Criminal Appeal No. 1601 of 2010 25-01-2017 Sri Kale Mariyanna...Appellant The State of A.P. rep. by Public Prosecutor . Respondent

HON'BLE SRI JUSTICE SURESH KUMAR KAIT and HONBLE SRI JUSTICE U. DURGA PRASAD RAO                

Criminal Appeal No. 1601 of  2010

25-01-2017

Sri Kale Mariyanna...Appellant

The State of A.P. rep. by Public Prosecutor . Respondent

Counsel for the Appellant : Sri K. Suresh Reddy

$Counsel for Respondent: Public Prosecutor

<Gist :

>Head Note:

?Cases referred:

2008(3) ALT (Criminal) 284 SC

HONBLE SRI JUSTICE SURESH KUMAR KAIT        
&
HONBLE SRI JUSTICE U. DURGA PRASAD RAO        

Crl.A. No. 1601 of 2010

JUDGMENT:- (Per Honble Sri Justice Suresh Kumar Kait)

     This Criminal Appeal is preferred against the judgment
dated 08.10.2010 delivered in S.C.No. 395 of 2007 by
I Additional District and Sessions Judge, Eluru, West Godavari
District whereby the accused was found guilty of the offence
punishable under Section 302 IPC and accordingly convicted
and sentenced to undergo imprisonment for life and to pay
fine of Rs.500/-, in default of payment of fine, he shall
undergo Simple Imprisonment for a period of six months.
     The accused has filed the present appeal on the ground
that the learned Additional Sessions Judge erred in convicting
him by relying upon the testimony of PWs.2 and 3 treating
them as eye-witnesses to the occurrence of the offence.  The
learned Judge also failed to notice the conduct of PWs.2 and 3
that they did not inform anybody in the village much more to
PW1, husband of the deceased - Meramma, till the next day
which would throw any amount of suspicion on the truth of
their evidence.  The place of occurrence and the surroundings
were fully covered by thorny bushes and it was improbable
that PWs.2 and 3 would have taken their buffaloes to that
area for grazing.  The trial Court should have noted that PW2
was not generally taking buffaloes for grazing but her son
alone was taking them daily and to explain this fact she
invented a story that her son had gone for collie work on that
day.
     Sri K. Suresh Reddy, learned counsel for the appellant
accused, submits that PWs.2 and 3 are relatives to PW1, thus
they are interested and planted witnesses.  The trial Court
failed to see that the testimony of PWs.2 and 3 has not been
corroborated by the medical evidence which reveals that all
the injuries except one which was a lacerated injury, could
not have been caused by a blunt weapon.  The learned Judge
has not given any importance to the alleged recovery of knife
(penaka katti / curved knife) from the leaves of the hut of the
appellant which circumstance was created by the
investigation officer  PW12 with the aid of PW1, a stock
witness of the prosecution.
     The learned counsel also submits that the learned Judge
held that the deceased was having illicit intimacy with
number of persons in the village but only attributed motive to
the appellant who had illegal connection with the deceased
since one year prior to the occurrence of offence.
     The learned counsel further submits that the incident
took place on 21.04.2005, however PW1 lodged complaint  
Ex.P1 on 22.04.2005.  As per the statement of PW1 -
informant of F.I.R., PWs. 1 and 6 went on searching the
deceased on the next day of the incident at 06:00 a.m. and
came to know through PWs.2 and 3 that the appellant had
killed the deceased.  In the complaint  Ex.P1, the aforesaid
fact was narrated.  However, PW1 deposed in his evidence
that PWs.2 and 3 informed him about the incident at
mid-night on 21.04.2005.  The learned counsel further submits
that there was no need of searching at 06:00 a.m. if the
incident had already been informed to PW1 at mid-night on
21.04.2005.
     The learned counsel further submits that the distance
between the police station and the scene of offence is two
furlongs.  If PW1 informed the police about the incident at
mid-night itself against the appellant, what prevented PW1
from approaching the police station and getting the F.I.R.
registered.  He also submits that the evidence of PWs.2 and 3
does not inspire confidence for the reason that both the
witnesses are related to the deceased and PW1.  Initially,
PWs.2 and 3 stated that they ran away from the incident due
to fear, and thereafter, they stated that after seeing the
incident they ran away, however did not mention due to what
reason they ran away.  If they had seen the incident they
were supposed to inform any villager including PW1 about the
incident, however they failed to do so.  PWs.4 and 5, who are
daughters of the deceased, admitted that the appellant had
illicit relation with the deceased.  So is the stand of PW1 on
this aspect.
     The learned counsel for the appellant further submits
that PW6 went along with PW1 to search for the deceased on
the next day of occurrence at 06:00 a.m. however this witness
did not support the prosecution case and was declared hostile.
     The learned counsel further submits that PW1 has
admitted illicit relation of the deceased with one Ananda Rao
with whom she lived for around one year and had also illicit
relation with another person namely Gyaneswar.  In addition
to the above two persons, the deceased had also illicit
relation with other villagers, therefore, she might have been
killed by anyone, but the appellant, who is innocent, was
falsely implicated in the present case.
     On the other hand, the learned Public Prosecutor
appearing on behalf of the respondent-State, submits that
PWs.2 and 3 are eye-witnesses and both are ladies,
uneducated and not related to the deceased and PW1.  It is
not the case of the appellant that the said ladies had
enemical relations with the appellant who had seen the
crime.  Since those ladies had seen the accused hacking the
neck of the deceased by the knife, it was obvious for them to
have fear in their mind.  However, after some breathing time,
they informed PW1 about the incident, who thereafter, got
registered the F.I.R.  He further submits that PW2 was not on
talking terms with the deceased, and therefore, there was no
occasion for her to depose against the appellant.  He further
submits that the incident had taken place in the year 2005
and the witnesses were examined in 2010 after a gap of six
years, and therefore, minor discrepancies and contradictions
in the depositions are obvious which rightly have not been
taken into consideration by the trial Court, and thus, there is
no merit in the present appeal and the same is liable to be
dismissed.
     Heard the learned counsel for both the parties and
perused the material placed on record.
     The brief case of the prosecution against the sole
accused  appellant is that the accused and the deceased
Kollabathina Meramma were having illicit relation for about 5
or 6 years prior to 21.04.2005 and it was within the knowledge
of PW1, the husband of the deceased.  PW1 advised his wife
to put an end to extra marital affair with the accused since
the children were grown up.  Then, the deceased stopped
meeting the accused.  However, the appellant tried to
continue illicit intimacy with the deceased.  Refusing to have
such further intimacy with the accused the deceased scolded
him.  On one or two occasions, the accused also beat the
deceased and insisted on her to continue illicit intimacy with
him.  Finally, the accused made plans and killed the deceased
- Meramma as she did not agree to revive illicit intimacy with
him.
     After F.I.R. was lodged, the police arrested the accused
on 02.04.2005 at 03:00 p.m. at Denduluru Railway Station in
the presence of panchayatdars PW8 and LW13.  The accused  
confessed the offence and in pursuance of such confession,
the knife used in the commission of offence, was recovered
from the house of the accused situated at Door No. 15-46,
New Colony, Peda Harijanwada, Denduluru in the presence of
the panchayatdars under cover of seizure report.  PW12, on
completion of investigation, filed charge sheet against the
accused for the offence punishable under Section 302 IPC.
     To bring home the guilt of the accused, the prosecution
examined as many as twelve witnesses and got marked Exs.P1  
to P12 and M.Os.1 to 6.
     PWs.2 and 3 are the eye-witnesses.  PW2 deposed that
as her youngest son went for coolie work in the fields on
22.04.2005, she undertook the job of grazing her buffaloes on
the date of incident.  She also deposed that she took the she-
buffaloes for grazing to Gunderu Vagu on 21.04.2005.  She
further deposed that PW3 - Josephine also came there for the
purpose of grazing her buffaloes.  The deceased and one
person namely, Tambi came there for the purpose of grazing
goats.  Herself, PW3 and the deceased  Meramma were  
sitting under a neem tree.  The accused came there even
before the deceased reached the place.  The accused went
and slept under a different tree.  After Meramma came there,
the deceased - Meeramma went along with her goats to the
place where the accused was sleeping.  After sometime, at
about 01:00 P.M., they heard cries of the deceased.  PW2
further deposed that on hearing the cries of Meramma,
herself, Josephine and Tambi went to the bund of Vagu and
saw the accused hacking the deceased with the knife.  On
seeing it, they ran away out of fear from the said place.  The
accused also ran away holding the knife in his hand.  She
further deposed that in the midnight itself they informed PW1
that the accused hacked Meramma with the knife and killed
her.  It is further deposed that due to fear of the accused, she
did not inform about the incident to anybody till she informed
to PW1.  M.O.1 is Penaka Katti with which the accused hacked
Meramma.
     PW3 deposed on the same lines as adduced by PW2.  
     PWs.4 and 5, who are daughters of the deceased,
deposed that their mother was having illicit intimacy with the
appellant and their father knew about it.  They deposed that
PW1 found fault with their mother about her indecent
behaviour, however their mother discontinued illicit intimacy
with the appellant since one year prior to her death.  They
also deposed that their mother told them that the appellant is
still after her.  On 21.04.2005, their mother went for grazing
goats but did not return home.
     PW6 deposed that the deceased used to graze goats.
About five years ago, at the request made by PW1, he
accompanied PW1 in search of missing goats.  However, PW6  
has not supported the prosecution case and is declared
hostile.
     PW8 is the panch witness who deposed that on
22.04.2005 at 09:00 a.m., the Sub-Inspector of Police visited
the scene of offence.  They noticed the dead body of the
deceased in Vagu and also noticed M.O.2  knife headed with
stick, one pair of hawai chappals, pieces of bangles i.e.
M.Os.3 and 4 at the scene of offence.  The police seized
bloodstained earth and control earth which are marked as
M.Os. 5 and 6.  The police seized M.Os.2 to 6 under cover of
scene of offence panchanama which is marked as Ex.P3.  He
also deposed that himself and Jakaraiah also signed on Ex.P3.
On 22.04.2005 between 10:30 a.m and 01:30 p.m., he
prepared Ex.P4  inquest report.  He further deposed that on
27.04.2005, the police interrogated the accused in his
presence and the accused stated that he had secreted the
knife in the eves of his house.  The admissible portion in the
confession panchanama is marked as Ex.P5.  He further
deposed that on the same day at about 04:00 or 05:00 p.m.
the police seized M.O.1  knife from the house of the accused
and at his instance under Ex.P6  seizure panchanam.  The
thumb impression of the accused was obtained on Exs.P5 and
P6.  Panch slips were affixed on M.O.1.
     PW9 is a photographer, who deposed that on
22.04.2005, at the request of the police, he took photographs
of the dead body of the deceased in the Vagu.  The eight
photos along with negatives are marked as Ex.P7.
     PW10  Dr.A.V.R.Mohan deposed that on 22.04.2005
from 03:15 p.m. to 05:15 p.m., he conducted postmortem
examination on the dead body of the deceased and found the
following ante-mortem injuries:
1)      2 x  cut injury present across the nasal bridge transacting
the nose.  The cut edges are stained with blood clots.
2)      3 x 2 lacerated injury below and behind left ear.
3)      3 x  lacerated injury present across the right elbow.
4)      2 x  lacerated injury over middle of the right forearm on
the anterior aspect.
5)      4 x  lacerated injury over right forearm 2 cms.  below the
injury No.4.
6)      Near total transaction of the left distal forearm 3 cms. above
left wrist.
7)      3 x  lacerated injury over dorsum of left hand.  Wound
edges stained with clotted blood.
Internal Injuries:-
Head    :   Skull vault intact, membrance intact.  Brain
                   Matter solid.  C/s. normal.  Base of the skull
                   normal.
Neck    :   Hyoid intact.  Neck structure normal.
    Chest       :   No rib fracture.  Both lungs normal in size. C/w.
                         normal.
    Heart       :   Normal in size.  C/s. chamber empty.
    Abdomen  :  Symmetrical, no free fluid in peritoneal cavity
                       Viscera normal in size.  C/s. pale.
    Stomach
      empty     :  pelvis intact.  Bladder empty.  Uterus absent.
                       Vaginal lips swollen.  No external injuries patulus
                       allowing four fingers.  No stains found in the
                       surrounding area.
     Spine      :  No fractures.

        PW10 further deposed that he collected specimen of
vaginal and Cervical Swabs, Nail Clippings and pubic hair for
analysis and issued Ex.P8  postmortem report.  He deposed
that based on Exs.P8 and P9, he gave his final opinion stating
that the deceased would appear to have died of shock and
hemorrhage due to multiple injuries.  The approximate time
of death is 24 to 36 hours prior to the commencement of
postmortem examination.  The injuries noted in Ex.P8 are
possible with M.O.1.  There was a struggle to avoid injuries
caused on vital parts. Generally, any person would raise his
hands toward the blows and in such course there is possibility
of sustaining injuries on the hands.
        PW11, the Sub-Inspector of Police registered F.I.R.
Ex.P11.
        PW12 is the Investigation Officer of the case who
deposed that he received telephone message at 08:10 a.m. on
22.04.2005 from PW11 about the registration of this case.  He
observed the scene of offence in the presence of
panchayatdars PW8 and P. Jakaraiah on 22.04.2005 at 09:00
a.m. and got prepared Ex.P3  scene of offence panchanama.
He also seized M.Os. 2 to 6 from the scene of offence. He got
the scene of offence photographed through PW9.  Ex.P7 are
the bunch of photographs of scene of offence with dead body.
He prepared Ex.P12 - rough sketch of the scene of offence.
He arrested the accused, interrogated him and seized M.O.1
knife from the leaves of the house of the appellant under
cover of Ex.P6.  After completion of investigation, PW12 filed
charge sheet for the offence punishable under Section 302
IPC.
        After closure of the prosecution evidence, the appellant
 accused was examined under Section 313 Cr.P.C. regarding
incriminating material found in the evidence of the
prosecution witnesses.  The accused denied the offence.  No
defence evidence was adduced except marking of Ex.D1.
        The point for consideration before the trial Court was
whether the prosecution is able to prove the guilt of the
accused beyond all reasonable doubts for the offence
punishable under Section 302 IPC.
        In the present case, as per the prosecution, there was
motive on the part of the accused to kill the deceased.  In
order to substantiate the same, the prosecution placed
reliance on the evidence of PWs.1 to 5 who consistently
deposed that there was illicit intimacy between the accused
and the deceased.  PWs.1, 4 and 5 deposed that PW1 found  
fault with the deceased for having illicit relation with the
appellant, thereby, the deceased stopped having such relation
with the appellant about one year prior to the date of
incident.  Their evidence further shows that the appellant
insisted on the deceased and threatened her to continue illicit
intimacy with him.
        In case of Sonelal v. State of M.P. , it is held that
merely because eye-witnesses are family members, their
evidence cannot per se be discarded.  Relationship is not a
factor to affect the credibility of the witness.  In the above
decision, the Supreme Court has held that over insistence on
witnesses having no relation with the victims often results in
criminal justice going away.  It is further held that merely
because eye-witnesses are family members, their evidence
cannot per se be discarded.
        The settled law is that the evidence of witnesses cannot
be discarded on the ground of interestedness alone.  PWs.2
and 3 are having same surname as that of PW1.  However,  
PWs.2 and 3 are not close relatives to PW1 or the deceased.
Merely because PWs.2 and 3 are distant relatives of PW1, their
evidence need not be eschewed from consideration.  But, as a
rule of caution, the evidence of PWs.2 and 3 has to be
carefully scrutinized by the trial Court.  There is no rule that
the evidence of PWs.2 and 3 shall be corroborated by
independent witness.  The evidence of PWs.2 and 3 in the
case certainly inspires much confidence for the reason that
none of the witnesses were related either to the deceased or
to PW1.  Initially, when they say the crime they had fear in
mind, however, after mustering enough courage, they first of
all informed PW1 about the incident.  Their deposition is
consistent throughout.  Both the above-mentioned witnesses
had seen the crime from the bushes and babul trees around
the Vagu.
     In cross-examination, PW1 deposed that it is not possible
to enter into the Vagu, as such, the appellant could not get
into it.  The incident had taken place in the year 2004 and
PWs.2 and 3, who are the eye-witnesses, were examined in  
the year 2010, therefore, it was obvious to have some
contradictions and discrepancies in their evidence.  They are
illiterate and ladies and it was also obvious that being ladies,
on seeing such a brutal crime, they might, out of fear, did not
tell anybody including the villagers.  But, only after mustering
enough courage they had disclosed to PW1, the husband of the 
deceased, about the incident.  Moreover, the weapon used in
the crime was recovered at the instance of the appellant from
his house.
        In view of the clinching evidence of the prosecution
witnesses, we find no illegality or perversity in the findings
recorded by the trial Court.  The judgment under appeal is
perfectly justified and does not warrant any interference by
this Court.  The arguments raised on behalf of the appellant
do not shatter the credibility of the prosecution case.
        Hence, the Criminal Appeal is devoid of merit and the
same is accordingly dismissed.
     As a sequel, Miscellaneous Petitions, if any pending,
shall stand disposed of as infructuous.

____________________  
SURESH KUMAR KAIT, J    
25.01.2017
_____________________  
U.DURGA PRASAD RAO, J

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