Balipogu Uthaiah, v. The State Of Andhra Pradesh,

HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.1432 of 2010 Date:17.10.2016 Between:

Balipogu Uthaiah, S/o B.Gangulaiah ..... Appellant And:

The State of A.P., reptd. by the Public Prosecutor ....Respondent Counsel for the appellant: Ms. Naseef Afshan Counsel for the respondent: Public Prosecutor (AP) The Court made the following:

JUDGMENT: (per Hon'ble Sri Justice C.V.Nagarjuna Reddy) This Criminal Appeal is instituted against the judgment, dated 28.4.2009, in Sessions Case No.343 of 2008 on the file of the learned V Additional Sessions Judge, Rayachoty, by the accused in the said case.

The case of the prosecution in brief is that the marriage of the deceased with the appellant was performed about ten years before the date of incident; that out of their wedlock, they got four daughters; that they lived happily for about eight years; that subsequently, the appellant was addicted to alcohol and was beating the deceased suspecting her fidelity; that unable to bear the torture, the deceased went to her parents' house one month prior to the date of incident; that after some days, the appellant also came to the house of P.W-1 along with the mediators; that P.W-4 and others acted as mediators; that in the mediation, the deceased refused to go to the appellant; that on the advise of the mediators, the appellant started living with the deceased at the house of P.W-1; that even there, the appellant used to pick up galata with the deceased by consuming liquor everyday; and that P.W-1 was advising him to behave properly. That one month thereafter, the deceased went to Thirunalla (Village fair) along with her children and returned at

night; that at that time, the appellant questioned her as to why she went to Thirunalla and beat her; that P.W-1 asked him to stop the galata and told him that he will lodge a complaint before the Police on the next day; that after taking dinner, the families of P.W-1 and the appellant slept in front of the house of P.W-1; that during the same night, at about 1 am., P.W-1 heard an altercation between the appellant and the deceased in the barren land by the side of his house; that he rushed there by asking as to why there is galata during night; that hearing him, P.W-1's wife and son, P.Ws.2 and 3 followed him; that when he was at a distance of 20 feet, P.

W-1 saw the appellant stabbing the deceased with a dagger on the left side of her abdomen by saying that he will not let her live and again stabbed her on the right side of her back; that on seeing them, the appellant threatened to kill them also; that out of fear, they stopped to intervene; that meanwhile, the deceased fell on the ground and the appellant escaped; that they went near the deceased and found her dead; that on the next day morning, P.W-1 and his wife went to Chinnamandem Police Station and gave Ex.P-1report; and that P.W-7-Head Constable received the complaint and registered the same as Crime No.77 of 2004 under Section-302 of Indian Penal Code and immediately, sent the express FIRs to all concerned. Then, P.

scene of offence along with P.W-1 and a constable and that, at about 6.30 am., P.W-8-Inspector of Police reached the scene of offence, prepared a rough sketch of the scene of offence, conducted inquest over the dead body of the deceased and sent the dead body for autopsy. That P.W-6-Civil Assistant Surgeon conducted autopsy over the dead body of the deceased and opined that the cause of death was due to Cardio Respiratory failure due to gross hemorrhage due to stab injuries to vital organ-lungs by sharp edged weapon about 6 to 15 hours prior to the autopsy and issued Ex.P-5-Post-Mortem Certificate. That P.W-9-Inspector of Police who took up further investigation, on receiving credible information about the movements of the appellant on 08.6.2008 at Bonamala Cross Road, secured the presence of mediators, P.

W-5 and another, went to the said place and arrested the appellant. That on interrogation, the appellant confessed about his commission of the crime and brought the weapon M.O-1-dagger from his house. That after receiving Ex.P-5-Post-mortem Certificate and Ex.P-8-Regional Forensic Science Laboratory Report, he filed the charge sheet.

After the case was committed, the learned V Additional Sessions Judge, Rayachoty framed the charges. As the appellant has denied commission of the offence, he was tried.

In support of its case, the prosecution has examined P.Ws.1 to 9, marked Exs.P-1 to P-8 and produced MOs.1 to 5. On behalf of the defence, no oral or documentary evidence was adduced.

On appreciation of the oral and documentary evidence, the trial Court convicted the appellant for the offences under Sections-302 and 506 Part-II of the Indian Penal Code and sentenced him to undergo simple imprisonment for life and to pay a fine of Rs.100/-, in default, to undergo simple imprisonment for one year for the offence under Section-302 I.P.C. He was also sentenced to undergo rigorous imprisonment for three years for the offence under Section-506 Part-II I.P.C. Both the sentences were directed to run concurrently. Ms. Naseeb Afshan, the learned counsel for the appellant, submitted that the Police have failed to prepare the scene of offence panchanama and that, absence of such panchanama is fatal to the case of the prosecution.

She has further argued that considering the place at which the offence has allegedly taken place and the time of the alleged offence being dead of the night, there was no possibility of any of the alleged eye-witnesses among P.Ws.1 to 4 to have witnessed the incident and that the prosecution has apparently planted the said witnesses as eyewitnesses.

P.Ws.1 to 4 is eschewed as, their presence at the time of the alleged offence was improbable, there is no other evidence to connect the appellant to the alleged offence. She has also pointed out that there is discrepancy in the description of M.O-1-dagger as the same was termed differently at different times by the prosecution and also the witnesses. Opposing the above submissions, the learned Public Prosecutor for the State of Andhra Pradesh stated that the evidence of the eye-witnesses is not only cogent but also consistent and in the absence of any lacunae pointed out by the defence in their evidence, the lower Court has rightly believed their testimony, convicted the appellant and appropriately sentenced him.

We have carefully considered the submissions of the learned counsel for the parties and perused the record. P.W-1 is the father of the deceased and father-in-law of the appellant, P.W-2 is younger brother of P.W-1, P.W-3 is the neighbour of P.W-1 and P.W-4 is one of the mediators for the Panchayat conducted to settle the disputes between the appellant and the deceased.

P.W-1 has deposed that his daughter was killed by the appellant during the mid night at about 1'O clock in the barren land by the side of his house at Kalibanda Harijanawada. He has

further deposed that the appellant was beating his daughter by suspecting her fidelity; that about one month prior to the date of occurrence, the deceased came to his house stating that she was unable to bear the harassment of the appellant and began to reside in his house along with her children; that after some days, the appellant also came to his house along with the mediators, who include P.W-4 and who conducted mediation; and that, in the mediation, the deceased refused to go to the house of the appellant by stating that he may kill her by suspecting her fidelity. He has further deposed that the elders advised the appellant to stay at P.W-1's house, upon which, the appellant started residing in his house. P.

W-1 further testified that the appellant used to consume liquor everyday and pick up quarrel with the deceased; that on the fateful day, the deceased went to Thirunalla (Village fair) along with her children and returned home at about 7.30 or 8 pm; that the appellant beat her questioning as to why she has gone to Thirunalla; that P.W-1 has advised the appellant not to pick up quarrels; and that, he will get the matter settled by going to the Police Station on the next day morning. P.W-1 further stated that on that night, after taking meals, all of them including the appellant and the deceased slept in front of their house; that at about 1 am.

the barren land situated by the side of his house; and that he reached and questioned them as to why they were quarreling during night. On hearing his cries, P.W-1's wife, his son-Shekar and his younger brother-P.W-2 came behind him and that when he was at a distance of 20 feet away from the deceased and the appellant, the latter has stabbed the deceased with a dagger on the left side of her abdomen by announcing that he will not let her live and he has again stabbed on the right side of her back. He further deposed that the deceased sustained bleeding injuries; that on seeing the witnesses, the appellant threatened to kill them also; that out of fear, they could not proceed towards the appellant; that the deceased died due to the injuries received by her; and that the appellant has escaped from the scene of offence.

P.W-1 has further deposed that himself and his wife went to the Police Station and gave Ex.P-1-report and thereupon, the Police have arrived at the scene of offence and conducted inquest over the dead body of the deceased. The witness has identified MO-1-dagger seized by the Police and produced before the Court. He has also identified MO-2-broken gold Mangalasutram, MO-3-two silver toe rings, MO-4-green colour torn blouse and MO-5-cement colour designed saree with blood stains.

P.W-1 was subjected to cross-examination by the defence. It was suggested to him that the barren land is situated at a distance of about 300 yards from his house, which suggestion was denied by P.W-1 and he has stated that the place is situated at a distance of about 20 feet away from his house. He has also denied the suggestion that no one can recognize the persons at the barren land from his house. He has also denied the suggestion that after return of the deceased from Thirunalla, his son-Shekar, his wife and P.W-2 quarrelled with the appellant and that at that time, all of them including P.W-1 and the deceased beat the appellant and caused injuries to him. He has also denied the suggestion that after the said quarrel, the appellant has left the village and went to his village without staying for that night at P.W-1's house.

It is, however, elicited from P.W-1 that he did not state in Ex.P-1-report that himself and his wife were also sleeping by the side of the appellant and the deceased in front of their house. He denied the suggestion that at the time of occurrence, the appellant was not in Kalibanda Harijanawada Village and that some unknown offenders might have caused injuries to the deceased and a false case has been foisted against the appellant. He has also denied the suggestion that the children of the deceased were in the custody of the appellant.

were kept with his younger sister by name Ramanamma, who is the wife of the elder brother of the appellant, residing at Thummalakondi Village.) He has denied the suggestion that with a view to avoid lodging of any case by the appellant against him and others for causing injuries to the appellant, they have foisted a false case against the appellant.

P.W-2 is the younger brother of P.W-1. He has deposed that his house is situated adjacent to the house of P.W-1. He has supported the version of P.W-1 regarding the harassment meted out to the deceased by the appellant, the deceased returning to her parents' house unable to bear the torture by the appellant, the mediation held at the house of P.W-1 and the understating reached during the mediation, as per which, the appellant started staying in the house of P.W-1 along with the deceased. As regards the occurrence, he has deposed that he has slept in front of his house under a pandiri (temporary shed); that at about 1 am., he heard the cries of the deceased on the western side of the house of P.W-1 besides the utterances of P.W-1 questioning as to why there was a galata during night; that when he reached the said place, he found P.W-1, his wife and his son going behind P.W-1; that by that time, he found the deceased struggling in the hands of the appellant; that uttering the words that he will not leave her, the appellant stabbed the

deceased with a dagger on the left side of her abdomen; that the deceased sustained bleeding injuries and when she raised cries, the appellant again stabbed the deceased on the right side of her back causing bleeding injuries; that due to the impact of the injuries, the deceased fell down and when they tried to reach the deceased, the appellant threatened them by showing the dagger in his hands stating that he will stab them also; that due to his threats, they stopped to intervene; and that thereafter, the appellant escaped from the scene of offence.

A perusal of the cross-examination of this witness shows that certain suggestions were given to him such as he was not present at the time of mediation and the appellant leaving P.W-1's house and Kalibanda Harijanawada Village after receiving injuries at the hands of P.W-1 and his family members. It was also suggested to P.W-2 that as the barren land is situated at a distance of 300 yards from the house of P.W-1, it was not possible to witness the happenings in the barren land from the house of P.W-1. P.W-2 has denied all these suggestions. He has also denied the suggestion that some unknown enemies of the deceased murdered her. P.W-3 is also a resident of Kalibanda Village. He has deposed that at about 1.30 am, on the date of occurrence, he was at his fields situated at a distance of 100 meters away from

the scene of offence towards the southern side, tending to mulberry; that he heard cries and came out from the shed; that by that time, he saw the appellant running towards southern side; and that when questioned by him as to what happened, the appellant did not reply. He further deposed that he has then gone to the place of occurrence and found the deceased lying by the side of the road; that at that time, P.W-1, his wife and his other relatives have gathered; that when he enquired, he was informed that the appellant has stabbed the deceased to death; and that when they tried to intervene, the appellant threatened to kill them also.

The witness spoke about the appellant being addicted to drinking alcohol, the disputes persisting between the appellant and the deceased, the mediation between them and the appellant and the deceased staying at the house of P.W-1. In the cross-examination, P.W-3 admitted that P.Ws.1 and 2, the wife and the son of P.W-1 were working in his fields as coolies. To a question put to him, he has stated that by the time, he came out of the shed, an electric bulb was burning outside and he denied the suggestion that there was no light. He denied the suggestion that there would be no mulberry crop in the summer season and that he is deposing falsely at the instance of P.Ws.1 and 2, who used to attend the coolie work in his fields.

his identifying the appellant during the mid night due to darkness.

P.W-4 was examined to speak about the mediation between the appellant and the deceased. Though he has fully corroborated the evidence of P.W-1 in his chief-examination, in his cross-examination, he has not supported the case of the prosecution. Therefore, his evidence is not of much help to the prosecution.

P.W-5 is the Village Revenue Officer, Devagudipalli, Chinnamandem Mandal. He is a witness to the inquest panchanama and also to the arrest of the appellant on 08.6.2008 at about 4 pm at a place called Bonamala cross road near Kesapuram Village. He signed Ex.P-2-inquest report and has also attested the panchanama, which contains the confessional statement of the appellant, based on which, M.O-1-dagger was seized. Ex.P-3 is the admissible portion of the panchanama.

In his cross-examination, P.W-5 denied the suggestion that he is a stock witness of Chinnamandem Police Station and that he has not participated in the inquest proceedings. He denied the suggestion that the Police have not arrested the appellant in his presence; that no weapon was seized in his presence; and that he signed Exs.P-2 to P-4 at the Police Station.

P.W-6 is the Civil Assistant Surgeon, Community Health Centre, Rayachoty, who conducted autopsy on the dead body of the deceased. He has opined that the deceased appeared to have died of Cardio respiratory failure due to gross hemorrhage due to stab injuries to vital organ-lungs with a sharp edged weapon about 6 to 12 hours before the post-mortem and that, he has issued Ex.P-5-Post-mortem Certificate.

In his cross-examination, P.W-6 has denied the suggestions that the injuries mentioned in Ex.P-5 cannot be caused by stabbing and that such injuries are possible due to fall from a tree on some projected and sharp edged objects. P.W-7-Head Constable, Chinnamandem Police Station has deposed that at about 5 a.m. on 02.6.2008, when he was in the Police Station, the Sub-Inspector of Police went on CM's bandobust duty; that P.W-1 came to the Police Station and presented Ex.P-1-report, based on which, he registered Crime No.77 of 2008 under Section-302 IPC and sent the copies of the same to all concerned; and that after sending a copy of the FIR to the In-charge Circle Inspector, Rayachoty Urban Circle, he along with P.W-1 and P.C.No.677 proceeded to the scene of offence, which is situated at a distance of 10 kms towards the western side of Chinnamandem Police Station, by which time, the dead body of the deceased was lying with injuries on her

body. He further deposed that at about 6.30 a.m., the Circle Inspector of Police, Rayachoty arrived at the scene and conducted inquest over the dead body of the deceased and the further investigation was done by the Circle Inspector of Police. Nothing worth mentioning could be elicited from this witness in his cross-examination.

P.W-8 is the Investigating Officer. He has deposed that on 02.6.2008, at about 5 am., he received a phone call from P.W-7 and was informed that Crime No.77 of 2008 was registered for the offence under Section-302 IPC; that he immediately rushed to Chinnamandem Police Station, received the copy of express FIR and visited the scene of offence, where he found the dead body of the deceased lying with stab injuries; and that he has examined the scene of offence and has also has examined P.W-1 and recorded his statement under Section-161 Cr.P.C. He further deposed that he conducted inquest over the dead body of the deceased from 7 am to 9.30 am, during which, he has examined P.W-1, Talari Papulamma, Talari Shekar and P.W-2. Ex.P-2 is the inquest report prepared by him. He has also prepared Ex.P-7-rough sketch of the scene of offence. In his cross-examination, P.W-8 has denied the suggestion that he has gone to Chinnamandem Police Station on the early hours of 02.6.2008. While admitting that he did not

prepare separate scene of offence panchanama, he has, however, deposed that he has incorporated his observations of the scene of offence and the seizure of incriminating material in Ex.P-2-inquest report itself. He has denied the suggestion that on 02.6.2008, he did not visit the scene of offence and that he has prepared Ex.P-2-Inquest report at Rayachoty Police Station, as per the information given by P.W-7.

P.W-9, who was the Inspector of Police of Rayachoty Rural Circle at that time, has deposed that he has taken over the investigation by recording the statement of the witnesses under Section-161 Cr.P.C.; that he has examined the scene of offence; that on 08.6.2008, on receiving credible information about the movements of the appellant, he has secured the presence of P.W-5, went to Bonamala Cross road and chased the appellant who was trying to escape noticing the Police and apprehended him; that during the interrogation, the appellant disclosed his identity; and that he has arrested the appellant under a cover of panchanama and recorded his confessional statement-Ex.P-3. He has also deposed that after the seizure of MO-1 under Ex.P-4-panchanama and on receiving Ex.P-8-Regional Forensic Science Laboratory report and Ex.P-5-Post-mortem Certificate, he has filed the charge sheet in the Court on 25.8.2008. The witness denied the suggestion put to him by the defence

regarding the arrest of the appellant and the seizure of M.O-1dagger. A careful perusal of the evidence discussed above would show that P.Ws.1 and 2 claim to be the eye-witnesses to the offence. The appellant, in his Section-313 Cr.P.C. examination, in answer to question No.3 admitted that he was staying in the house of P.W-1 along with the deceased till the day of occurrence. He has, however, sought to plead alibi that he did not stay in P.W-1's house and left that Village during night. Though suggestions were put to P.Ws.1 and 2 that as P.W-1 and his family members including the deceased on the night, have beaten him that the appellant has left the Village following attack on him on the night of occurrence, in his Section-313 Cr.P.C. statement, the appellant has not made any whisper about assault on him by P.

W-1 and other members of his family. Though the appellant in reply to question No.37 has stated that he has his daughter to give evidence as a witness on his behalf, for the reasons best known to him, he has not examined her. He has also failed to examine any witnesses of Thummalakondi Harijanawada Village, where he claims to have gone, after being assaulted by P.W-1 and his family members, prior to the incident. Thus, the alibi set up by the appellant remained a mere ipsi dixit without being supported by any evidence whatsoever.

On the contrary, the appellant himself admitted in his Section-313 Cr.P.C. examination that mediation was held, that it was false to say that his wife refused to go with him and that at the instance of P.W-1, he was constrained to stay in P.W-1's house as he was due to receive some money from P.W-1. Though P.W-4 has not fully supported the case of the prosecution regarding the mediation, the appellant himself has admitted that such mediation has taken place. This clearly suggests that there were quarrels and bitter feelings between the appellant on one side and the deceased on the other side. It is in this backdrop, that we need to examine the veracity of the evidence of P.Ws.1 and 2. P.W-1 being the father-in-law of the appellant has no axe to grind against him. It was not even suggested to P.

W-1 in his cross-examination that there were ill-feelings between him and the appellant. It is also not in serious dispute that all the members of P.W-1's family were sleeping outside their house at the same place where the appellant and the deceased were also sleeping. It is the specific version of P.W-1 that on noticing the altercation between his daughter and his son-in-law, he followed them to the barren land situated at some distance away from his house and that on hearing the noise, his other family members including P.

the house of P.W-1, followed him. The presence of P.Ws.1 and 2 at their respective houses at the time of the incident is not disputed. Therefore, it was not unnatural for P.Ws.1 and 2 to be present at the scene of offence, on hearing loud noise created by serious altercation between the appellant and the deceased. Therefore, the presence of P.Ws.1 and 2 at the scene of offence cannot be doubted. The time of the lodging of the First Information Report itself indicates that there is no room for any confabulations as, the incident is alleged to have taken place at about 1.30 a.m., and the complaint came to be filed at 5 a.m., itself.

P.W-3 also appears to be a natural witness whose mulberry fields are stated to be situated in the neighbourhood of the barren land, where the incident has taken place. He has also deposed that on hearing the cries, he came out of the shed situated in his field and rushed to the scene of offence, by which time, he has seen the appellant going away. Though he has not witnessed the actual occurrence, he appears to be a natural circumstantial witness and the fact that he was also listed as an eye-witness under Ex.P-2-Inquest report itself shows that his presence at the scene of offence, immediately after the occurrence, cannot be doubted.

While the above discussed aspects leave us in no doubt that the evidence of P.Ws.1 to 3 is not only cogent, but also consistent, the defence has come out with an improbable theory that some enemies of the deceased might have killed her. It failed to point out the names of such persons. The absence of any dispute about the cause of the death, the presence of the appellant with the deceased prior to and during the occurrence and failure of the defence to probabilize the killing of the deceased by anybody else as suggested by it, would convince us to accept the case of the prosecution that it is only the appellant who has committed the murder of his wife.

As regards the submission of the learned counsel for the appellant that no separate scene of offence panchanama was prepared, as noted herein before, P.W.8 has clearly deposed that he has not prepared separate scene of observation panchanama, but he has incorporated his observations of the scene of offence and seizure of the incriminating material in Ex.P.2 - inquest report itself. Paragraph 8 of Ex.P.2 reads as under: "The corpse was seen in the barren fields of Mahaboob Basha situate on the western side of Kalibanda Harijanawada Village of Chinnamandam (Mandal). At a distance of 100 yards towards East from the place where the body was found, there is street road, running north-south, with a Tar road leading from Peddamandam to Chinnamandam, at a distance of 150 yards towards southern side. Towards East of the said street road

there is house of complainant - cum- deceased's father Talari Venkataramana. The said house was facing North. Towards north from the place of offence at a distance of 50 yards, there is cattle shed belonging to Talari Nagaiah and towards North of it, there is residential hut of Talari Nagaiah, S/o. Musalaiah. At a distance of 2 feet from the scene of offence there is country thorn tree and towards sought of it, at some distance, there is another country-thorn tree and the remaining place, at the scene of offence, is a barren field. There are bloodstained on the earth situate towards west from the place of offence. The C.I. of Police seized the bloodstained earth and control earth found at the scene of offence, for the purpose of further investigation." The contents of the above reproduced paragraph coupled with Ex.P.

7 - rough sketch of the scene of offence would clearly explain the place at which the offence has taken place. The defence failed to suggest any prejudice caused to the appellant, leave alone proof, due to failure of the Investigating Officer to prepare scene of offence panchanama separately. The deficiency, if any, due to non-preparation of any scene of offence panchanama is made good by the detailed description of the scene of offence in Ex.P.2 report and also pictorially described in the rough sketch.

Added to the above evidence, the medical evidence is fully corroborated with the ocular testimony of P.Ws.1 and 2. M.O.1 was seized from the possession of the appellant under Ex.P.4 - panchanama. The evidence of P.W.5 - Village Revenue Officer

clearly establishes the fact that M.O.1 was recovered at the instance of the accused from his house. P.W.6 - Doctor has clearly stated that the two injuries on the body of the deceased might have been caused with a sharp edged weapon, and he denied the suggestion of possibility of the injuries being caused by a fall from a tree on some projected and sharp edged objects. The Medical Officer also opined that the injuries could not have been caused except with the weapon like M.O.1. That the injuries are caused with M.O.1 is also amply borne out from the report of the Forensic Science Laboratory - Ex.P.8. The Assistant Director of the Forensic Science Laboratory gave the report that the blood on metal dagger (M.O.1) is of 'B' group origin and the same was tallied with the blood group ('B') on the torn blouse and saree (M.Os.4 and 5).

As regards the submission of the learned counsel that M.O.1 was described differently on different times by different witnesses, in Ex.P.1 report it was described as 'baku' in Telugu, which means, dagger, if truly translated. P.Ws.1 and 2 also in their evidence described the weapon as dagger. P.W.5, the Village Revenue Officer, who is a witness to the seizure report, and P.W.9, the Investigating Officer, described the weapon as 'surakatthi' which means a knife. In our opinion, this variation is not very material for the reason that both are sharp edged

weapons. The only difference being the dagger is short in size and sharp on both sides, while the knife also has pointed edge like dagger and sharp on one side. As noted above, P.W.6 has opined that the injuries could have been caused with a weapon like M.O.1. No suggestion was put to the Doctor that the injuries could not have been possible with M.O.1. We are, therefore, unable to accept the submission of the learned counsel for the appellant on this aspect.

For all the reasons mentioned above, we are of the opinion that the prosecution has proved the guilt of the appellant beyond reasonable doubt and the lower Court has rightly convicted the appellant for the offence under Section 302 IPC and also under Section 506 Part II IPC and sentenced him to suffer the sentence as stated above. Hence, we do not find any reason to interfere with the judgment of the lower Court. The criminal appeal is therefore dismissed.

________________________ C.V. NAGARJUNA REDDY, J _______________________ M.S.K. JAISWAL, J 17-10-2016 dr/bnr