Katta Penchalaiah v. The State Of Andhra Pradesh,

HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND HON'BLE SRI JUSTICE T. AMARNATH GOUD CRIMINAL APPEAL No.680 OF 2011 JUDGMENT : (per Hon'ble Sri Justice T.Amarnath Goud) 1) The sole accused in Sessions Case No.45 of 2010 on the file of the V Additional Sessions Judge (III Fast Track Court), Nalgonda at Miryalaguda, is the appellant herein. He was tried for the offence punishable under Section 302 IPC, for causing death of his wife Atchamma (hereinafter referred to as " deceased No.1" ) and one Roshaiah (hereinafter referred to as " deceased No.2" ) on 10.05.2009 by beating them with an axe. By its judgment dated 10.05.2009, the Sessions Judge, convicted the accused and sentenced him to suffer " imprisonment for life" and to pay fine of Rs.5,000/ - in default to suffer simple imprisonment for a period of six months.

2) The facts as culled out from the evidence of the prosecution witnesses are as under:

i) Accused is the husband of deceased No.1. PWs.2 and 3 are the children of accused and deceased No.1. PWs.1 and 5 are neighbours. PW.4 is the sister-in-law of deceased No.1. PW.6 is the elder brother whereas PW.10 is the wife of deceased No.2. The marriage between the accused and deceased No.1 took place about 20 years prior to the date of incident. The accused used to

harass deceased No.1 suspecting her fidelity stating that she was having illicit intimacy with deceased No.2. On 10.05.2009 there was a quarrel between accused and deceased No.1 and later the accused beat deceased No.1. At that point of time PW.5 and others intervened and pacified them.

ii) On 11.05.2009 at about 10.00 a.m., when deceased No.1 and PW.2 were in the front room of the house, the accused entered into the house and started axing deceased No.1. On seeing the same, PW.2 raised cries. On hearing the same PWs.1 and 3 rushed to the scene and saw the accused axing deceased No.1. When PWs.1 and 3 tried to intervene, the accused threatened all of them with dire consequences. Then, accused followed deceased No.2 and axed to death.

ii) Basing on the report, (Ex.P1) lodged by PW.1, PW.18-the Sub-Inspector of Police, Vijayapuri, registered a case in Crime No.49 of 2009 for the offence punishable under Section 302 IPC and issued Ex.P20-the first information report. On receiving the first information report, PW19-the Inspector of Police, Jeedimetla Police station, took up investigation, proceeded to the scene of offence. He conducted a panchanama of the scene of offence in the presence of PW.11 and others and also prepared a rough sketch of the scene. Ex.P4 is the scene of offence panchanama and Ex.P5 is the rough sketch. He, then conducted inquest over the dead body of both the deceased in the presence of PW.11 and others. During inquest, he examined PWs.2 to 6 and PW.10. Thereafter,

the dead bodies were sent for postmortem examination. PW.12the Civil Assistant Surgeon, K.N.Area Hospital, Nagarjuna Sagar, conducted autopsy over the dead body of deceased No.1 and issued Ex.P8-the postmortem examination report. According to him, the cause of death was " due to multiple injuries" . PW.13-the Civil Assistant Surgeon, K.N.Area Hospital, Nagarjuna Sagar, conducted autopsy over the dead body of deceased No.2 and issued Ex.P9-the postmortem examination report. According to him, the cause of death was " due to hipovolemic and neurogenic shock" . On 12.05.2009, PW.19 arrested the accused at Hill Colony bus stand and interrogated him. On the basis of confession, which was recorded in the presence of PW.14, the accused lead them to backyard of Government Junior College, Nagarjunasagar and got recovered one axe-M.O.

1, which came to be seized under Ex.P11. Thereafter, PW.20-the Inspector of Police took up further investigation. He examined PWs.8 and 9 and recorded their statements. During the course of investigation, PW.20 seized M.O.9-the cell phone of the accused, and also seized M.O.10-the cell phone of deceased No.2. He got obtained the call details of the two cell phones. After collecting all the necessary documents, PW.20 filed the charge sheet before the Court of Judicial First Class Magistrate, Miryalaguda, who inturn committed the case to Sessions Division under Section 209 of Cr.P.C. On committal, the same came to be numbered as S.C.No.45 of 2010.

3) On appearance, charge under Section 302 IPC was framed, read over and explained to the accused. The plea of the accused is one of total denial.

4) To substantiate their case, the prosecution examined PWs.1 to 20 and got marked Exs.P1 to P23 and MOs.1 to 14. After the closure of prosecution evidence, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him, in the evidence of the prosecution witnesses, to which he denied. No oral or documentary evidence was adduced on his behalf, in support of his defence.

5) After considering the oral and documentary evidence on record, the trial Court believed the evidence of PWs.1 to 4 and convicted the accused in the manner referred to above. Challenging the same, the present appeal is filed. 6) Learned counsel for the appellant would submit that there are no independent eye witnesses to prove the incident and P.Ws.2 and 3 were not present at the scene of offence and that they were in the house of P.W.4. He further submits that P.Ws.2 and 3 are child witnesses and they are not competent enough to understand and depose to the facts. He further submits that no credence can be given to the evidence of PW.2 who is child witness, as there are indications to show that it was a tutored version. 7) The learned Public Prosecutor would submit that the evidence of the prosecution witnesses i.e., P.Ws.1 to 4 clearly

establishes that the accused killed deceased Nos.1 and 2 and the motive behind killing them is due to illegal intimacy of deceased No.1 with deceased No.2.

8) In order to appreciate the rival contentions, it would be useful to extract the evidence of P.Ws.1 to 4 with regard to motive and incident proper, which is as under: 9) P.W.1 in her evidence deposed as under:

" One day prior to the incident, there is a quarrel between the accused and the deceased No.1 at about 12-30 PM at their house. On the date of the incident on 11-5-2009 at about 11-30 AM., deceased No.1 and L.W.-2 to 4 are at the house of L.W-5 Thirupathamma. I was attending works in my house L.W-2 Maheshwari came to me and informed me that the accused axing the deceased No.1 upon that I rushed to that place and found the accused armed with an axe and on seeing us he threatened by stating that he already killed deceased No.1 and he will also kill us. Due to fear, I come to a side and then the accused followed to the deceased No.2 Roshaiah and axed him. Then we went inside the house and found the dead body of the deceased No.1 and found the injuries on her body." 10) P.W.2 in her evidence deposed as under:

"

The deceased No.2 found dead at a distance of ten yards from the house of L.W.5 Thirupathamma where the deceased No.1 killed. On the previous day of the incident, a gallata has taken place between my mother and father. At the time of the incident, myself and deceased No.1 and my brother and sister i.e., L.W.3 and 4 are in the house of L.W.5 Thirupathamma.

L.W.5 is the wife of my uncle Srinivas. The deceased No.2 came to us. Then the accused came there armed with axe and axed my mother i.e., deceased No.1. Then I rushed to the house of P.W.1 and informed her that the accused axing the deceased No.1 and then P.W.1 came to the place of the incident. Then the accused threatened P.W.1 with dire consequences by showing axe. Later, the accused followed deceased No.2 and also axed him."

11) P.W.3 in his evidence deposed as under:

" One day prior to the incident, the accused beat the deceased No.1. Then L.W.6 to 8 intervened and settled the dispute between the accused and my mother (deceased No.1). After that incident, we are staying in the house of L.W.5 Thirupathamma by leaving my father at the house.

On the date of the incident, myself and L.W.3 are in the backyard in the house and the deceased No.1 and P.W.2 are in the front room of the house. Then the accused entered the house and started axing the deceased No.1 and upon that P.W.2 rise cries and on hearing the crises, myself, L.W.3 went there and saw the accused axing the deceased No.1. Then P.W.2 rushed towards the house of P.W.1 and then P.W.1 came to the spot. Then the accused threatened all of us with dire consequences if we intervened.

After that we went out side of the house and saw the accused following the deceased No.2 and axing him nearby the house of L.W.5 on the road." 12) P.W.4 in her evidence deposed as under:

" One day prior to the incident, a quarrel has taken place between the accused and deceased No.1.

Thereafter, L.W.6 to 8 pacified the matter. After that incident, deceased No.1 and her children P.W.2, L.W.3 and P.W.3 came to my house. On the date of incident at about 10-00 AM, I am attending to my house works on the backyard of my house. L.W.3, P.W.3 are in the backyard of the house and deceased No.1 and P.W.2 are in the front room. On hearing the cries of P.W.2, I entered the house and saw the accused armed with axe nearby deceased No.1. On hearing our cries, P.W.1 came there. Then the accused followed deceased No.2 and killed him. I can identify the weapon used by the accused. M.O.1 is the Axe with which the accused killed deceased No.1."

13) Though all the four witnesses were cross-examined at length, nothing useful was elicited to discredit their testimony. As seen from the evidence on record, during the course of cross examination, P.W.1 denied the suggestion that the accused harassed the deceased No.1 for having illegal intimacy with deceased No.2. She also denied the suggestion that they are having grudge against the accused for not maintaining his family members. PW.2 in her cross-examination denied the suggestion that the accused was not present in the village on the date of incident and also the suggestion that she is deposing falsely at the instance of P.W.1, her grandmother and other relatives. PW.3 in her cross-examination denied the suggestion that deceased No.2 killed deceased No.1 and also the suggestion that they are having grudge against the accused. PW.-4 in her cross-examination denied

the suggestion that as deceased No.1 refused to satisfy the lust of deceased No.2, he killed deceased No.1 and that as they are having grudge against the accused, foisted the case against the accused. 14) In Radhey Shyam v. St at e of Raj ast han1, the Apex Court categorically held that the evidence of child witness must be subjected to close scrutiny to rule out the possibility of tutoring and it can be relied upon if the Court finds that the child witness has sufficient intelligence and understanding of the obligation of an oath. It was further held that as a matter of caution, the Court must find adequate corroboration by other evidence on record, in which event the same can be accepted without hesitation. 15) It is to be noted that the evidence of PWs.2 and 3 can be acted upon as they are capable enough to understand the things.

In fact, even their evidence came to be recorded only on being satisfied about their mental capacity. There can be no better witnesses than PWs.2 and 3, who are children of the accused and deceased and whose presence at the scene was natural. Apart from that it is also to be noted that PWs.1 to 4 in one voice categorically stated that after killing deceased No.1, the accused followed deceased No.2 and killed him with an axe. 16) With regard to motive, PWs.1 to 4 categorically stated that the accused used to beat deceased No.1 suspecting her illicit intimacy with deceased No.2.

or disbelieve the evidence of PWs.1 to 4, who are the eye witnesses to the incident.

17) For the aforesaid reasons, we are of the opinion that the prosecution succeeded in establishing the guilt of the appellant/ accused beyond reasonable doubt and the trial Court has rightly convicted the appellant and sentenced him as stated supra. 18) Accordingly, the Criminal Appeal is dismissed.

Consequently, miscellaneous petitions, if any, pending shall stand closed.

___________________ C.PRAVEEN KUMAR, J _____________________ T. AMARNATH GOUD, J 31.10.2017 TJMR/ gkv