Badi Guravaiah vs State of Andhra Pradesh

G. Radhakrishna Rao, J.—This is an appeal preferred by the sole accused in Sessions Case No. 216 of 1990, on the file of the Sessions Judge, Nellore, challenging his conviction for the offence u/s 302, I.P.C. and sentence of imprisonment for life, imposed by the learned Sessions Judge, Nellore by his Judgment dated 31st January, 1992.

The case of the prosecution is briefly as follows :- The deceased Venkatamma is the wife of the accused and P.W. 2 Munaiah is their son. P.W. 1 is the mother of the deceased. The accused suspected the fidelity of his wife, the deceased on the ground that she developed illicit contact with one Pamula Ramachandraiah (P.W. 6). About six months prior to the death of the deceased, the accused shifted his residence to Baddavolu and was residing with the deceased and his children in the house of Madduru Polaiah (P.W. 3) as a tenant. On 20th March, 1989 at about midnight P.W. 2 got up to answer calls of nature. He then heard his mother crying ''Oyammo, Oyinayano''. He, therefore, ran to his house and saw his father-accused beating his mother the deceased with a rice pounder. He immediately returned back, woke up P.W. 1 and reported to her what he saw. Meanwhile, P.W. 3 heard the shrieks of the deceased and went there and questioned the accused as to why his wife was crying. The accused replied him that he found his wife sleeping with P.W. 6 and therefore he slapped her. Thereupon he went and brought Kantrati Ramaiah and his wife Bujjamma (P.W. 4) to the house of accused. While they were approaching the house of the accused, P.Ws. 1 and 2 also joined them. P.Ws. 2, 3 and 4 saw the accused leaving the house and deceased lying naked and unconscious in a pool of blood with injuries on the head and cheek. With the assistance of P.W. 5 and some others, P.W. 1 took the deceased to Gudur and admitted her in the Government hospital for treatment. On the next day i.e., 21st March, 1989 at 4.30 a.m. the Civil Assistant Surgeon (P.W. 9) examined the injured and issued the wound certificate Ex.P-6. He sent intimation Ex.P-7 to the S.H.O., Guduru I Town P.S. to admit the injured Venkatamma in the Government Headquarters Hospital at Nellore. On receipt of Ex.P-6 intimation, P.W. 14 H.C. 97 of Gudur I Town P.S. proceeded to the hospital and as the injured was unconscious, he could not record her statement. He, therefore, recorded the statement of P.W. 1, Ex.P-1 and sent it to Manubolu P. S. with a memo on the question of jurisdiction, and admitted the injured in the Government Headquarters hospital, Nellore for treatment of the injuries sustained by her. P.W. 17 S.I. of Police, Manubolu registered a case in Crime No. 32 of 1989 u/s 324, I.P.C. against the accused on the basis of Ex.P-7 and issued F.I.R., Ex.P-15. On 25th March, 1989 at 6.10 a.m. the deceased expired while undergoing treatment in the hospital. On receipt of Ex.P-9 death intimation, P.W. 17 altered the section of law and issued express F.I.R. Ex.P-16. P.W. 18 Inspector of Police, Nellore Rural took over further investigation, held inquest over the dead body of the deceased in the presence of P.W. 8 and other panchayatdars. Ex.P-5 is the inquest report. P.W. 11 Civil Assistant Surgeon conducted post-mortem examination over the dead body of the deceased on 26th March, 1989 and issued Ex.P-10 post-mortem certificate. The doctor opined that the deceased died due to head injury, particularly to the brain and that the injuries found on the deceased were sufficient to cause death in the ordinary course of nature. After completing investigation, P.W. 18 laid the charge sheet against the accused.

In support of the case of the prosecution, P.Ws. 1 to 18 were examined and Exs.P. 1 to 16 and M.Os. 1 to 3 were marked. After the closure of the evidence on behalf of the prosecution, the accused was examined under S. 313, Cr.P.C. with reference to the incriminating material appearing against him. The plea of the accused is one of total denial. The accused further pleaded alibi stating that he was at Vidavalur on the date of the alleged occurrence. In support of his plea of alibi, he got examined one witness, D.W. 1.

During the course of investigation P.W. 17, the S.I. of Police seized M.O. 1 rice pounder, M.O. 2 blood stained earth and M.O. 3 control earth and prepared Ex.P. 4 observation report. There is no dispute with regard to the seizure of M.Os. 1 to 3.

P.W. 9 Civil Assistant Surgeon, Government Hospital, Gudur deposed that on 21-3-1989 at about 4-30 a.m. P.W. 1 brought her daughter the injured to the hospital with injured and he examined her and found a lacerated bone deep injury over left zygomatic area with contusion over the left face, the left eye being blackened and closed, and a lacerated skin deep injury over the left partietal area of the skull. He also deposed that the X-Rays revealed fracture of left fronto parietal bone and fracture of the left mandible. The doctor is of the opinion that injuries Nos. 1 and 3 are grievous in nature and injury No. 2 is simple and that the injuries could have been caused by blunt and heavy object like M.O. 1 Ex.P. 6 is the wound certificate issued by him. In his cross-examination the doctor stated that the above injuries cannot be caused by falling on a stone. P.W. 10 is the Civil Assistant Surgeon, Government Hospital Nellore and according to him, the injured Venkatamma was admitted in the hospital on 21-3-1989 at 8-00 a.m. and while undergoing treatment she died on 25-3-1989 at 6-10 a.m. and he sent Ex.P. 9 death intimation to Nellore Police. P.W. 11 is the Civil Assistant Surgeon, Government Head-quarters hospital, Nellore who conducted post-mortem examination over the dead body of the deceased Venkatamma on 26-3-1989 at 8-00 a.m. The doctor P.W. 11 found a sutured wound over the left parietal region, a sutured wound over the left zygomatic area and a contusion of the left side of the face with deformity of jaw of the left side. The doctor P.W. 11 is of the opinion that the deceased died due to head injury and in particular injury to the brain, that the injuries are ante-mortem in nature and that the injuries are sufficient to cause death in the ordinary course of nature. Ex.P. 10 is the post-mortem certificate issued by him. Thus, the medical evidence clearly establishes that the injuries found on the person of the deceased are ante-mortem in nature and that the death of the deceased is homicidal.

The evidence of P.W. 17 S.I. of Police is to the effect that he examined the scene of offence in the presence of P.Ws. 1 to 4 and 7. According to him, the scene of offence is a house in which the deceased and the accused with their children were living together. The evidence of P.W. 7 is to the effect that the S.I. of Police Manubolu examined the scene of offence, which is the house of the accused, in his presence and in the presence of one Thambi Penchalaiah, and Ex.P. 4 is the observation report. So there is no doubt that the scene of offence is in the house of the accused.

P.W. 2 Badi Munaiah is no other than the son of the accused and the deceased. He deposed that his parents and himself and his younger sister were living together in the house of one Polaiah, that on the night in question, his father asked him and his younger sister to go and sleep in the house of P.W. 1 and so they both went to the house of P.W. 1 and slept there. During night, he went to cow-dung heap nearby to answer calls of nature, and he heard the cries of his mother. He ran to the house and found his father beating his mother with a rice pounder. His mother was crying out "Oyammo Oyinayano". On seeing the beating, he ran to his grandmother (P.W. 1), woke her up and informed her that his father was killing his mother. Then himself and P.W. 1 ran to their house, and they found the accused running away through the trees. P.W. 4 and (Sic) came there and they found his mother lying unconscious on a mat (Sic) were injuries on her left cheek and on her head and there was pool of blood and M.O. 1 was near her. As already stated P.W. 1 is the mother of the deceased. She deposed that on the date of offence, during night time her grandson P.W. 2, who was sleeping in her house, woke her up and went out to answer calls of nature and saw the accused beating her daughter. Immediately they came out of the house and woke up P.W. 4 and another and all of them went to the house of the accused. P.W. 1 cried out that the accused killed her daughter by beating her. They found the deceased Venkatamma lying naked with injuries on her left cheek and head, and she was unconscious. P.W. 3 Pitchaiah deposed that at about 11-30 p.m. on the date of offence he came out of the house to pass urine and heard Venkatamma grasping for breath on making lot of noise with mouth. He stood near a tree and cried out the name of the accused and questioned him as to why his wife was suffering with breathlessness and making sounds. The accused came out and said that as his wife was sleeping with Pamula Ramachandraiah, he slapped her and that she received a bleeding injury. Then he went and woke up P.W. 4 and another Ramaiah and when all of them were coming towards the house of accused the accused came opposite to them. P.W. 4 abused the accused and the accused went away from that place. P.W. 4 Bujjamma deposed that at about mid night time P.W. 3 came to her house and informed them that Venkatamma was groaning. Then herself and her husband went to the house of the accused and found the deceased Venkatamma lying on the ground with bleeding injuries, and she was unconscious.

It is in the evidence of P.W. 1 that they took the deceased to the Government hospital, Gudur and the doctor examined her. The Police of Gudur came to the hospital and recorded her statement Ex.P. 1. Ex.P. 1 contains all the details as spoken to by P.Ws. 1 to 4. There is no improvement in Ex.P. 1. The evidence of P.W. 2 is amply corroborated by the evidence of P.Ws. 1, 3 and 4, to the extent of the accused coming out of the house and going from there and the deceased groaning in the house with injuries. P.W. 2 is a direct witness to the incident and according to him, as already stated above, during mid night he got up to answer calls of nature and to his horror he saw the accused beating his mother with a rice pounder. P.Ws. 1 to 4 were subjected to much cross-examination but nothing is elicited from them to discredit their testimony. In view of the convincing evidence of P.Ws. 1 to 4, the plea of alibi set up by the accused cannot be given any weight. The evidence of D.W. 1 also is not of any help to the accused as evidence of such type can be procured easily.

It is mainly contended by Sri. T. Balireddy, learned counsel appearing for the accused is that P.W. 2 is a child witness and his evidence ought not to have been accepted by the lower court. P.W. 2 is stated to be aged about 14 years by the date of giving evidence in court on 4-11-1991. P.W. 1 could not give the age of P.W. 2 though she stated that Munemma, the younger sister of P.W. 2 was aged about 13 years. She stated that Munaiah (P.W. 2) is elder than Munemma. The competence of a witness is determined by S. 118 of the Evidence Act. According to the said section, every person is competent to give evidence, except when the court considers that he or she is unable to understand the questions put to him or her or give rational answers. Such incompetency may arise from causes like tender years, old age, disease etc. The proviso to S. 5 of the Oaths Act prescribes that when a witness is a child under 12 years of age and the court considers that though he understands the duty of speaking the truth, he does not understand what oath means, the court may dispense with the administration of oath. But the Judge should always, when dispensing with an oath, make a clear record that he was satisfied that the child understands the duty to speak the truth and should also state his reason for thinking so. At certain times when the age of the witness is in border case and the court finds that the age of the so-called child witness is beyond 12 years, the age of the so-called child witness in this case being held to be about 14 years, and if the court proceeded with the recording of evidence of such a witness without preliminary examination by putting question to satisfy as to his competency can we say that no putting questions to a child witness to satisfy himself whether the witness is able to understand the questions and give coherent answers renders the evidence of child witness inadmissible or unreliable ? In our considered opinion the answer to the above question must be in the negative. We are fortified by Judgment of a Division Bench of this Court reported in Kumara Pedda Anjanaiah v. State 1972 AP 266. It is necessary to extract the relevant passage in that decision for a proper appreciation of the issue on hand. It runs as follows :-

"True, as stated by the counsel, the court did not indicate in the deposition of P.W. 1 whether it put questions to the child witness and whether it was satisfied that he knows the duty of speaking the truth, but it may be noticed that the learned trial Judge, in para 19 of his judgment has categorically opined that "they (P.Ws. 1 to 3) have given rational answers and they are found to be fully competent to testify." The trial Judge would not have recorded the evidence of P.W. 1 if he was not satisfied that the child understood the duty of speaking the truth before the court. The defence counsel did not raise any objection in this regard at the time of recording P.W. 1''s evidence. Had he raised the point, the trial court would have certainly recorded its opinion in this regard even before taking the evidence of P.W. 1. That apart, on a careful reading of the evidence of P.W. 1, we are satisfied that he is a competent witness and his evidence is admissible."

In Jai Singh Vs. State, it was held that omission of the trial Judge to put questions to a child witness to satisfy himself whether the witness is able to understand the questions and give coherent answers and to incorporate the preliminary examination in the record does not render the evidence of a child witness either inadmissible or unreliable. In yet another decision reported in Santosh Mandal Vs. State, it was also held that keeping of the record of preliminary examination of a child witness to assess its capacity to give evidence is not a condition precedent to the taking of evidence of a child witness. It is therefore clear that the evidence of a child witness recorded without putting a few preliminary questions to satisfy as to his competency cannot, as a matter of law, be treated as washed off the record altogether. Even on a careful examination of the answers given by the witness in his cross-examination, we are satisfied that the witness was in a position to understand the questions put to him and that he was in a position to understand the distinction between truth and untruth and that he was able to give coherent answers. On a reading of the entire evidence of P.W. 2, we are satisfied that the omission of the trial Judge to put preliminary questions to P.W. 2 to satisfy himself whether the witness is able to understand the questions and give coherent answers and his failure to incorporate the preliminary questions and answers in the deposition does not render the evidence of P.W. 2 either inadmissible or unreliable. No objection also appears to have been raised by the learned defence counsel at the time of recording the evidence of P.W. 2.

Another argument advanced by Sri. T. Balireddy, learned counsel for the accused is that P.W. 2 is only a child witness and he is easily amenable to tutoring and therefore his evidence cannot be taken into consideration. After careful scrutiny of the evidence of P.W. 2 with reference to the other attendant circumstances we are impressed with the evidence of P.W. 2. Further, his evidence finds ample corroboration from the evidence of P.Ws. 1, 3 and 4. When there is sufficient corroboration to the evidence of P.W. 2 and when his evidence gives the impress of truth, it cannot be said that simply because he is a child witness his evidence cannot be looked into. In In Re: Sheikh Umar Saheb alias Umra, it was observed as follows (at page 343; of AIR) :-

"Normally, a court should look for corroboration in such cases, but it is more, as already pointed by way of caution and prudence and not as a rule of law. Children are pliable and their evidence could easily be shaped and moulded. It is for this reason that a court should see whether there are any signs or indication of tutoring. If after carefully scrutinising the evidence, the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of such a child witness."

Although the unsworn testimony of a child is admissible, it must be received with great caution. Children of tender age, generally speaking, are pliable and their evidence can easily be shaped and moulded. They can be made to repeat glibly a story put into their mind. They do not possess the discretion to distinguish between what they have witnessed and what they have heard. It is, therefore, desirable that absolute reliance should not be placed on the evidence of a solitary child witness. One should look for corroboration of the same from other circumstances in the case. The tender years of the child, coupled with other circumstances appearing in the case, for example, its demeanour, unlikelyhood of tutoring and so forth, may render corroboration unnecessary. But that is a question of fact in every case. If, after carefully scrutinising the evidence, the court comes to the conclusion that there is a great impress of truth in it, there is no bar in law in the way of accepting the evidence of a child witness. The court should look for corroboration as a matter of caution and not as a rule of law. It must be remembered P.W. 2 is no other than the son of the accused. We cannot expect that unless he saw the incident, he would not have come forward and testify to what he actually witnessed. His evidence appears to be natural. Therefore, the contention of the learned counsel for the accused that the evidence of P.W. 2 cannot be taken into consideration does not hold good and has to be rejected.

The further contention of Sri T. Balireddy, learned counsel for the accused is that there is inordinate delay in FIR being reached the Magistrate. It is the evidence of P.W. 14 Head Constable working in Gudur I Police Station that after receipt of Ex.P. 7 intimation from the Government Hospital, Gudur at 5.00 a.m. on 21-3-1989, he proceeded to the hospital at 5.30 a.m. and recorded Ex.P. 1 statement from P. W. 1 and sent it to Manubolu Police Station along with a memo through P.C. 782 (P.W. 15) who handed over Exs.P. 1 and P. 7 in Manubolu P.S. at 9-00 a.m. P.W. 17 S.I. of Police deposed that on 21-3-1989 at about 9-30 a.m. while he was in the police station P.W. 15 brought Exs.P. 1 and P. 7 and he registered them as Crime No. 32/89 under S. 324, IPC and issued the FIR Ex.P. 15 and took up investigation. It is further in his evidence that on 25-3-1989 at 10-30 a.m. P.C. 535 of IV Town P.S., Nellore brought Ex.P. 9 death intimation and he immediately altered the section of law to S. 302, IPC and issued Ex.P. 16, FIR in the same crime number and sent the same to the Court. Ex.P. 16 FIR appears to have reached the court at 5-30 p.m. on 25-3-1989. Generally the FIRs registered under sections other than grave crimes like 302, IPC will be sent in regular course and the FIR registered under S. 302, IPC will be sent by express messengers. In this case the FIR was originally registered under S. 324, IPC on 21-3-1989 and subsequently on receipt of death intimation subsequently on receipt of death intimation on 25-3-1989 the section of law was altered to S. 302, IPC and altered FIR was sent on 25-3-1989 which reached the court on the same day. In the connection we may refer to the decision of the Supreme Court reported in Pala Singh and Another Vs. State of Punjab, wherein it was observed as follows (at page 62; of Cri LJ) :-

"But when we find in this case that the FIR was actually recorded without delay and the investigation started on the basis of the FIR and there is no infirmity brought to our notice then, however, improper or objectionable the delayed receipt of the report by the Magistrate concerned, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution unsupportable."

In yet another case reported in Sarwan Singh and Others Vs. State of Punjab, the Supreme Court observed that mere delay in despatch of the FIR is not a circumstance which can throw out the prosecution case in its entirety. Mere delay in receipt of the FIR by the Magistrate by itself is not fatal to the prosecution provided it was lodged with the police without any delay and investigation commenced on that basis, unless it is proved that the delay has been given room to concoction. However, the delay has to be considered in the particular facts and circumstances of each case. In this case, immediately after the incident P.W. 1 went to the hospital taking her injured daughter on the very same night at 4-30 a.m. After examining the injured P.W. 9 sent Ex.P. 7 intimation to the police of Gudur Town P.S. P.W. 14 proceeded to the hospital at 5-30 a.m. on the same night and recorded the statement Ex.P. 1 from P.W. 1. So practically there is no delay in giving the FIR. Immediately after receipt of Ex.P. 1 and P. 7, P.W. 17 registered the case and started investigation. The very fact that the injured was sent to the hospital immediately and the statement Ex.P. 1 was recorded at 5-30 a.m. itself shows that prompt action was taken in the matter. In these circumstances, the mere delay in despatch of the FIR is not a circumstance which can throw the case of the prosecution in its entirety.

On a careful consideration of the entire evidence on record we find that it is the accused alone who has caused the injuries to the deceased which ultimately resulted in her death. The nature of injuries sustained by the deceased, particularly the injury to the brain and the nature of weapon used and time chosen by the accused all indicate that the accused intended to cause the death of the deceased suspecting her fidelity.

For the above reasons we find that the learned Sessions Judge is perfectly right in convicting the accused for the offence under S. 302, IPC and sentencing him to suffer imprisonment for life and we see no reason to interfere with the same.

In the result, the Criminal Appeal is dismissed and the conviction and sentence of the accused, as imposed by the learned Sessions Judge are confirmed.

Appeal dismissed.