N.K. Obelesu vs The State of A.P.

M. Ranga Reddy, J.—The sole accused in S.C.No.104/89 on the file of the Sessions Judge, Cuddapah who was convicted of offences under Sections 302 and 307 of the Indian Penal Code and sentenced to undergo imprisonment for life and ten years respectively, has preferred this appeal against the said conviction and sentence.

The substance of accusation against the appellant was that on 20th February, 1987 at about 11 a.m., the appellant entered into the motor-shed of Ugram Balaiah in the fields of Gangavaram and caused injuries to Subbarayudu (P.W.1) with intention to cause his death and at the same time intentionally caused the death of Obulmma, hereinafter referred as the "deceased", by inflicting injuries with a dagger.

The prosecution in order to establish the guilt of the accused, examined as many as 11 witnesses. The case of the prosecution as disclosed from the evidence of these witnesses is in brief as follows.

The deceased is the wife of P.W.1. They were residents of Pedda Pasupula village of Jammalamadugu Mandal. About five months prior to the date of offence (20-2-1987), they migrated to Kamalapuram to eke out their livelihood. They were residing in the motor-shed of one Ugram Balaiah situated in the fields of Gangavaram. The appellant was a resident of Kamalapuram and he was a rickshaw-puller. He got acquainted withP.W.1 and his wife and used to vist their house frequently. About three days prior to the occurrence, the appellant visited the shed where P.W.1 and his wife were residing and pelted stones at P.W.1. On the date of offence, the appellant misbehaved with the deceased and so, the deceased beat him with chappals. On the night of occurrence while the deceased and her husband P.W.1 were sleeping in the motor shed of Khader Basha bolting the doors from inside, the appellant went there, removed the latch from outside and entered the shed. P.W.1 and the deceased woke up and saw the appellant. The appellant was then armed with a dagger. He went towards P.W.1, stabbed him with the dagger on his stomach, back chest and on his hands. Then they both grappled with each other. In the meanwhile, the deceased tried to intervene and the appellant then stabbed her on the lower part of the abdomen on the right side with the dagger. P.W.1 then raised cries. On bearing the cries, Nagappa and Lalappa who were nearby, came there. The appellant then ran away, but P.W.1 chased him and grappled with him. The appellant again stabbed P.W.1 on his stomach and on his back with the dagger. This was at a distance of 10 yards away from the shed where they were sleeping. The appellant then wriggled out from the clutches of P.W.1 and then ran away. P.W.1, Nagappa and Lalappa carried the deceased to the Government Hospital at Kamalapuram which is at a distance of about three miles. On reaching the hospital, they found the deceased dead. P.W.1 kept Lalappa and Nagappa at the dead body in the hospital, went to the police station and gave a report Ex.P.1 to the Sub Inspector of Police, P.W.9 at about 12-30 a.m. on 21-2-1987. P.W.7 registered the same and issued express F.I.Rs. to all the concerned. Ex.P.7 is the copy of F.I.R. sent to the Magistrate. He then seized M.Os.9 and 10, blood stained clothes, from P.W.1 and then proceeded to the Government Hospital, Kamalapuram and reached there by about 2.15 a.m. and found the dead body of the deceased in the verandah of the hospital. There, he examined P.W.1, Nagappa and Lalappa and recorded their statements. Then, he proceeded to the scene of offence and inspected the same in the presence of P.Ws.7 and 8 at about 7.45 a.m. The scene of offence, according to him, is the shed of Khader Bhasha. He prepared a mahazar showing the observations made at the scene of offence in the presence of P.Ws.7 and 8 and recovered M.Os. 4 to 8 under Ex.P.6.

P.W.10 the Inspector of Police, Yerraguntal, received copy of express F.I.R. on 21-2-1987 at 8.15 a.m. He then proceeded to the Hospital at Kamalapuram, reached there by 9 a.m. and took up investigation from P.W.9. He held inquest over the dead body of the deceased between 9 a.m. and 12 noon and Ex.P.2 is the inquest report. P.W.5 the Civil Assistant Surgeon, Government Hospital, Kamalapuram examined P.W.1 on 21-2-1987 at 1.45 a.m and found seven lacerated wounds on his person as mentioned in Ex.P.3, would certificate. Later P.W.10, the Inspector of Police issued a requisition to the Medical Officer for conducting postmortem examination over the dead-body of the deceased. P.W.6 conducted post-mortem examination over the dead body of the deceased on the same day at 2.30 p.m. and found the following external injuries:

An incised wound of 5 c.m. x 2 c.m. transversely placed over the upper part of medial side of right thigh of bone deep present surrounding black brown discolouration of skin present.

An abrasion of 1 c.m. x 5 c.m. over the upper part of medial side of left thigh present.

On internal examination, he found rupture of femoral vessels of right thigh present with surrounding clots corresponding to external injury No. 1. He opined that the deceased died of shock and haemorrhage due to rupture of blood vessels and also opined that the injuries are ante-mortem. Ex.P.5 is the postmortem certificate issued by the Medical Officer.

The appellant was arrested by P.W.10 on 1-4-1987 near Ashoks lodge at Cuddapah in the presence of mediators - P.Ws.7 and 8. In pursuance of the information given by the appellant, a dagger M.O. 11 was recovered under Ex.P. 10 in the presence of P.Ws.7 and 8. After completion of investigation, the charge sheet was filed.

The plea of the accused is one of total denial.

From what has been stated above, it is clear that the entire prosecution case rests on the solitary evidence of P.W.1. Nagappa who is alleged to have gone near the scene of offence immediately after the incident on hearing the cries of P.W.1 died, by the time the case came up for trial. So, he could not be examined. The other witness Lalappa was not examined by the prosecution. The learned Sessions Judge accepted the evidence of P.W.1, found the accused guilty of the offences under Sections 302 and 307 of the Indian Penal Code, convicted and sentenced him as mentioned above. Aggrieved by the said conviction and sentence, the appellant preferred this appeal.

So, the point that arises for consideration in this appeal is whether the evidence adduced by the prosecution establishes the guilt of the accused beyond all reasonable doubt?

The learned counsel for the appellant contended that there is no consistency regarding the place of occurrence between what has been stated in the charge and what P.W.1 has stated in his evidence. Apart from that, it was contended that P.W.1 had stated that he was stabbed with a dagger on his stomach, on his back and on his chest and while running away when he tried to catch hold of the accused, he was again stabbed by the appellant on his stomach and on his back. But the wound certificate issued by P.W.5 in respect of the injuries found on P.W.1 do not probabilise any such attack as spoken to by P.W.1. So, it was contended that he is not a truthful witness and that it is not safe to base a conviction on the uncorroborated testimony of such witness. We find that there is much force in these contentions. It is clear from the evidence of P.W.7 that there are two engine-sheds - one belonging to Khader Bhasha and another belonging to Ugram Balaiah - in the fields of Gangavaram. According to the charge, the incident took place in the shed of Ugram Balaiah in the fields of Gangavaram. But the entire evidence of P.W.1 is to the effect that the incident took place in the shed of Khader Basha. Apart from that, it is clear from the evidence of P.Ws.6 and 7 that they were present when the Sub Inspector of Police, P.W.9 visited the engine shed of Khader Bhasha and it is from there, the incriminating material suggesting the commission of offence were recovered by the police. There is no explanation by the prosecution as to how this discrepancy as regards the scene of offence had taken place. It is not as if Khader Bhasha and Ugram Balaiah together own one motor shed and for that reason, one describes it as Balaiah''s shed at one place and as Khader Bhasha''s shed at different place. It is clear from the evidence of P.W.7 that there are two different sheds belonging to Khader Bhasha and Ugram Balaiah. Thus, there is any amount of inconsistency even with regard to the place of occurrence.

The evidence of P.W.1 is to the effect that the appellant immediately after entering into the shed in the night on 20-2-1987, attacked him with a dagger and caused injuries oh his stomach, back and chest, but there are no corresponding stab injuries on the body of P.W.1 as is evident from the wound certificate issued by P.W.5. P.W.5 noticed only lacerated injuries on the person of P.W.1 and that too, the location of those injuries do not correspond to the places where he was alleged to have been stabbed. Apart from that, P.W.1 has further stated that while the accused was running away, he chased him and again he was stabbed on the stomach and on the back. Thus, there is no consistency between the oral evidence and the medical testimony. Except the evidence of this witness, there is no other evidence which connects the accused with the commission of the offence. This evidence of P.W.1, in view of the circumstances mentioned above, in our opinion, cannot be accepted and it is unsafe to place any reliance on such testimony for basing a conviction particularly when it is not corroborated by any other evidence.

Further, there is the evidence of P.W.10 that he recovered M.O.11 dagger alleged to have been used in the commission of offence in pursuance of the information given by the accused. This recovery, according to P.W.10, was made in the presence of P.Ws.7 and 8. But unfortunately, the evidence of P.Ws.7 and 8 is totally silent on this aspect. So even the recovery of the incriminating weapon cannot be accepted. Under the circumstances, we find that there is no sufficient reliable legal evidence on the basis of which, the conviction of the accused could be sustained. We therefore, find that the learned Sessions Judge erred in accepting the testimony of P.W.1 and holding the appellant guilty of the offences under Sections 302 and 307 of the Indian Penal Code. The appeal is therefore, allowed the conviction and sentence imposed on the appellant are hereby set aside and the appellant shall be set at liberty forthwith, if not required in any other case.