Dismissed

Bhukya Dharma , Dharmiya, v. The State of Andhra Pradesh

Telangana HC4 Mar 2014CRLA/1045/2009

Case brief

AI extract

What is this about?

In a criminal appeal against a murder conviction, this Court examined evidence regarding the stabbing of a father-in-law by the son-in-law. Refuting arguments about motive, witness credibility, and delay in the FIR, the Court held the prosecution proved its case beyond reasonable doubt and dismissed the appeal, upholding the conviction under Section 302 IPC.

What did the court decide?

The Criminal Appeal is dismissed confirming the Judgment of the Session Court convicting the appellant for murder.

Bhukya Dharma , Dharmiya, Vs The State of… — Murder and Culpable Homicide | Telangana HC (2014)

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HON'BLE SRI JUSTICE K.C.BHANU AND

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HON'BLE SMT JUSTICE ANIS

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CRIMINAL APPEAL No.1045 OF 2009

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J U D G M E N T: (per Hon’ble Smt Justice Anis)

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This Criminal Appeal is filed by the appellant/accused, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), against the Judgment, dated 11.09.2009 in Sessions Case No.100 of 2008 on the file of the I Additional District & Sessions Judge, Krishna at Machilipatnam, whereunder and whereby, the appellant/accused was found guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “I.P.C.”) and accordingly, he was convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.200/-, in default, to undergo simple imprisonment for one month.

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2. The brief facts that are necessary for disposal of the appeal may be stated as follows:

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The appellant/accused is the son-in-law of one Banavathu Jamulu (hereinafter referred to as ‘the deceased’). They both are the residents of Gollamandala Thanda of A.Konduru Mandal. Deceased has two wives. The first wife by name Venkamma, who is the complainant/PW.1, is living with the deceased at Gollamandala Thanda, while the second wife by name Tirupatamma (LW.2) is residing in Gopavaram village of Musunuru Mandal along with her children i.e., two female and one male children. The elder daughter of Tirupatamma by name Bhukya Rangamma was given in marriage to the accused about 15 years back and was sent with the accused to lead her marital life. They both lived happily for about some period and were blessed with

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two male children. But later, the accused addicted to liquor and used to come to the house in a drunken state, harass the daughter of the deceased and beat her without any reason. The deceased and the wife of the accused informed the harassment made by the accused to the elders of the village, for which they held panchayat on two occasions in this regard, in which they admonished and warned the accused and also convinced him to look after the daughter of the deceased well in future. But, the accused did not mend his behaviour and continued his harassment, as such the wife of the accused went to Gopavaram village of Musunuru Mandal and began residing with her mother and brother.

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The accused bore grudge against the deceased thinking that he is not taking any initiative in convincing his daughter and send her to his house in order to lead marital life with him, and that as long as the deceased is alive, his wife would not come to his house, he decided to put an end to the life of the deceased and was waiting for an opportunity.

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Thus, on 22.10.2007 at 9:30 a.m, the accused went to the house of the deceased with an intention to kill the deceased by hiding the knife and called the deceased out from his house. The deceased came outside on to the road, where the accused asked the deceased to send his daughter for marital life. The deceased replied that he will send his daughter only after the change in his attitude, for which the accused grew wild, picked up the knife and stabbed the deceased on his testicles on inguinal region and caused severe bleeding injuries, due to which the deceased fell on the road in front of his house and died on the spot. This was witnessed by the neighbours, who tried to catch the accused, but he absconded with the knife. Later, PW.1 got prepared Ex.P1 report and presented the same in A.Konduru Police Station.

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LW.21 Assistant Sub Inspector of Police, A.Konduru police Station received the report of PW.1 and registered the same as a case in Cr.No.91 of 2007 for the offence punishable under Section 302 I.P.C. PW.9 Circle Inspector of Police, Mylavaram took up investigation, examined the scene of offence in the presence of mediators, got drafted the observation report, got photographed the scene of offence, prepared the rough sketch of the same and seized the material objects. PW.9 also conducted inquest over the dead body of the deceased and during inquest, he also examined the witnesses and recorded their statements and sent the dead body to Community Health Centre, Tiruvuru, for autopsy through a police constable (LW.20).

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PW.10-doctor conducted autopsy over the dead body of the deceased on 23.10.2007 and issued Ex.P18 postmortem certificate opining that the deceased would appear to have died of shock and haemorrhage due to injury to large blood vessels.

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During the course of investigation, PW.9 arrested the accused on 26.10.2007 at 10:00 hours at A.Konduru bus stop centre in Kambampadu in the presence of the mediators and on the same day at 17:30 hours, as per the confessional statement of the accused, he lead the mediators to the hut situated in the field of the accused, where he hid the clothes wore by him at the time of commission of the offence and handed over the knife used for the commission of the offence. PW.9 seized the clothes and knife in the presence of mediators and later, sent the accused to remand.

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The C.F, Regional Forensic Science Laboratory, Vijayawada, after conducting analysis over the material objects issued Ex.P17 report opining that human blood is detected on the material objects. Thus, after completing the investigation and after

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receiving the reports, PW.9 laid charge sheet before the Court.

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3. On appearance of the accused, the trial Court framed the following charge against him:

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“Firstly and Lastly:That you, Bhukya Dharma @ Dharmiya, on the 22^nd day of October 2007 at about 9:30 a.m, on the eastern road near the house of the deceased in Gollamandala Thanda village did commit murder by intentionally (or knowingly) causing the death of your fatherin-law Banavathu Jamulu @ Dobba, by stabbing him with a knife on his testicles on inguinal region and also caused several injuries on the ground that the deceased did not take any initiative to send his daughter for kapuram with you and as long as the deceased alive your wife would not join you, and that you thereby committed an offence punishable under Section 302 of Indian Penal Code and within the cognizance of Court of Session.

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And I hereby direct that you be tried on the said charge.”

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4. When the said charge was read over and explained to the appellant/accused in Telugu, he pleaded not guilty and claimed to be tried.

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5. To substantiate the charge, the prosecution examined P.Ws.1 to 10 and got marked Exs.P.1 to P.18, besides the case properties MOs.1 to 10.

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6. After closure of the prosecution evidence, the appellant/accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances, appearing against him in the evidence of the prosecution witnesses. He denied the same, got examined DW.1 and got marked Exs.D1 to D3 during the cross-examination of PW.2.

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7. The trial Court after hearing both sides and taking into consideration, the oral and documentary evidence available on record, convicted and sentenced the appellant/ accused as stated

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above. Aggrieved by the said conviction and sentence, the present appeal has been preferred by the appellant/accused.

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8. Now, the points for determination in this appeal are:

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1. Whether the death of the deceased is a homicidal death?

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2. Whether the prosecution is able to prove its case beyond all reasonable doubt against the appellant/accused of the offence punishable under Section 302 I.P.C?

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3 . Whether the Judgment of the trial Court is correct, legal and proper?”

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9. POINTS: The learned counsel appearing for the appellant argued that the prosecution failed to prove the motive behind the offence, and therefore, the benefit of doubt should be given to the appellant and that the Court below should have acquitted the appellant for the said offence; that PWs.1 to 3 are not the eye witnesses to the incident and they have no access to witness the scene of offence; that the evidence of PW.2 coupled with Exs.D1 & D2 clinchingly prove that PW.2 has not witnessed the incident and the same was not supported by the evidence of PW.4, who deposed that PW.2 came after the incident and basing on the evidence of PWs.1 to 3, the trial Court convicted the appellant, and therefore, it is to be set aside. The learned counsel for the appellant also argued that PW.1 does not know who drafted Ex.P1 and she has not given the name of the scribe of Ex.P1, whereas PW.4 stated that it was drafted by the police constable, and therefore it gives suspicious circumstance to believe the contents of Ex.P1 report, basing on which the entire prosecution case rests. It is also argued that the prosecution failed to explain the abnormal delay in presenting Ex.P1 report and in dispatching Ex.P14 First Information Report to the concerned Magistrate, and therefore, it can be presumed that Ex.P1 was brought into

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existence after consultations and deliberations and it cannot be relied upon. The learned counsel further argued that PWs.1 to 4 are interested witnesses and they are closely related to the deceased, and therefore their evidence cannot be considered to convict the appellant and it is not supported by any independent witness; that the evidence of PWs.1 to 4 is unnatural, as they failed to avert the incident and if really, they were present at the time of incident, they would have averted the accused in committing such a grave offence; and that the ocular evidence does not support the medical evidence. The learned counsel for the appellant also argued that seizure of the knife, which was recovered at the instance of the accused is planted one in view of the evidence of PW.7, who categorically stated that MO.3 knife was seized from the paddy crop, whereas PW.9 Investigating Officer stated that there was no paddy crop, and therefore MO.3 is a planted one for the purpose of this case; that the prosecution witnesses in their evidence stated that there was a wooden handle to the knife, whereas MO.3 does not contain such handle, and therefore MO.3 is brought into existence after thought and it does not contain any blood stains at the time of seizure and the prosecution has to explain how the blood stains were wiped of and finally argued that there was a struggle between the deceased and the accused prior to the alleged incident and the deceased might have received the injuries in the said struggle and the accused has no intention to kill the deceased and the accused also suffered injuries on his left hand finger, which gives strength to the case of the appellant and prayed the Court to convert the conviction against the appellant under Section 304 Part II I.P.C. Learned counsel for the appellant relied upon some of the case laws which are mentioned hereunder.

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In Ramu v. State of U. P^[1] , it is held as follows:

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“Having examined the evidence on record we are in agreement with the High Court that the appellant did not have any motive whatsoever to cause any fatal injury to the deceased. We also agree with the High Court that the injury in question was caused during a melee in which 6 persons took part therefore in our opinion on the facts and circumstances of this case, the act of the appellant in causing injury to the deceased which led to his death, cannot be the one which could be construed even as an act of culpable homicide not amounting to murder. Therefore, to that extent in our opinion the High Court fell in error in holding the appellant guilty for an offence under section 304 IPC. In our considered opinion on the facts and circumstances of this case the act of the appellant is one of causing grievous hurt with a deadly weapon which is punishable under section 326 IPC. Noticing the fact that the incident in question has occurred as far back as 1978 and the appellant had no enmity against the deceased nor any motive to cause a fatal injury, we think the ends of justice would be met if the appellant's conviction is altered to one under section 326 IPC and a sentence of 3 years' RI is awarded for the said offence.”

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In Satish Narayan Sawant v. State of Go a^[2] , it is held as

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follows:

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“28. That being the well settled legal position, when we test the factual background of the present case on the principles laid down by this Court in the aforesaid decisions, we are unable to agree with the views taken by the High Court. As already noted, it is quite clear from the record that there was an altercation preceding the incident. The place of occurrence is a residence inhabited by both the parties and there is no evidence on record that the deceased was armed with any weapon. Initially the accused-appellant also did not have any weapon with him but during the course of the incident he went inside and got a knife with the help of which he stabbed the deceased. PW-7 in his cross examination has categorically stated that death due to stab injury was in consequence of Injury No. 1 and all other injuries were superficial in nature. So, it was only Injury No. 1 which was fatal in nature. Factually therefore, there was only one main injury caused due to stabbing and that also was given on the back side of the deceased and therefore, it cannot be said that there was any intention to kill or to inflict an injury of a particular degree of seriousness. Records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the appellant also received an injury which was simple in nature

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and that there was heated exchange of words and scuffle between the parties before the actual incident of stabbing took place. There is, therefore, provocation and the incident happened at the spur of the moment. That being the factual position, we are of the considered view that the present case cannot be said to be a case under Section 302 IPC but it is a case falling under Section 304 Part II IPC. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death.”

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In Jagriti Devi v. State of H. P^[3] , it is held as follows:

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“22. That being the well settled legal position, when the factual background of the present case is tested on the principles laid down by this Court in the aforesaid decisions, we are unable to agree with the views taken by the trial court as also by the High Court. As already noted, it is quite clear from the record that there was an altercation preceding the incident of murder in which the accused-appellant was insulted by the deceased and by doing so the deceased provoked the accused-appellant. The deceased also took out the Khukri' which was under the pillow with the intention of assaulting the accused-appellant and the accusedappellant in order to save herself grappled with the deceased and during that process she also received injuries. The prosecution has failed to give any explanation with regard to those injuries received by the accusedappellant. Further, it is also established in evidence that the Khukri' used in the commission of offence was kept by the deceased under her pillow while she was sleeping in the veranda outside the house. Clearly, there was no intention on the part of the accused-appellant to kill the deceased. That being the position, we are of the considered view that the present case cannot be said to be a case under Section 302 IPC but it is a case falling under Section 304 Part II IPC. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death.

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23. We, therefore, hold the accused-appellant to be guilty for offence under Section 304 Part II IPC. Her conviction under Section 302 IPC is, therefore, set aside. The accused-appellant has already undergone about seven years of imprisonment. We therefore, alter the sentence to the period already undergone by the accused-appellant. So far as the punishment of fine is concerned, the same stands set aside. The accused-appellant shall now be released forthwith if she is not wanted in any other case.”

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In Golluri Komati v. State of Andhra Prades h^[4] , it is held as

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follows:

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“30. Therefore, as deposed by PWs.1 and 2,

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the main reason for the accused to attack the deceased was the rejection by the deceased to marry his eldest daughter and also on account of further allegation that the accused was a bad person. This, in normal course, as already pointed out, is sufficient to arose some amount of emotion and anger, which otherwise called as a provocation, and the said provocation was not necessarily premeditated, inasmuch as, there was no preparation at all.

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31. The very reason for the accused to go to the deceased was to request him to marry his eldest daughter and hence the question of going with a preparation to kill him does not arise. Therefore, the circumstances are quite obvious that the accused got provocated suddenly because of the rejection to marry his eldest daughter and the reason for such rejection was the accused is a bad person.

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32. Having regard to the facts and circumstances, we are of the view that the accused cannot be held to be liable for punishment the offence under Section 300 IPC, but only liable for the offence committed under Section 302 Part II IPC, inasmuch as, his act of causing injury as is likely to cause death, or with the knowledge that it was likely to cause death of the deceased, but, as already pointed out, commits the offence of culpable homicide.

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33. Accordingly and for the foregoing, we find that the Court below was in error insofar as appreciating the evidence on record in recording the conviction for the offence punishable under Section 302 IPC, instead of under Section 302 Part II IPC, and consequently the sentence is also liable to be modified from rigorous imprisonment for life to that of rigorous imprisonment for five years.”

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10. On the other hand, the learned Additional Public Prosecutor argued that PWs.1 to 4 are the eye witnesses to the incident; that the appellant is the resident of Gollamandala Thanda village, whereas deceased is also resident of the same village; that the daughter of the deceased by name Bhukya Rangamma was given in marriage to the appellant about 15 years ago; that the appellant and Rangamma were blessed with two children and later, appellant was addicted to bad vices and he was harassing his wife Rangamma; that the deceased caused two mediations in that

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regard and elders admonished the appellant, and finally the daughter of the deceased Rangamma reached Gopavaram village; that the appellant bore grudge against the deceased as he is responsible for his wife not joining him; that on 22.10.2007 at 9:00 a.m, accused with an intention to kill the deceased, took a knife and went to the house of deceased, called the deceased to come out of the house and when the deceased came out of his house, asked him to send his wife to his house, but when the deceased refused to send his daughter, the appellant grew wild, took out the knife and stabbed the deceased on his testicles, for which the deceased sustained bleeding injuries and died on the spot; that PWs.1 to 4 witnessed the incident and when PW.3 attempted to catch the appellant, he absconded from the scene of offence; that all the eye witnesses categorically stated about the incident; that PW.1 gave a complaint Ex.P1 to the police and the same was registered; that during the investigation, the appellant confessed about the commission of the offence and at his instance, the knife MO.3 was recovered. It is also argued that the Forensic Science Laboratory report clearly shows that there is human blood, and medical evidence supported the ocular evidence and that the evidence of prosecution witnesses is cogent, consistent, corroborated and trustworthy; that the evidence of PWs.1 to 4 clinchingly establish that the appellant stabbed the deceased and due to injuries, the deceased died and therefore, the prosecution able to prove the guilt of the appellant beyond all reasonable doubt and the trial Court rightly convicted the appellant and finally prayed the Court to dismiss the appeal.

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11. POINT No.1: PW.7 is one of the witnesses for the inquest panchanama. He stated that he worked as in-charge

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Village Revenue Officer of Gollamandala village and during that period, on 22.10.2007, while he was in the Mandal office in A.Konduru, at about 1:00 p.m, he was called by the police to be present at Gollamandala village; that he was present when police conducted inquest panchanama in the presence of K.Raja Rao and K.B.V.V.Ramarao over the dead body of the deceased at about 2:15 p.m in the afternoon; that he found injuries on the body of the deceased, on his right side thigh and injury on his middle finger; that at that time, other relatives were present; that all the panchayatdars opined that the deceased was killed by stabbing on the testicles and causing other injuries; and that himself and other mediators signed on Ex.P10 inquest report.

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12. PW.9-Circle Inspector of Police, Mylavaram Police Station, stated that after receiving the copy of the express First Information Report Ex.P14, he proceeded to the scene of offence at Gollamandala Thanda and found that the body was lying on the road in front of the house of the deceased; that he conducted inquest panchanama in the presence of PW.7 and two other mediators by name Raja Rao and Ramarao; and that the inquest mediators opined under Ex.P10 inquest report that the deceased died due to stab injuries. PW.9 also stated that he examined other witnesses at the time of inquest.

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13. PW.10 is the doctor, who worked in Community Health Centre, Tiruvuru. He stated that as per the requisition of police, A.Konduru, he conducted post-mortem examination on the dead body of the deceased from 10:00 a.m to 12:00 noon on 23.10.2007; that the deceased was aged about 50 years; that both the upper and lower limbs are extended and closed to the body; that P.M. lividity and rigor mortis were present putrefaction not yet

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commenced. He stated that he also found the following antemortem injuries on the dead body of the deceased.

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1. Stab injury at right inguinal region with 10X8X15 cms rupture of right femoral vessels.

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2. Lacerated wound extended from mid point of right inguinal region to right scrotum measuring 10X3X3 cms.

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3. Lacerated wound over medial side of right thigh measuring 8X3X3 cms.

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4. Lacerated wound over left middle finger measuring 5X3X3 cms.

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He also stated that all the injuries could have been caused with a sharp edged weapon like knife and all injuries are antemortem in nature; that injury Nos.1 & 2 are grievous in nature and injury Nos.3 & 4 are simple in nature; that he did not mention the nature of injury No.1, but stated that it is simple in nature.

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He also stated that he found that skull was opened and it was congested; that mouth area, neck area, Diaphragum, media stream, thymus, Osphyagus, trachea Bronchi Plueaural cavity, lungs intestines, luiver, pancreas, spleen, adrenals were congested; that no abnormality was detected on brain chest, pertnioal cavity, kidneys, urinary bladder; that there are injuries to large blood vessels; that there was 100 ml of semi digested food in his stomach; and that injuries to pelvic walls and genital organs. He further stated that he did not preserve the food contents, though he mistakenly mentioned as if he preserved the food contents.

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He gave opinion that the approximate time of death is 24 to 36 hours prior to the autopsy and he also opined that the cause of the death of the deceased is shock and hemorrhage due to injury to large blood vessels viz., Hypovolemic and Haemorrhage shock and issued postmortem certificate Ex.P18. In the crossexamination, he stated that he did not mention the colour of the body in autopsy report, but P.M lividity means that the body was in

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light bluish colour and also stated that the deceased must have been alive only for 10 minutes after receiving the above said injuries and haemorrhage shock hypovolemic shock was result on account of heavy loss of blood. Nothing has been elicited to disprove the testimony of the doctor PW.10 regarding the cause of the death.

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14. Thus, from a perusal of the evidence of PWs.7, 9 & 10 and from the recitals in Exs.P10 & P18, it is clear that the deceased died due to injuries and his death is homicidal in nature.

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15. Now, it is to be seen whether the appellant is the assailant of the deceased or not?

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16. There is no dispute that PW.9 Investigating Officer conducted the scene of offence panchanama in the presence of PW.7 Village Revenue Officer of Gollamandla village, A.Konduru Mandal. There is no dispute that the scene of offence is at Gollamandala Thanda, hamlet of Gollamandala village of A.Konduru Mandal, which is an earth road leading from Gollamandla Thanda to Gollamandala village, in front of the house of the deceased, on the eastern side at about 15 yards distance to the earthen road. Ex.P9 is the scene of offence observation report. Ex.P15 is the rough sketch. As per the evidence of the prosecution witnesses, the incident took place on the road by the side of the house of Periya.

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17. PW.1 is the complainant and wife of the deceased, who gave Ex.P1 complaint to the police on 22.10.2007 stating that on that day at about 9:30 a.m, while herself and her husband were at their house, their elder son-in-law (accused) came in front of their house and called her husband by name; that when her

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husband went in front of their house, the accused asked her husband to send his wife with him; that her husband informed the accused that he will send his daughter after he change his attitude and then proceeded towards the house of Banavathi Peliya; that the accused stabbed her husband with a knife, for which her husband raised cries; and that PWs.3, 4 and some other neighbours came there and saw the accused stabbing her husband and after seeing them, the accused fled away from the scene of offence. PW.1 also stated that her husband was having two wives and she is the first wife and Tirupathamma is the second wife; that the daughter of Tirupathamma was given in marriage to the accused 15 years ago and they lived happily for some time from the date of the incident; that the accused started harassing and beating her daughter and mediations taken place and elders admonished the accused and advised them to live together; that in spite of the advice, the accused did not change his attitude and beat her daughter in drunken state and harassed her.

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18. After receiving Ex.P1 complaint, the Assistant Sub Inspector of Police, A.Konduru Police Station registered the case as in Cr.No.91 of 2007 and issued First Information Report Ex.P14.

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19. There is no dispute that PW.1 is the wife of the deceased and accused is the son-in-law of the deceased, who is the husband of Bhukya Rangamma, daughter of the deceased through his second wife Tirupathamma.

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20. PW.1 in her evidence clearly stated about the above relationship and also stated that on the eve of Dasara festival, about twenty months ago prior to the incident i.e., on the date of

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the incident, while her husband and herself were present in the house, the accused came there and called her husband to come out of the house, for which herself and her husband went out of the house; that the accused argued with her husband to send his daughter with him, for which her husband replied the accused that there was no change in his attitude and that he will send his daughter to him after changing of his attitude; that after giving such reply, her husband started to go towards the house of Bhanvathi Peryaia; that the accused called her husband as ‘Mamayya’, for which her husband turned towards the accused and then the accused, who was carrying a knife at the naval area, picked up that knife and stabbed her husband on the right side near testicles; that her husband was struggling with bleeding injuries and was crying; that again accused stabbed her husband on the right thigh; that when her husband tried to catch the accused, in that process he suffered injury to his left hand finger; that her husband raised cries and fell down on the ground; that some ladies poured water and then her husband died; that after stabbing the deceased, the accused fled away; and that PWs.2 & 3 and other villagers witnessed the incident and she gave Ex.P1 complaint to the police. Further, PW.1 clearly stated that the weapon used by the accused is a knife, which will be used for cutting the goats. She also stated that the reason for commission of the murder by the accused is that his wife was not being sent to him and her husband was impediment for re-union with his wife.

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21. PW.2, who is the father of the deceased, also stated that on the date of incident, he was present in his house and that his son and PW.1 were also present in their house; that accused called the deceased as ‘Mamayya’, and then PW.1 and deceased

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came out of the house, accused asked his son to send his wife to him; that his son stated to the accused that he was drinking, playing cards and in case of changing his attitude he will send his daughter to the accused; that there is a pathway by the side of the house of Pelia; that there is a house of deceased’s sister in the said lane, after crossing the house of Pelia; that his son moved to go over the said house of his sister and while he was going, the accused followed the deceased and called him as ‘Mamayya’; that the deceased turned towards his back and then, the accused picked up a knife from his naval area and stabbed the deceased near his right testicles; that the accused dealt with three blows and stabbed on the thigh of the deceased; that Dharavath Chanti made an attempt to catch the accused, but he fled away from the scene of offence and then the deceased raised cries.

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22. PWs.3 & 4 are the eye witnesses to the incident. Both the witnesses stated that at about 9:30 a.m, in the morning on 22.10.2007, when they were sitting on the road in front of his house and were chitchatting, accused came there; that PW.1 and deceased were present in their house; that accused called the deceased and thereupon, PW.1 and deceased came out of the house; that the accused asked the deceased to send his daughter to him for marital life and then the deceased replied that he will send his daughter, if the accused gives up his vices such as drinking, playing cards and quarrels; that at that time, PW.2 was also present at his house; that after replying, the deceased was moving towards his sister’s house by the side of pathway and when he was in front of the house of Pelia, the accused followed him and called the deceased, and when the deceased turned back, the accused picked up the knife hidden at his naval place and

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stabbed the deceased on his right side testicle, on the right thigh and on the right hand finger and ran away from the scene of offence; that when PW.3 tried to catch the accused, he shook off and fled away from the scene of offence; that the deceased struggled for some time and died; PW.3 stated that MO.1 is his shirt, MO.2 is his lungi and MO.3 is the knife used by the accused during the commission of the offence.

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23. Thus, from the evidence of PWs.1 to 4, it is clear that on the date of incident, the accused came to the house of the deceased and PW.1, and asked him to send his wife to lead marital life and when the deceased told him that if he change his attitude and give up his bad habits, he will send back his daughter with the accused. When the deceased was moving at pathway near the house of Peliya father of PW.4, the accused called the deceased as ‘Mamayya’ and when the deceased turned back, accused removed the knife hidden in the naval area and attacked him on his testicles twice, due to which the deceased died on the spot. The evidence of PWs.1 to 4 is consistent, cogent and trustworthy regarding the manner of the incident and attack made by the accused on the deceased.

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24. PW.5 is the mediator and resident of Gollamandala Thanda. He stated that he is an agriculturist and doing agricultural work. He knew the accused and the deceased. According to him, 15 years back, the marriage of the accused was performed with the daughter of the deceased. They lived amicably for 13 years and subsequently, quarrels arose between them. The accused used to beat his wife. D.Laxmana, Bhukya Laxmana, Bhukya Baddu, himself and other elders acted as mediators for the dispute in between the accused and his wife Rangamma. They

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advised the accused to look after his wife properly. Subsequently, the said Rangamma parted company of the accused on the ground that the accused beat her. The deceased used to live some time with his first wife in their village and for some time with his second wife Tirupathamma at Gopavaram village. PW.5 stated that he came to know that accused killed the deceased.

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25. PW.6 is the photographer, who took the photographs of the dead body of the deceased under Exs.P2 to P5 photographs and Ex.P6 negatives. He also took the photographs of the scene of offence covering the blood stains under Exs.P6 & P7 photographs and Ex.P8 negatives.

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26. The evidence of PW.8 is not much relevant as he was the person, who handedover the dead body of the deceased after the postmortem examination to his relatives on 22.10.2007.

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27. PW.7 acted as a mediator for scene of offence panchanama Ex.P9, confession and recovery of MO.3 knife from the accused. He stated that on 26.10.2007, while he was present in the Mandal Revenue Office, PW.9 called him through his constable; that then, he along with other mediators went to the bus stop situated on Koduru road, at a distance of 3 KMs from A.Konduru police station; that accused was present at the bus stop and PW.9 questioned the accused in their presence and accused confessed about the commission of the offence and produced MO.3 knife, which was hidden in the fields; that the accused took out MO.3 and also his blood stained clothes; and that Ex.P13 is the mediator report regarding the seizure of knife and clothes of the accused and MO.7 is the blood stained shirt of the accused, which was used by him during the commission of the

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offence.

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28. PW.9 Circle Inspector and Investigating Officer, stated that the Assistant Sub Inspector of Police, who registered the crime in this case is no more; that after receiving the copy of the First Information Report, he proceeded to the scene of offence situated at Gollamandala Thanda and prepared the scene of offence report Ex.P9 in the presence of the mediators, got photographed the scene of offence in the presence of the mediators through PW.6 under Exs.P2 to P8, conducted the inquest panchanama under Ex.P10, sent the dead body to conduct postmortem examination to the Government Hospital, Tiruvuru; that he recorded the statements of PWs.1 to 6 and others and seized the blood stained clothes of PW.3 and the accused in the presence of the mediators under the cover of panchanamas Exs.P9 and P13 and sent the material objects to Regional Forensic Science Laboratory, Vijayawada; and that after receiving Ex.P17 Regional Forensic Science Laboratory report and postmortem certificate Ex.P18, he filed the charge sheet into the Court.

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29. DW.1 is also the resident of Gollamandala Thanda and he stated that on the date of incident at about 9:00 a.m, while he was going from Thanda to Khambhampadu, he found that the accused and deceased were scuffling in the lane by the side of the house of Periya; that deceased was holding a knife at that time; that deceased came and fell down on the road while the accused went away; that the accused did not stab the deceased, but the deceased received injuries on his testicles and thigh. According to him, PW.1 was present in the fields at the time of the incident and at the time of incident, the deceased was asking the accused

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to settle his land in favour of the sons of the accused and accused was refusing the same.

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30. The learned counsel for the appellant argued that there was a scuffle between the accused and the deceased and during that scuffle, the deceased received injuries and there was no motive for the accused to kill the deceased and the evidence of DW.1 is relevant and therefore, the appellant is entitled to be taken lenient view for the offence punishable under section 304 Part II I.P.C.

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31. There is no dispute that PWs.1 & 2 are the wife and father of the deceased. Both are eye witnesses to the incident and they clearly stated that on the date of incident, accused came to the house of the deceased and called him and when the deceased came out of the house, the accused asked the deceased to send the wife of the accused Rangamma and the deceased replied that he would send the wife of the accused only if he give up his bad habits and when the deceased was moving towards the house of one Periya, the accused called him as ‘Mamayya’ and when the deceased turned back, then the accused took a knife from his naval area and attacked the deceased on his testicles and when the deceased tried to prevent, again the accused stabbed him on his right thigh and due to the injuries, he fell down and died on the spot.

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32. Learned counsel for the appellant argued that the evidence of PWs1 & 2 is interested one and cannot be relied upon. The contention of the learned counsel for appellant cannot be accepted because the evidence of PWs.1 & 2 is natural. PW.1 is the wife of the deceased, who was present along with the

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deceased in the house at the time of offence and she along with the deceased came out of the house, when the accused called the deceased. PW.2 is none other than the father of the deceased, whose house is also nearby the house of the deceased and who also came to the scene of offence and saw the attack made by the accused on the deceased. Therefore, the presence of PWs.1 & 2 is natural and probable and their evidence cannot be brushed aside. If the evidence of PWs.3 & 4 is taken into consideration, on the date of incident at about 9:30 a.m, PWs.3 & 4, D. Baddu and D. Laxmana and others were sitting on the road in front of the house of PW.3 and chitchatting and all of them have seen the accused calling the deceased and all of them have seen the accused attacking the deceased with the knife MO.3 on his testicles and also on his right thigh, due to which the deceased fell down on the road at the scene of offence and died. The evidence of PWs.1 to 4 is corroborating with each other and their evidence is cogent and trustworthy.

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33. The learned counsel for the appellant argued that the scene of offence rough sketch Ex.P15 does not contain the house of PWs.3 & 4. Here, the evidence of PW.9 Investigating Officer is relevant. In the cross-examination, the Investigating Officer clarified that he mentioned the houses present on either side of the scene of offence and he did not show all the neighbouring houses in the street and that since it was only rough sketch, he mentioned the houses present on either side of the scene of offence and could not mention all the neighbouring houses in the street. PW.3 is none other than the son of one Periya. Admittedly, the deceased fell down near the house of Periya, while he was going towards the house of Periya. Gollamandla Thanda is not a city. It is a village,

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where the houses are situated side by side and every neighbouring owner will have access to see the scene of offence as the incident had taken place during the morning i.e., at 9:30 a.m. PWs.1 to 4 are the eye witnesses. The incident was clearly stated by them in their evidence and the manner of the attack made by the accused with the knife MO.3 on the deceased.

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34. The learned counsel for the appellant argued that there was a scuffle in between the accused and the deceased and it is evident from the evidence of DW.1. The evidence of DW.1 cannot be taken into consideration because DW.1 never informed the police that he saw the knife in the hands of the deceased. For the first time, he deposed before the Court that the deceased was holding a knife at the time of incident. Therefore, much importance cannot be given to his evidence.

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35. It is argued by the learned counsel for the appellant that if really PWs.1, 3 & 4 were present at the scene of offence when appellant was attacking the deceased, they should have averted the incident, but none have interfered with the appellant attacked the deceased. Therefore, their presence at the time of incident cannot be believed and they are not the eye witnesses to the incident. This contention of the appellant is not correct because MO.3 is a knife used by the appellant to attack the deceased. The appellant concealed MO.3 knife at the naval area before attack and all of a sudden, he removed the knife and attacked the deceased on his testicles and he gave two blows on the deceased and due to those blows, the deceased fell down on the ground. Thereafter, the appellant fled away when PW.3 tried to catch him. PW.1 in his evidence categorically stated that MO.3 is a butcher’s knife. In these circumstances, PWs.1, 3 & 4 cannot

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interfere and cannot avert the incident as contended by the learned counsel for appellant.

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36. It is further argued that there is delay in lodging the complaint and that delay was not explained by the prosecution, and there is delay in sending the First Information Report to the Court. PW.1 is an illiterate woman. After the death of her husband, Ex.P1 was drafted and the police station is at a distance of 7 KMs from the village and after seeing the death of her husband, whose body was lying on the road in front of her house, she might not have given the complaint in time and at that disturbed point of time, some one must not have told her to draft the report and the delay must have been taken place. Further, the person who registered the crime is the best person to explain the delay in dispatching the First Information Report to the Court. In the present case, the Assistant Sub Inspector of Police, who registered Ex.P1 is no more. Therefore, the delay in dispatching the First Information Report by itself is not fatal to the prosecution case when it is explained properly. Basing on this aspect, he relied on a case law reported in Yelchuri Manohar v. State of Andhra Prades h^[5] , wherein it is held as follows:

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“44. The First Information Report was lodged by P.W. 1 the Principal of the College, After coming to know of the ghastly incident, he instructed his office people to inform occurrence of the incident to police at the control room and after sending the victim girl to hospital he made enquiries, verified the names of the injured and the assailants from the registers and then lodged the complaint. We cannot find fault with him for taking abundant care that is expected of the head of an institution. The First Information Report was received at 1.00 p.m. and it reached the learned Judicial Magistrate of First Class at 7.45 p.m. The Investigating Officer explained the delay cogently in his evidence. The college students and the women organizations, as already stated earlier, took to streets and held Dharnas, Rastarokos etc., which created law and order problem in the entire city of Vijayawada. Extra police force was drawn from A.P.S.P.

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Mangalagiri and other places to control the situation. It is in that tense situation the delay of few hours occurred. We do not feel that this few hours delay is fatal to the case of the prosecution when it is explained properly. Accordingly, we do not see any considerable delay in F.I.R. reaching the learned Magistrate in the set of given circumstances.”

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37. Thus, the evidence of PWs.1, 3 & 4 clinchingly establish that the appellant having motive to kill the deceased, came to the house of the deceased on 22.10.2007 at 9:00 a.m, called the deceased and when deceased came out of the house along with his wife-PW.1, accused asked the deceased to send his wife along with him. Then, the deceased asked the accused to change his bad habits and then only he will send his daughter and started proceeding towards the house of one Peliya. At that time again, accused called the deceased as ‘Mamayya’ and when deceased turned back, accused stabbed the deceased with MO.1 on his testicles, due to which the deceased died due to the injuries. The evidence of PWs.1, 3 & 4 is cogent and consistent. There was some scuffle as admitted by the witnesses and that scuffle was only to show that the deceased must be preventing himself from further attack. The accused targeted the testicles of the deceased, which is also a vital part of the body and after receiving one blow, the deceased died. Therefore, the accused must have knowledge that the said injury would cause death. Therefore, he brought MO.3 on the date of incident and kept the same in the naval part of the body and called the deceased as ‘Mamayya’ and attacked him. Therefore, the evidence of PWs.1, 3 & 4 clearly establish that the accused stabbed the deceased with an intention to kill him and succeeded in his act. Therefore, the plea of the appellant to take lenient view for the offence punishable under Section 304 Part-II I.P.C is not sustainable.

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38. Thus, in view of the above discussion, we are of the view that the prosecution has established the guilt of the appellant/accused for the offence punishable under Section 302 I.P.C beyond all reasonable doubt and the trial Court after proper appreciation of the evidence on record, rightly convicted and sentenced the appellant/accused for the said offence and therefore, there are no reasons to interfere with the Judgment of the trial Court.

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39. Accordingly, the Criminal Appeal is dismissed confirming the Judgment, dated 11.09.2009 in Sessions Case No.100 of 2008 on the file of the I Additional District & Sessions Judge, Krishna at Machilipatnam. Miscellaneous Petitions, if any, pending in this Criminal Appeal shall stand closed.

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______________________ JUSTICE K.C.BHANU

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_______ JUSTICE ANIS

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Date: 04.03.2014. sr

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