceased. Learned counsel argued that if the version of P.W.1 regarding time of incident is correct, the question of P.W.4 while passing through the house of the deceased noticing the altercation between accused and deceased at 10 O'clock and his informing the same to P.W.2 and her rushing to the house of the deceased immediately and watching the incident do not occur at all.
17. Thirdly, regarding the evidence of P.W.3, it is argued that he is a planted witness. In expatiation, learned counsel would argue, P.W.3 admittedly belong to different village and he claims as if on every Saturday he used to visit the house of the deceased for chit chat and on the date of incident, which happened to be Saturday, he visited the house of deceased and after talking with him while returning home UDPR,J & MGR,J 15 Crl.A. No.651 of 2014 he witnessed the incident. This evidence is highly artificial. She argued that though P.W.3 claims himself as cousin brother of the deceased, P.Ws.1 and 2 have not specifically referred in their evidence about his presence and stated as if he was their relation. They only stated as if some male person was also present. This dubiosity in their evidence causes a doubt whether such male person referred by them is indeed P.W.3 or someone else. Hence, P.W.3 is only a planted witness, she argued.
18. Fourthly, regarding P.W.4, it is argued that his evidence is also not believable because of his conduct i.e., mere informing about the tussle between accused and deceased to P.W.2 and simply going away to the shandy is some what artificial. It is commented that to show that P.W.2 is an eye witness, this man was utilized.
Learned counsel, thus, prayed to set aside the conviction.
19. Per contra, learned public prosecutor would argue that the eye witness account of P.Ws.1 to 3 that A1 cut the throat of the deceased while A2 caught hold his legs and both the accused could not be shattered in the cross-examination. It is argued that P.Ws.1 to 4 are rustic tribes and minor discrepancies bound to occur in their evidence. However, the basic fabric of their evidence was not tore apart in the cross-examination. It is further argued that the defence failed to project any motive for the prosecution witnesses to foist a false case against the accused and the trial court rightly convicted them. He, thus, prayed to dismiss the appeal.
UDPR,J & MGR,J 16 Crl.A. No.651 of 2014
20. We have given thoughtful consideration to the above arguments. There is a distinction between an 'interest witness' and 'related/partisan witness'. The term interested postulates that the person concerned must have some direct interest in seeing that the accused person is some how convicted as he has some animus against the accused, whereas the related witness as in the present case is the one who has some relation with the victim by blood or friendship etc. It is trite law that the evidence of a witness cannot be discarded merely because he happens to be a related/partisan witness, if his evidence is otherwise trustworthy and credible. Prudence requires that the court should cautiously sift their evidence.
21. The Apex Court in State of Rajasthan v. Smt.Kalki and another1, drew the distinction between interested and relative's witness, as under:
"'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'."
22. In another occasion, the Apex Court in Amzad Ali @ Amzad Kha v. The State of Assam2, observed thus:
"The mere claim that the alleged eyewitnesses to the occurrence are close relatives and were interested witnesses is an usual plea invariably repeated and is found to be reiterated in this case too. The witnesses were said to be living in and around the place of occurrence which could be visible from the place of their huts even and that, therefore, their presence at the time, seem to be not only normal and natural, but their claim that they rushed to the place of 1 AIR 1981 SC 1390 2 AIR 2003 SC 3587 UDPR,J & MGR,J 17 Crl.A. No.651 of 2014 occurrence on hearing the hallas, appears to be genuine and acceptable."
23. With the above jurimetrics, when the evidence of P.Ws.1 to 3 is scrutinized, P.Ws.1 to 3, it must be said, are only relation witnesses but not interest witnesses.
24. Having regard to the fact the incident was occurred at the house of deceased, P.W.1 being the wife of deceased has every possibility to witness the incident. Her version is that at about 11.00 a.m., while she was going to graze cattle, on hearing the shouts of her husband that the accused were killing him, she rushed back and saw A1 cuts the throat of her husband with M.O.1 sickle while A2 was holding his legs. Thereupon, A1 hit the deceased on the head with a big stone. The injury spoken by P.W.1 corresponds with the injuries found by P.W.6 - post-mortem doctor. He found crushed injury on the forehead region of the deceased and also found fracture of the frontal, bilateral parietal and bilateral temporal bones. The doctor found lacerated injury of size 12 x 6 x 3 c.m., present on the nape of the neck with blood coming out of the injury, which indicates slitting of the neck. He also found fractures to the 3rd, 4th and 5th ribs and fracture of the cervical spine. These fractured injuries must have resulted due to A1 and A2 hitting the deceased with stones. Doctor further stated that injuries 1, 4, 5 and 8 noted by him could be caused with a sharp edged weapon like M.O.1 sickle and injuries 2 and 7 could be possible with blunt object like M.Os.2 and 9 stones. Hence, the injuries narrated by P.Ws.1 to 3 are corresponding with the UDPR,J & MGR,J 18 Crl.A. No.651 of 2014 injuries spoken by medical witness and further, they could be caused with M.Os.1, 2 and 9. Hence, P.Ws.1 to 3 can be believed to be eye witnesses to the incident.
25. So far as P.W.1 is concerned, as pointed out by the learned counsel for appellant, there are some discrepancies and inconsistencies in her evidence. However, they will not cut across her veracity because P.W.1 is a rustic tribe and an illiterate lady. Therefore, the discrepancies between FIR and her evidence which are minor ones can be ignored. In FIR, she did not mention that her husband shouted the names of the accused specifically. However, in her evidence she stated so. On that ground alone, her evidence cannot be regarded as a cooked up one. As rightly pointed by learned trial judge, FIR is not an encyclopaedia for narrating each and every fact with minute details. Whether or not her husband specifically shouted the names of accused, she in her evidence specifically stated that A1 and A2 participated in the offence and she narrated their individual acts. Therefore, the discrepancies between FIR and the evidence of P.W.1 regarding the deceased uttering the names of accused is not a material one.
26. So far as delay in lodging FIR is concerned, in Ex.P.6 itself the complainant has given the reasons for the delay. It is her case that since the elders and villagers went to the shandy, she waited for their arrival and after consulting them, she lodged the report. Hence, the delay if any is inevitable. It should not be forgotten that she also UDPR,J & MGR,J 19 Crl.A. No.651 of 2014 mentioned in her complaint that the accused specifically chosen the time 11.00 a.m. to attack the deceased because at that time all the villagers would go to Munchingput shandy and no one would be available in the village. Therefore, the delay in lodging FIR is not a fatal one. For the same reason, the argument of the learned counsel for appellant that except the interested witnesses no independent witness were examined can be shelved because the villagers were not available to witness the incident.
27. The other discrepancies in her evidence as to who scribed the Ex.P6 and whether the doctor conducted post-mortem at the scene of offence also can be regarded as minor discrepancies and can be ignored in our considered view. So on a careful scrutiny, there is nothing on record to disbelieve the evidence of P.W.1. It should be noted that in the cross-examination there is no specific suggestion that P.Ws.1 and 2 were not eye witnesses to the incident. A loaded suggestion was made as if Naxalites killed the deceased and false case was foisted in consultation with the villagers and said suggestions was staunchly denied by P.Ws.1 and 2. So P.Ws.1 and 2 can be regarded as eye witnesses. Moreover, the defence has not projected any reason for P.W.1 to implicate A1 and A2 in a false case. As rightly argued by the learned public prosecutor, if really the deceased was killed by Naxalites, P.W.1 would not have chosen to implicate A1 and A2. On the other hand, she being a scheduled tribe would have applied to the UDPR,J & MGR,J 20 Crl.A. No.651 of 2014 Government for financial assistance for the death of her husband in the hands of Naxalites. That is not the case here.
28. So far as P.W.2 is concerned, admittedly, she resides in the same street and her house is in the lower end of the street and the deceased's house is at the higher end of the street. The distance between their houses is so short that one can cover the distance within five minutes by foot. That being so, P.W.2 on the information of P.W.4 that there was some altercation between the deceased and accused, rushed to the house of the deceased and witnessed the incident. The presence of P.W.2 at the scene was also spoken by P.W.1. As already stated supra, there was no specific suggestion in the cross-examination that P.W.2 was not an eye witness to the incident. Therefore, we have no scintilla of doubt that P.W.2 was also an eye witness.
29. So far as P.W.3 is concerned, he is the cousin of deceased and he used to visit deceased on every Saturday causally to have chit chat. The incident being occurred on Saturday, he visited the deceased house and while returning home witnessed the same. It should be noted P.W.2 stated that along with her and P.W.1 another person also witnessed the incident but she could not name him as she was in a shock, rightly as her brother was brutally murdered in front of her. Therefore, in our view the trial court rightly accepted P.W.3 too as an eye witness. So in the final analysis, the evidence of P.Ws.1 to 3 amply establishes the guilt of A1 and A2.
UDPR,J & MGR,J 21 Crl.A. No.651 of 2014
30. Generally, in the presence of the account of eye witnesses motive pales into oblivion. However, in this case, the prosecution also comes up with motive. According to P.Ws.1 and 2, since sometime prior to the incident A1 and A2 were altercating with the deceased on the ground that he was practicing sorcery on children and animals. They raised disputes with deceased suspecting that the daughter of A1's brother namely Prasad was killed by the deceased by practicing witchcraft. The deceased and accused are scheduled tribes and such type of apprehensions are generally common among them. Therefore, it can be held that the prosecution could establish the motive aspect also. So on a conspectus of the entire evidence, we hold that the trial court came to a correct conclusion regarding the guilt of the accused. We find no merits in the appeal and accordingly, this criminal appeal is dismissed by confirming the conviction and sentence passed by the trial court against accused.
In consequence, miscellaneous petitions, if any pending, shall stand closed.
_________________________ U.DURGA PRASAD RAO, J ___________________ M.GANGA RAO, J Date: 12-07-2019 SS/DSH/MVA