India Mariyadass vs The State of Andhra Pradesh

L. Narasimha Reddy, J.—This appeal is filed by accused No. 2, in SC No. 346 of 2003 on the file of the VI Additional District and Sessions Judge, Prakasam at Markapur. Through its judgment dated 27.06.2006, the Trial Court held A-1 and A-2 guilty of the offence punishable u/s 302, read with Section 34, IPC and imposed punishment of imprisonment for life and fine of Rs. 200/- each, in default to undergo simple imprisonment for three months. In addition to that A-2 was found guilty of offence punishable u/s 324 IPC and imposed punishment of rigorous imprisonment for one year. Both the sentences passed against A-2 were directed to run concurrently. It is necessary to mention that A-1 filed Criminal Appeal No. 1646 of 2006 before this Court and a Division Bench of this Court dismissed the same through judgment dated 20.08.2009.

The case of the prosecution, as presented before the trial Court, is as under:

A-1 is the father of A-2 and he was involved in a criminal case. Few days before the date of occurrence i.e. on 03.09.2002, the police party headed by PW-5 proceeded to the Village of Nandamuri Nagar, hamlet of Kellampalli village, Prakasam District. On finding that A-2 is not available in his house, PW-5 asked A-1 about the whereabouts of A-2. A-1 replied that A-2 has gone to another place i.e. Srinivasa Nagar Colony and when the police party did not believe that statement A-1 asked PW-5 to confirm with the deceased, a resident of their village. The police took A-1 in their jeep and stopped at the house of the deceased and that when the deceased was asked about the whereabouts of A-2, he said that he does not know anything about him. The police found the version of A-1 about A-2 was not true and accordingly he was taken in a jeep upto some distance.

It was alleged that A-1 and A-2 had a grievance about the deceased not supporting the version of A-1 and they hatched a plan to finish him. On the intervening night of 8/9-09-2002, A-1 and A-2 have gone to the house of the deceased, when he was sleeping in his house in a cot, together with his minor son - PW-3. Wife of the deceased - PW-2, was sleeping in a nearby place whereas the second son, a child, was sleeping in the cradle. A-1 and A-2 identified the deceased after lifting the blanket, A-2 stabbed on the left ear portion of the deceased with knife and caused bleeding injury and soon thereafter, A-1 stabbed the deceased with spear on the same portion. The deceased succumbed to the injuries on the spot. It is also alleged that when PW-2 raised cries and tried to interfere, A-1 caught hold of her throat and stabbed her on her forehead and caused bleeding injuries.

On receiving information from the village servant, PW-1 submitted a complaint to the police in the early hours of 09.09.2002. PW-8 - Station House Officer of P.S., Mundlamur, received the complaint and registered Crime No. 60 of 2002. Investigation was taken up by the Sub-Inspector of Police - PW-10. Scene of offence panchanama was conducted, inquest and post mortem report were obtained. Further investigation was conducted by the C.I. of Police and a charge sheet was filed. The trial Court framed the following charges:

FIRSTLY: that A1 and A2 of you on the intervening night of 8th and 9th day of September, 2002 at about 1.00 hours at the house of the deceased in Nandamuri Nagar in furtherance of your common intention did commit the murder of the deceased Dupati Narayana S/o. Vankata Swamy, intentionally by causing his death by stabbing the deceased wit a knife on his left ear by A2 of you and by stabbing the deceased with a spear on his left ear portion by A1 of you and A1 and A2 of you thereby committed an offence punishable u/Sec. 302 IPC and within my cognizance.

SECONDLY: That A2 of you on the same day at the same time and at the same place mentioned in Charge No. 1 voluntarily caused hurt to LW.2 Dupati Subbamma on her head by means of knife which is an instrument of stabbing when LW.2 came to the deceased raising hue and cry at the time of commission of murder, and thereby A2 of you committed an offence punishable u/Sec. 324 IPC and within my cognizance.

THIRDLY: That A2 of you on the same day and at the same time and at the same place mentioned in Charge No. 1 in furtherance of your common intention A2 of you causing hurt to LW.2 Dupati Subbamma on her head by means of knife which is an instrument by stabbing, and you thereby committed an offence punishable u/Sec. 324 R/W. 34 IPC.

After the trial, learned Sessions Judge convicted both the accused for the offence u/s 302 IPC and A-2 was further convicted for the offence u/s 324 IPC.

Ms. P.S. Manjula Kumar, learned counsel for the appellant submits that no independent witness was examined to prove the allegation against the accused and the trial Court has rested its conclusions on the evidence of PW-2, who is none other the wife of the deceased. She submits that PW-3, a child witness, categorically admitted that he was tutored by the police and the same ought to have resulted in acquittal of the accused, and in particular, of A-2. She further argued that for all practical purposes, PW-3 has turned hostile and its impact was not at all taken into account, by the trial Court.

Learned Public Prosecutor, on the other hand, submits that the prosecution has proved the involvement of both the accused, beyond any pale of doubt. She contends that the eye witness account of an injured witness, PW-2, can not at all be doubted and that the other evidence on record has corroborated it.

Both the accused and the deceased are from the same village. The motive attributed to the accused for causing death of the deceased is that the latter did not cooperate with the former in the context of furnishing information to the police as regards the whereabouts of A-2.

The complaint, no doubt, was submitted by PW-1 - Village Secretary. He was subjected to extensive cross-examination. Having regard to the fact that the role of that witness is very limited, it is not necessary to refer to the evidence, once the factum of death of the deceased due to homicide is not disputed.

The entire case rests upon the evidence of PW-2 - wife of the deceased. PW-3 was a minor when the incident occurred and he was examined in the Court. In the chief examination in the Court he has spoken to the occurrence of the incident. In the cross-examination certain answers were elicited from him which otherwise would be beneficial to the accused. Having regard to the age of the witness, we do not propose to give credence to his deposition either way.

PW-2 stated that few days prior to the incident A-1 and a police party came to her house and the deceased was asked as to whether the statement of A-1 that A-2 has gone to some other place is correct. The deceased is said to have replied that he does not know the whereabouts of A-2, and on that A-1 and A-2 are said to have been dissatisfied. On the following day when deceased went to tea stall, the wife of A-1 is said to have came there and tore off the shirt of the deceased into pieces and kicked him in the presence of the Sarpanch, stating that a positive answer by him would have deflected the attention of police. On the date of occurrence, A-1 and A-2 are said to have come to her house at about 1.00 a.m. when the deceased, herself and children were sleeping, and identified the deceased by removing the blanket. Thereafter, A-1 is said to have stabbed the deceased with a spear near the left ear and A-2 made similar attack on the deceased. She further stated that when she interfered, A-1 is said to have caught hold of her at the neck and stabbed on head with knife. She was subjected to extensive cross-examination. However, nothing objectionable or inconsistent was elicited from her. Further Ex.P-13, a wound certificate, issued in relation to PW-2 discloses that she received inside wounds on the head. The doctor, who examined her, opined that the injury would have been caused by a sharp object.

The investigating officer - PW-10 has also provided various links in the entire event in his chief examination. The cross examination was mostly about the evidence of PW-3.

Since A-1 and A-2 on the one hand and the deceased on the other, did not have any prior disputes, it becomes necessary to ascertain as to whether there exits any motive for the accused to commit the murder of the deceased. The evidence of PW-5 assumes significance in this behalf. He is the police official, who has gone to the village to apprehend A-2 in relation to a crime. On finding that A-2 was not available there, he is said to have verified from A-1 and when a reply was given to the effect that A-2 has gone to a different village, PW-5 suspected the version. It is with a view to seek confirmation from the deceased that A-1 has taken the police to the house of the deceased, and the deceased is said to have pleaded ignorance about A-2.

PW-2 in her evidence stated that dissatisfied with the manner in which the deceased acted when PW-5 visited the village, the mother of A-2 and wife of A-l is said to have scolded the deceased in filthy language, tore off his shirt and kicked him on the testicles in the presence of Sarpanch - PW-4. Though PW-4 turned hostile, the fact that in his presence the deceased was attacked by the mother of A-2, can certainly be culled out.

Coming to the occurrence as such, PW-2 was consistent throughout. The injuries received by her, speak about her presence at the time of incident. Her version about the nature of injuries would further fortify the presence of A-1 and A-2, particularly, when the description of the event was graphic. A doubt was expressed by the accused as to the ability of PW-2 to identify the persons in the middle of the night. The answer to that was that the street was illuminated with lights and A-1 and A-2 were already acquainted with PW-2.

It is true that PW-3, a juvenile witness, was not able to maintain consistency throughout. In fact, that is anticipated from any juvenile witness. Notwithstanding the nature of answers elicited from PW-3, his presence at the time of occurrence was not at all doubted and there is nothing to disbelieve what he has stated in the chief examination. The cross examination was mostly devoted to extract an answer to the effect that he was tutored by the police. The child would not be in a position to differentiate between what is tutoring and what he has to state. At the most, the police may have ascertained from PW-3 and gave him the instructions to be consistent. The witness has no enmity against A-1 and A-2. All the same, we do not give much credence to his evidence.

It has already mentioned that Criminal Appeal No. 1646 of 2006 filed by A-1 was dismissed. The role attributed to A-1 in the incident is much wider viz., in addition to the offence u/s 302 read with 34 IPC, he caused injuries to PW-2. The same evidence covers the involvement of both the accused. Once the appeal filed by A-1 is dismissed, hardly any grounds exist for acquittal of A-2. We do not find any ground to interfere with the conviction and sentence ordered by the trial Court against A-2.

The Criminal Appeal is, accordingly, dismissed.