G. Mangaiah vs State of A.P.

RMB, J.—The sole accused in Sessions Case No.510 of 1996 who was tried by the Additional Sessions Judge, Ongole is the appellant herein. The accused-appellant was tried for causing murder of D-1 and D-2 and also attempting to commit murder of his wife Anasuya (P.W.1). On evidence the learned Judge found that the prosecution was able to bring home guilt of the accused, and therefore, he proceeded to convict the accused-appellant and sentenced him on two counts u/s 302 IPC and on each count, he was sentenced to undergo imprisonment for life and to pay fine of Rs.500/-, in default to undergo simple imprisonment for three months. The learned Judge further convicted the accused-appellant of the offence punishable u/s 307 IPC and sentenced him to suffer imprisonment for five years and to pay fine of Rs.500/-, in default to undergo simple imprisonment for three months. The substantive sentences imposed upon the accused-appellant were made to run concurrently.

It is alleged by the prosecution that on 25-11-1995 in early hours i.e., at about 4.00 a.m. the accused killed his two children and attempted to commit murder of his wife suspecting her fidelity and also suspecting the legitimacy of the children. The prosecution case be briefly narrated as follows:

P.W.1 Gorli Anasuya was residing in a hut in a locality known as Kabela in Chirala Town along with her two children i.e., Gorli Durga Prasad - hereinafter referred to as D-1 and Gorli Suneetha - hereinafter referred to as D-2 and also along with her husband. Originally this family belongs to Srikakulam District, but about 6 years prior to the incident, they shifted to Chirala for eking out their livelihood. It is further stated by the prosecution that about 20 more persons who also belong to Srikakulam had shifted their residence to Chirala and they are residing in the same locality.

The accused in this case who happened to be the husband of P.W.1 was a Rickshaw puller and he was supporting his family, whereas P.W.1 was doing coolly work. In all the accused and P.W.1 had four children, but two of his children were residing with the sister of P.W.1 at the time of the incident. Therefore, at the time of the incident the family of the accused and the deceased consists of 4 persons in all. Since one month prior to the incident, the accused was not feeling well, and therefore he had stopped pulling Rickshaw and was resting at home. But the main reason for stopping Rickshaw pulling was that he was suspecting the fidelity of his wife and probably the accused wanted to watch her activities.

On the date of incident i.e., 25-11-1995 the accused and the members of his family were sleeping, but the accused could not get sleep. He woke up at about 4.00 a.m. and he has also woken up his wife, P.W.1 and assaulted her with an iron pipe causing injuries to her. On getting the hit on the head, she started shouting and crying. On hearing her shouts, the neighbours appeared at the scene of offence. P.W.1 was removed to the Hospital for treatment. She was informed regarding the death of her two children.

It appears from the record that when P.W.1 admitted to the Hospital, Hospital people sent intimation to P.W.11 Sub Inspector of Police, Chirala I Town Police Station on 25-11-1995 at about 8.00 a.m. On receipt of intimation, Ex.P.23 from the Government Hospital, P.W.11 proceeded to the Hospital and recorded the statement of P.W.1 which is treated as FIR, Ex.P.1. On the strength of Ex.P.1 the offence came to be registered against the accused in Crime No.210/95 u/s 307 IPC and on the death of both the children, Section 302 IPC was added. P.W.11 gave information regarding the offence to all the concerned.

P.W.12 Circle Inspector of Police, on receipt of copy of FIR at about 9.45 p.m. took up investigation and visited the Government Hospital, Chirala, where he found P.W.1 and deceased No.2 undergoing treatment. He once again recorded the statement of P.W.1 in the Government Hospital and proceeded to the scene of offence, where P.Ws.2 and 3 handed over the accused to him. P.W.7 happened to be a Municipal Councillor. He also rushed to the scene of offence. Meanwhile the second child also died. Therefore, P.W.12 conducted inquest over the dead body of the deceased in the presence of P.W.7. The inquest report in respect of D-1 is produced on record as Ex.P.16 and the inquest report in respect of D-2 is produced on record as Ex.P.18. After inquest panchanama was over, both the dead bodies were sent for conducting autopsy. P.W.10 Civil Assistant Surgeon, Area Hospital, Chirala conducted Post mortem examination on the dead body of D-1 and issued post mortem certificate, Ex.P.21. Then P.W.8 conducted post mortem examination on the dead body of D-2 and issued post mortem certificate, Ex.P.19. P.W.10 had also examined P.W.1 and issued Ex.P.22 wound certificate. The accused was arrested and it is stated that when the accused was in policy custody, he expressed his willingness to discover certain articles. The statement of the accused was recorded and he discovered certain articles. The statement of the accused is placed on record as Ex.P.27. Thus on completion of investigation, charge sheet was filed.

In order to prove the fact that D-1 and D-2 died homicidal death, prosecution relied upon the evidence of P.W.12 and P.W.7. P.W.12 happened to be Circle Inspector of Police who had conducted inquest over the dead body of D-1 and D-2 in the presence of P.W.7. The inquest report in respect of D-2 is produced on record as Ex.P.18 and in respect of D-1 at Ex.P.16. P.W.8 conducted autopsy over the dead body of D-2 and noticed the following external injuries on the person of D-2.

"1. A reddish oblique lacerated injury on the fore head right side of size 1.25 cm x .75 cm x .5 cm. Cut section ache moses present.

Abraded contusion on the right back of chest of size 1x.75 cm x .25 cm. Cut section ache moses present.

Diffused swelling over the back over right side of the heart on axpeto parietal region of size 10.75 cm x 5.25 cm. Cut section deep haematoma present.

Contusion on the right thigh of size 3.25 cm x 2.5 cm reddish in colour.

Abraded contusion over the right posterior aspect of the right elbow joint of size 2.75 cm x 1.25 cm."

The Doctor opined that the injuries caused to D-2 were within 12 hours prior to the post mortem examination and all injuries noticed by her are ante mortem and were sufficient in the ordinary course of nature to cause the death. She issued Ex.P.19 post mortem certificate.

The post mortem examination on D-1 was also conducted by P.W.10 and she noticed the following external injuries on the person of D-1.

"1. Lacerated injury 3 cm x 1 cm x bone depth over the left frontal area.

Lacerated injury 3 cm x 1 cm x skin depth over the occipital area.

Laceration involving both lips of 1.5 cm. Length at the left angle of left mouth.

Lacerated injury 1 cm x .5 cm up to bone over the medial of angle of left eye.

Incised wound 1 cm x .5cm x auricle depth over the middle of left auricle.

Lacerated injury 1.5 cm x .5 cm x skin depth over the middle of front of neck.

Lacerated injury 5 cm x 2 cm x skin depth over the right inguinal area.

Abrasion 2 cm x 1 cm over the back of right fore arm.

Ex.P.21 is the post mortem certificate.

Considering the entire evidence, on the point of homicidal death, we hold that D-1 and D-2 did die homicidal death.

Now the point arises for consideration as to whether the prosecution was able to connect the accused with the crime by leading other set of evidence. The prosecution relied upon the evidence of P.Ws.1 to 12 and produced certain documents. They were marked as Exs.P.1 to P.30. Out of 12 witnesses, P.Ws.1 to 6 claimed to be eye witnesses to the incident. Unfortunately, P.Ws.2 to 6 did not support prosecution in any manner. In their evidence all the eye witnesses stated that on hearing the shouts and commotion of P.W.1, they rushed to the hut of the accused. Some of the witnesses have stated that they have seen P.W.1 with injuries and D-1 and D-2 with bleeding injuries and they did not speak about the presence of the accused at the scene of offence, whereas the two eye witnesses i.e., P.Ws.5 and 6 speak about the presence of the accused at the scene of offence when P.W.1 was lying on the ground with bleeding injuries, but no overt act is attributed by these witnesses to the accused.

While commenting upon the evidence of P.Ws.2 to 6, the learned defence counsel Mr. S. Kuljeet Singh submitted at the bar that the evidence of P.Ws.2 to 6 has to be discarded in toto as they have not supported the prosecution; whereas the learned Public Prosecutor rebutting the argument of the learned counsel for the defence submitted at the bar that it is well established proposition of law that even if the witnesses are declared hostile and permission accorded to the Prosecutor to put questions in the nature of cross-examination to such witnesses, their evidence cannot be brushed aside in toto. The evidence which favours prosecution has to be accepted. We have no hesitation in accepting the legal proposition made by the learned Public Prosecutor. But in the present case as we have already stated that only the presence of accused was established through the mouth of P.Ws.5 and 6, whereas P.Ws.2 to 4 did not speak about the presence of the accused at the scene of offence. Thus, we have two versions on record i.e., the version of P.Ws.2 to 4 who did not speak about the presence of the accused at the scene of offence, whereas P.Ws.5 and 6 speak about the presence of the accused at the scene of offence. With these two contradictory versions on record, we have to see which version has to be accepted. It is also well settled law that if there are two contradictory versions, then any version which is favourable to the accused has to be accepted. Therefore, relying upon such legal proposition, we hold that the prosecution did not establish the presence of the accused at the scene of offence through the evidence of P.Ws.2 to 6.

Now we have to scrutinize the evidence of P.W.1 who happened to be an eye witness to the incident. P.W.1 stated that on the date of incident i.e., on 25-11-1995 in early hours she was woken up by her husband and gave a hit on her person with an iron pipe and when she shouted, neighbours rushed at the scene of offence and she was removed to the Hospital. Therefore, the evidence of P.W.1 also did not establish that the accused was responsible for causing the death of D-1 and D-2. But the evidence of P.W.1 clearly establishes that the accused had made a murderous attack on her with an intention to kill her, but unfortunately P.W.1 survived. This is all the evidence, which was brought on record by the prosecution.

Considering the entire evidence, as discussed above, we are of the considered view that the conviction recorded against the accused-appellant of the offence punishable u/s 307 IPC can be sustained and it is hereby sustained; whereas the conviction recorded against the accused-appellant of the offence punishable u/s 302 IPC on two counts is hereby set aside.

The Criminal Appeal is allowed to the extent indicated above.