This appeal against conviction for causing death under Section 304 Part II IPC was dismissed, upholding the trial court's finding that the appellant stabbed the deceased in the light of corroborative prosecution evidence and dying declarations.
The Criminal Appeal is dismissed confirming the judgment of the Sessions Judge.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE K.C.BHANU
CRIMINAL APPEAL No.63 of 2001
JUDGMENT:
This appeal under Section 374(2) Cr.P.C. is directed against the judgment, dated 08.01.2001 passed in S.C.No.218 of 1998 on the file of Sessions Judge, Adilabad, whereunder and whereby, A.1 was found guilty of the offence punishable under Section 304 Part II IPC and sentenced to undergo rigorous imprisonment for a period of five years and pay a fine of Rs.100/- in default to suffer simple imprisonment for one month.
2. The brief facts that are necessary for disposal of this case, may be stated as follows:
Cheeti Rajesham (hereinafter referred to as ‘the deceased’) is a resident of Vidyanagar, Mandamarri. P.W.1 is the wife, P.Ws.2 and 12 are the daughters and P.W.9 is the son-in-law of the deceased. P.W.9 was not taking P.W.12 to his house and making friendship with A.1. Then, the deceased raised a dispute. One week prior to the death of the deceased, the father of A.1 came in a drunken state and started abusing the deceased, P.W.1 and others in filthy language saying that how could they object for A.1 coming to the house of P.W.9. The matter was referred to the village elders, but elders expressed their inability to hold a Panchayat because of adamant nature of the father of A.1. On the intervening night of 28/29.07.1997 at about 12.30 a.m. or 1.00 a.m. midnight, P.W.2 raised cries saying that two persons have entered into the room, in which, she and P.W.12 were sleeping. At that time, P.W.1 and the deceased were sleeping outside the room. On hearing the
cries, P.W.1 got up and went towards the room of her daughters, and in the meantime, one of the two persons threw her, as a result of which, her bangles were broken. In the meanwhile, the deceased got up and while coming towards her, A.1 stabbed the deceased with a knife on his stomach and ran away. At that time, there was illumination of electric light. Then, the neighbours gathered there and took the injured to the Police Station, where P.W.1 gave Ex.P.1 complaint. The injured was referred to dispensary and as his condition was serious, he was referred to Ramakrishnapur hospital but on the way to hospital, he died. P.W.14 registered a case, proceeded to the scene of offence, conducted scene of offence panchanama in the presence of P.W.4 and another, seized the broken pieces of bangles and prepared a rough sketch. P.W.13 informed P.W.14 about the death of the deceased. Therefore, he altered the Section of law. P.W.16 took up investigation, examined the witnesses, held inquest over the dead body of the deceased on 10.08.1997, arrested the accused, seized knives from A.2 pursuant to his confession statement and sent the material objects to the Forensic Science Laboratory. After completion of investigation, the police filed charge sheet.
3. The charge levelled against A.1 and A.2 is that they both on 29.07.1997, in the night at the house of the deceased situated at Mandamarri in furtherance of their common intention, did commit murder by intentionally or knowingly causing the death of Cheeti Rajesham, Son of Mondaiah by stabbing with a knife and as a result, the deceased succumbed to the injury when he was being shifted to Hyderabad for treatment, thereby, committed the offence punishable under Section 302 read with 34 IPC. When the said charge was read over and explained to them, they pleaded not guilty and claimed to be
tried.
4. To substantiate the charges, the prosecution examined P.Ws.1 to 16 and got marked Exs.P.1 to P.13 besides case properties, M.Os.1 to 4. No oral or documentary evidence was adduced on behalf of the accused.
5. The trial Court after considering the evidence on record, came to the conclusion that A.1 stabbed the deceased without any intention and therefore, he committed the offence punishable under Section 304 Part II IPC and accordingly, convicted and sentenced him as stated above. However, A.2 was found not guilty and he was acquitted. Challenging the said conviction and sentence, A.1 filed the present appeal.
6. Learned counsel appearing for the appellant contended that the evidence of P.Ws.1, 2 and 12 is mutually contradictory and their evidence is unbelievable because, the incident took place during night time and hence, no reliance can be placed on their evidence. He further contended that no reliance can be placed on oral dying declarations and Ex.P.9 and that P.Ws.1, 2 and 12 were in inimical terms with the appellant and due to enmity, the appellant was falsely implicated and therefore, he prays to set aside the conviction and sentence imposed on the appellant.
7. On the other hand, the learned counsel representing the Public Prosecutor contended that the evidence of P.Ws.1, 2 and 12 clearly shows that it is the appellant who caused the stab injury and that the oral dying declarations said to have made by the deceased to the witnesses and the statement of the deceased recorded by the police would clearly go to show that it is the appellant/A.1, who caused the
injury, and none else and that the trial Court after considering the evidence rightly found A.1 guilty and there are no grounds to interfere with the impugned judgment.
8. P.W.4 is one of the mediators for recovery of M.O.1. P.W.11 is one of the inquest mediators. When P.W.16 conducted inquest over the dead body of the deceased under Ex.P.5, the inquest mediators opined that the deceased died as a result of stab injury.
9. P.W.15 is the doctor, who conducted autopsy over the dead body of the deceased on 30.07.1997, found an incised wound oblique in direction in the left post axillary line at level of 9th , 10th intercostals space 1 1/2 “ in length, ½ breadth, depth extending into the abdominal cavity, and opined that the said injury can be possible by stabbing with a weapon like M.O.3 and the deceased died due to shock and hemorrhage due to spleen injury. He issued Ex.P.10 post-mortem report. Nothing has been elicited to discredit his testimony. The cause of death as spoken to by the doctor and as stated in Ex.P.10 remained unchallenged.
10. The case rests upon the evidence of P.Ws.1, 2 and 12. P.W.1 is the wife and P.Ws.2 and 12 are the daughters of the deceased. Simply because they are close relatives of the deceased, it does not mean that their evidence has to be disbelieved on that ground. If their evidence is found to be convincing, acceptable and trustworthy, it can be acted upon. The presence of P.Ws.1, 2 and 12 at the scene of occurrence is not in dispute. Therefore, they are natural witnesses to be present at the time of occurrence. It is also not in dispute that P.W.14 observed the scene of offence in the presence of P.W.4 and
prepared Ex.P.3 - scene of offence panchanama and Ex.P.7 - rough sketch. There is no serious dispute as to the scene of occurrence. The motive for the offence is P.W.9 was not taking P.W.12, the daughter of the deceased, to his house and he was making friendship with A.1. Therefore, the deceased raised a dispute with elders, who had not dare enough to hold any panchayat because of highhanded behaviour of the father of A.1. It is also not in dispute that P.W.12 was staying with her parents, as there were disputes between her and P.W.9. No doubt, the prosecution has not come forward with any immediate motive to do away the life of the deceased but at the same time, the evidence of prosecution witnesses need not be rejected on that count, if otherwise, their evidence is convincing, true and trustworthy.
11. Motive is not an integral part of the crime. It is only an aid in assessment of criminality. As the presence of P.Ws.1, 2 and 12 is established beyond all reasonable doubt at the time of incident, the only thing, which is to be considered, is that whether they could be in a position to identify the assailant of the deceased, because the incident is alleged to have taken place during midnight. Admittedly, P.W.1 and the deceased were sleeping in the verandah, while P.Ws.2 and 12 were sleeping in the room. They have categorically stated that they had seen the accused in the illumination of electric light. That aspect of the case has not been seriously denied or disputed in the crossexamination. As seen from the scene observation report, the police found red colour cooler at the scene. Therefore, it can be inferred that the house was having an electric service connection. It is not the case of the appellant that the house was not having any electric service connection or that no lights were burning at the time of incident. When such is the case, there is every possibility for P.Ws.1, 2 and 12 to
identify the appellant. There is no other reason to speak false against the appellant. Unless there is a strong animus against the appellant, they would not have implicated him leaving the real assailant. There is no such enmity for these witnesses to implicate the appellant/A.1 in the case of this nature.
12. Further, the evidence of P.Ws.1, 2 and 12 is in corroboration with the oral dying declarations said to have been made by the deceased to P.Ws.6, 8 and 13 besides Ex.P.9, which is the statement recorded by the police under Section 161(3) Cr.P.C. during the course of investigation. The statement made by a person as to the cause of his death or any one of the circumstances resulting in his death, in case in which such death comes into question, is admissible in evidence under Section 32(1) of the Indian Evidence Act. The law is equally well settled that if the dying declarations are found to be true and trustworthy and not an outcome of tutoring or prompting by any of the relatives of the deceased or interested persons, it can be acted upon even without any corroboration. P.Ws.6, 7 and 13 are the disinterested witnesses. They are the persons who carried the deceased to the hospital, but on the way to the hospital, the deceased died. The medical evidence would go to show that within a period of two hours, patient must have been fully conscious without going into coma due to shock. Therefore, there is every reason for these witnesses to question the deceased as to how he sustained injury and there is every possibility for the deceased to inform them about the cause of his death. Similarly, Ex.P.9 would clearly go to show that it is the appellant/A.1, who stabbed the deceased with the knife on the abdomen. It is not the case of the appellant that these dying declarations have been made by the deceased as a result of tutoring
by somebody. Even the trial Court has not rejected the oral dying declarations as well as Ex.P.9. What the trial Court observed is that even the oral dying declarations were not taken into consideration, the evidence of P.Ws.1, 2 and 12 is sufficient to convict the appellant. In the absence of any reason, it is not desirable to reject the oral dying declarations made to the witnesses and Ex.P.9 as they are found to be true and correct. Therefore, the trial Court after proper appreciation of evidence on record, rightly convicted the appellant and the impugned judgment does not suffer from any infirmity so as to call for interference by this Court, as there are no compelling or substantial reasons.
13. The Criminal Appeal is accordingly dismissed confirming the judgment, dated 08.01.2001 in S.C.No.218 of 1998 on the file of the Sessions Judge, Adilabad.
_______________ K.C.BHANU, J
3rd FEBRUARY, 2010.
kvni
3 provisions across 3 enactments
A.1
State
K.C. BHANU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
