Vasthrala Subba Rao @ Budabukkala Subba Rao vs State and another

N.Y. Hanumanthappa, J.—This is an appeal filed by the accused u/s 374(2) read with Section 383 of the Criminal Procedure Code aggrieved by conviction and sentence passed by the learned Sessions Judge, West Godavari, Eluru on 5-1-1995 in Sessions Case No.67 of 1994 convicting the accused for the offence u/s 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life.

A few facts as told by the prosecution, which are necessary to dispose of this appeal, are as follows :

Appellant/accused is a native of Chagallu village and residing at Koyyalagudem. He had illicit intimacy with Kagithala Vimala of Koyyalagudem. A few days earlier to the incident, the deceased refused to give money to the accused/appellant and was also not allowing him to come to her. On 25-3-1993 at about 9.00 p.m. while the deceased and her daughter PW1 were returning home and reached the electric pole near Junior College, Accused/appellant came and hacked the deceased to death with a knife and ran away. PW1 and 2 witnessed the incident. PW1 immediately went to Koyyalagudem Police Station and her statement was recorded under Ex.Pl by PW8, The then incharge Asst. Sub-Inspector of Police, Koyyalagudem has registered a case in Crime No.32 of 1993 u/s 302 of the Indian Penal Code. FIR was issued under Ex.P13 and the copies of FIR were sent to all the concerned. PW8 passed on the information to PW10, the Circle Inspector of Police, Jangareddigudem. On receipt of information, PW10 proceeded to Koyyalagudem and took-up further investigation. He examined PW1 and recorded her statement and he enquired about the accused/appellant and he was found absconding. On 26-3-1993, he visited the scene of offence at 6.30 a.m. and drew mahazar and examined panch witnesses to the scene of offence in the presence of PW6 and another and prepared scene of offence panchanama under Ex.P9 and then seized MO1Q cloth piece with button and he also drew a rough sketch of the scene of offence under Ex.P18 and also seized blood stained earth and controlled earth and 15 yellow coloured bangle piece under MO7 and he held inquest over the dead body of the deceased in the presence of PW6 and another under Ex.PlO. Thereafter, the body of the deceased was sent to post-mortem examination through Police Constable PW7 and PW5, Medical Officer, Government Hospital, Jangareddigudem conducted post-mortem examination on the dead body of the deceased and issued post-mortem certificate under Ex.PS. The Doctor gave opinion as to the cause of death of the deceased as due to secondary shock due to loss of blood from the neck injury leading to cardio-respiratory failure. On 6-6-1993 in the presence of PW6 and another at Makam shed of Amirisetti Pullaiah near Seetharamudu tank PW10 seized the shirt. He recorded the confessional statement of the accused and then, accused lead PW6 to the shed situated at outskirts of Koyyalagudem and taken out MO1 knife from the hut and the same was seized under the cover of mediators report under Ex.P12. He gave a requisition to sent the properties to the chemical examiner. PW9, the sub-Divisional Police Officer, Jangareddigudem forwarded the material objects MOs.1 to 10 along with letter of advice Ex.P15 and Ex.P17 is the chemical examiner''s report. PW10 after completing the investigation filed charge-sheet in Crime No.32 of 1993 for an offence u/s 302 IPC before the II Additional Judicial First Class Magistrate, Kovvur. As the offence alleged was the one exclusively triable by the Sessions Judge, the learned Magistrate committed the case to the Sessions Court, West Godavari, Eluru, who in turn after going through the records took cognizance of the offence and the same came to be registered as Sessions Case No.67 of 1994. Then charges were framed and the same were explained to the accused, but he pleaded not guilty.

On behalf of the prosecution, ten witnesses were examined as PW1 to PW10 and Exs.PI to P18 were marked as documents and MOs.l to 10 were marked as MOs. The defence of the accused was one of total denial. An opportunity as required u/s 313 of the Criminal Procedure Code was given, but the same was not availed of by the accused. Learned Sessions Judge after considering the entire evidence on record adduced by the prosecution and after analysing the same in its proper perspective satisfied with the evidence of PW1 eye-witness and the injury found at the time of inquest and also the injuries mentioned in the post-mortem report including the opinion given by the Doctor PW5 as to the cause of death of the deceased. In the absence of any inconsistencies, contradictions or artificialities in the evidence adduced by the prosecution, the learned Sessions Judge found that the accused/ appellant is responsible for causing death of the deceased as told by the prosecution. Hence, he convicted the accused/appellant for an offence u/s 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life.

Sri B. Rajendra, learned Counsel for the accused/appellant urged that the conviction and sentence ordered by the trial Court are quite arbitrary and unreasonable and the appreciation of evidence by the trial Court is quite incorrect. The learned Sessions Judge did not formulate the necessary issue for consideration. He committed a mistake in admitting certain inadmissible evidence incorrectly and rejecting the evidence which should have been accepted. The learned Sessions Judge simply believed the evidence of PW1 to 3 which is incorrect. When the prosecution has failed to establish its case beyond all reasonable doubt to connect the accused/appellant to the offence alleged, the accused/appellant should have been acquitted of the offence alleged against him. In the presence of so many contradictions, inconsistencies and falsities, particularly in respect of scene of offence and in medical evidence, the trial Court should not have convicted the accused/appellant for the offence u/s 302 of the Indian Penal Code, more so in the absence of satisfactory, cogent and convincing evidence on record. Even otherwise, the punishment imposed is too liarsh and excessive in nature. Thus urging, the learned Counsel for the accused/ appellant sought the appeal be allowed and the conviction and sentence passed against the accused be set-aside.

Whereas, the learned Public Prosecutor supported the case of the prosecution. According to him, the trial Court has considered the entire evidence dispassionately and found that the accused/ appellant was responsible for causing death of the deceased. The entire evidence went in only one direction leading to the guilt of the accused/appellant and there is no deviation to infer his innocence. When the evidence on record is consistent and trustworthy, the trial Court is justified in convicting the accused/appellant to the offence u/s 302 of the Indian Penal Code and in sentencing him to undergo life imprisonment.

In order to know how far the trial Court is justified in convicting the accused/ appellant for an offence u/s 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life, after hearing the learned Counsel of both sides, we once again went through the entire evidence and the reasons given by the trial Court to reach the conclusion in its judgment for convicting the accused/appellant for an offence u/s 302 of the Indian Penal Code and sentencing him to undergo life imprisonment. PW1 is the eye-witness and daughter of the deceased who spoke about the incident and how it took place. The evidence of PW1 is substantiated by the evidence of PW2 and there is no artificiality in her going to Police Station and lodging complaint, which was recorded by PW8, within 45 minutes from the time of occurrence of the incident, who inturn faithfully sent the FIR to the Court. PW10 started investigation without loss of time, drew mahazar in the presence of panch witnesses and after conducting inquest, the dead body of the deceased was sent to the Government Hospital for post-mortem examination and PW5 Doctor issued postmortem certificate under Ex.P8. The injury found at the time of inquest and the injury mentioned in the post-mortem examination report reveals as to how the incident took place as told by PWI viz., stabbing on the neck of the deceased with a knife. Though there is some artificiality in the recovery of MOs., but the fact remains that the evidence given by other witnesses as to the causing of death of the deceased and the nature of injury cannot be said as false. On the other hand, the trial Court is justified in accepting the evidence of the prosecution witnesses and satisfied by comparing the same to the documentary evidence, but the only infirmity we found in the order of the learned Sessions Judge is that instead of convicting the appellant/accused for an offence u/s 302 of the Indian Penal Code, he would have been justified under the circumstances, if the accused was convicted to the offence u/s 304 Part I IPC for the reason that it has come in the evidence that by stabbing once on the neck of the deceased, the accused left the scene of offence. If the accused wanted to do-away with the deceased, he would not have hesitated in inflicting a few more injuries. The offence committed by the accused can be brought under Exception 4 and the accused be convicted u/s 304 Part 1 of IPC, in which case the sentence imposed by the learned Sessions Judge requires to be modified. Accordingly this appeal is allowed in part. The order of conviction and sentence passed by the trial Court, wherein the learned Sessions Judge convicted the accused/ appellant for an offence u/s 302 IPC and sentenced him to undergo imprisonment for life, are set aside and in its place, it is ordered that the accused/ appellant is convicted for an offence u/s 304 Part I IPC and sentenced him to undergo imprisonment for a period of seven years. The accused/appellant is entitled for set-off for the period he suffered imprisonment including the period of remand.

Criminal appeal is accordingly allowed in part.