Kanem Nageswara Rao, v. The State Of Andhra Pradesh,
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65 of 2009 on the file of the Principal Sessions Judge, East Godavari, Rajahmundry, whereunder and whereby, the appellants/A.1 & A.2 were found guilty of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short, "I.P.C.") and further, the second appellant/A.2 was found guilty of the offence punishable under Section 324 I.P.C, and accordingly, A.1 & A.2 were convicted and sentenced to undergo life imprisonment and to pay fine of Rs.5,000/- each, in default, to undergo simple imprisonment for three months each for the offence punishable under Section 302 read with 34 I.P.C; and A.2 was convicted and sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 324 I.P.C. 2.
The brief facts that are necessary for disposal of the appeal may be stated as follows: The accused (A.1 & A.2) and the Gantha Nageshwar Rao (hereinafter referred to as 'the deceased') are residents of Duppalapalem village, Addateegala Mandal. On 24.04.2007 at about 4:00 p.m, PW.1 Ex-sarpanch of the village and the deceased went to the village tank and when they were returning back, they came across two persons and one of them i.e., PW.6 called the deceased and asked him as to whether he is Kanem Nageshwar Rao (A.1). The deceased answered that he is Ganta Nageshwar Rao, but not Kanem Nageshwar Rao. The said persons disclosed that they are police constables of Prathipadu police station and also stated that they came to execute the warrant issued by the Judicial Magistrate of First Class, Prathipadu, against A.
1, for which the deceased stated that he is not aware of A.1. Further, on the same day, i.e., on 24.04.2007 at 8:00 p.m, when the deceased, his wife, PW.3 and others were watching T.V programme in the Verandah of Podugu Gangamma, A.1 & A.2 went there. A.1 asked the deceased as to what he stated to the police against him and further, compelled the deceased to proceed to the house of PW.1. All of them went to the house of PW.1 and at that time, PW.1 was sitting on the pial of his house. When the deceased was questioning PW.1 as to what he told to the police, A.1 dealt a blow on the left side bottom portion of the neck, on the back of the neck and also on the left shoulder of the deceased with a curved knife. When the deceased raised his right hand to escape from the blow, he received a cut injury on the right hand little finger. A.
2 beat the deceased on the back of the deceased with a stick. When PW.1 intervened, A.1 bet him with the knife on his below right thumb and when PW.2 intervened, he gave a blow with the same knife on his left upper arm. The neighbours Shaik Basheer, Sadela Nagaraju (PW4) and others came there and caught hold of the accused, but they escaped from the place by leaving the knife used by A.1. The deceased was taken to Government Hospital, Addateegala, on the jeep of PW.5 by PW.1, PW.2, Ganta Laxmi and others. The duty doctor in the Government Hospital, Addateegala, examined the deceased and stated that the deceased died and one doctor at Addateegala treated PWs.1 & 2 for their injuries. Later, PW.1 gave a report Ex.P1 in the police station of Addateegala and at that time, PW.2 and others were present. Basing on the report, on 24.04.
2007 at about 11:45 p.m, PW.10 the Sub-Inspector of Police, Addateegala Police Station, registered a case in Crime No.45 of 2007 for the offence punishable under Sections 302 & 324 read with 34 I.P.C against the accused and issued Ex.P12-First Information report to all concerned. On 24.04.2007 at 12:00 midnight, PW.11Inspector of Police, Addateegala, received information regarding the registration of the case, went to the police station and took up investigation in this case. On 25.04.2007, he inspected the scene of offence, seized blood stained knife, blood stained earth and control earth from the scene of offence, prepared a rough sketch of the scene of offence, got the scene of offence and the dead body of the deceased photographed through PW.7, held inquest over the dead body of the deceased in the presence of PW.
8 and another, and sent the dead body for post-mortem examination. On 25.04.2007, PW.9-the Civil Assistant Surgeon, Government Hospital, Addateegala, conducted post-mortem examination over the dead body of the deceased and found five injuries on the body of the deceased. The doctor opined that the cause of death was due to haemorrhage and also stated that the injuries were possible by means of weapon like MO.1 and injury No.1 was sufficient to cause the death of the deceased. PW.9 issued Ex.P7 post-mortem report to that effect. Further, he also examined PW.1 in the hospital, found one injury and issued Ex.P8 wound certificate. PW.9 has also examined PW.2, found one abrasion on the left upper arm and issued Ex.P9 wound certificate. On 27.04.2007, PW.11 arrested the accused and interrogated them in the presence of PW.8 and another. A.
1 made a confession before the police and pursuant to the said confession PW.11 went into his house and produced a bundle, which contain clothes marked as MOs.4 to 9. The said MOs were seized under the cover of seizure panchanama-Ex.P6. The accused were produced before the Judicial Magistrate of First Class, Addateegala, sent for judicial remand and thereafter, on 30.01.2008, after completion of investigation, PW.11 filed the charge sheet into the Court. 3. On appearance of the accused, the trial Court framed the following charge against them: "That you (A.1 and A.2) the accused on the night of 24.04.2007 at about 10-00 p.m, in the house of Podugu Gangamma in Duppalapalem village, Addateegala Mandal, did vit.
you the 1st accused hacked on the left jaw and rear side of the head of the deceased with a curved knife and caused severe bleeding injuries on his left jaw, rear side of the head and little right finger and after the deceased fell down, you the 1st accused held him tightly and you the 2nd accused beat with a stick on the back of the deceased indiscriminately with an intention to kill him by which he died and thereby committed an offence punishable U/S.302 r/w 34 of the Indian Penal Code and within my cognizance. And I hereby direct that you be tried, on the above said charge." 4. When the above charge was read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 5. To substantiate the charge, the prosecution examined P.Ws.1 to 11 and got marked Exs.P-1 to P-19, besides the case properties MOs.
1 to 9. 6. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same. On behalf of the accused, Exs.D1 & D2 were got marked. 7. The trial Court after hearing both sides and taking into consideration, the oral and documentary evidence available on record, convicted and sentenced the appellants/A.1 & A.2 as stated above. Aggrieved by the said conviction and sentence, the present appeal has been preferred by the appellants/A.1 & A.2. 8. The learned counsel for the appellants/A.1 & A.2 argued that the accused are innocent and not committed any offence; that the trial Court has not framed the charge against A.2 for the offence punishable under Section 324 I.P.
C and no weapon i.e., stick was recovered from her; that as per the evidence of eye witnesses, A.2 accompanied A.1 and they never stated that she was holding a stick and therefore, A.2 attacking the deceased with a stick is false and not proved; that the deceased has not received any injury on his back as stated by the eye witnesses; that A.2 has no common intention to kill the deceased, she has not participated in the commission of offence, she has not shared the common intention along with A.1 and she was falsely implicated in this case; and that the medical evidence is against the evidence of PWs.1 & 3 regarding the injuries on the dead body of the deceased. Further, the learned counsel for the appellants/A.1 & A.2 also argued that as per the evidence of eye witnesses, only A.1 caused the injury to the deceased; that A.
2 being the wife, followed A.1 to the house of PW.1 and she does not have any common intention to attack the deceased and therefore, the conviction of A.2 for the offence punishable under Section 324 I.P.C cannot be sustained. It is also argued that there are six persons in the village by name Nageshwar Rao; that there are contradictions in the evidence of PWs.1 to 3; that the medical evidence is not corroborating with the evidence of PWs.1 to 3 and finally prayed the Court to set aside the conviction against A.2 by allowing the appeal as the prosecution failed to prove the charges against her for the offences punishable under Sections 302 read with 34 & 324 I.P.C. 9. On the other hand, the learned Public Prosecutor appearing for the State argued that A.2 accompanied A.1 to the house of PW.1 and she facilitated her husband A.
1 to attack the deceased, as such A.1 attacked the deceased and caused stab injury due to which the deceased died. It is also argued that there is a swelling on the right side of the head and that would be caused by A.2 with the stick, therefore, A.2 is not entitled for any acquittal and the trial Court after considering the evidence on record rightly convicted both the accused and the said finding needs no interference. 10. Now, the points for determination in this appeal are as follows: 1. Whether the death of the deceased is a homicidal death? 2. Whether the prosecution is able to prove its case beyond all reasonable doubt against the appellants/A.1 & A.2 of the offences punishable under Sections 302 read with 34 & 324 I.P.C? 3. Whether the Judgment of the trial Court is correct, legal and proper?" 11.
P O I N T S: From the perusal of the evidence of doctor PW.9, it is evident that on 25.04.2007, he conducted post-mortem on the dead body of the deceased and found the following external injuries: A sharply cut lacerated wound on the lower part of the left side of the face from the lower jaw to the neck of size 9 cms X 3 cms with exposure of the lower jaw and clotted blood at the spot. A completely cut lacerated wound on the right hand at its little finger 3 X 2 cms. Lacerated wound on the back of the head of size 3 X 2 cms.
right side of the head of size 3 X 2 cms. A cut lacerated injury on the left side of the neck of size 3 X 2 cms. On the internal examination he also found the following: The lower jaw on the left side was fractured and the vessels of the neck were cut and the bleeding from the vessels was very severed. The ribs and thoracic, liver, spleen, kidney, genetal organs and skull were intact. PW.9 gave opinion about the cause of death of the deceased as due to haemorrhage and issued post-mortem certificate Ex.P7 to that effect. PW.9 also stated that all the injuries were possible by means of weapon like MO.1 and injury No.1 was sufficient to cause the death in the normal course of events. Further, PW.8 who worked as Village Revenue Officer, Vetamamidi, Addateegala Mandal, stated that police called and took him to the house of PW.
1 at Duppalapalem village; that there he found a pool of blood in the Verandah of the house and also found sprinkling of the blood on the threshold of the house; that there, the Inspector of Police conducted scene of offence panchanama and seized the knife in his presence; that they returned to the police station and from there, they went to the Government Hospital, Addateegala, where they found the dead body of the deceased in the mortuary of the hospital; that the Inspector of Police conducted inquest over the dead body of the deceased under Ex.P4 inquest report; and that himself, one P. Venkateswara Rao, Village Revenue Officer, Tungamadugula village and Varada Rani, Sarpanch of the village were also present at that time as mediators and they gave opinion that the deceased died due to injuries on the neck and back. PW.
7 is the photographer, who took photographs under Exs.P2A to P-2E. Thus, from a careful reading of the evidence of the doctor along with other evidence PWs.7 & 8, it is found that the death of the deceased is a homicide. 12. A perusal of the evidence of the complainant-PW.1 and also his evidence shows that on 24.04.2007, himself and the deceased went to the bank of Duppalapalem village and at about 4:00 p.m, when they were returning back, they found two persons and one of them called the deceased and asked as to whether his name is K. Nageshwar Rao. On that, the deceased answered that his name is G. Nageshwar Rao and not K. Nageshwar Rao. They informed PW.1 that they are policemen of Prathipadu police station, came for arrest of K. Nageshwar Rao on a warrant issued by the Judicial Magistrate of First Class, Prathipadu, and asked PW.
1 and the deceased, the whereabouts of the deceased K. Nageshwar Rao. The deceased replied that he was not aware of K. Nageshwar Rao. PW.1 also stated that on the same day at about 8:00 p.m, he was sitting on the pial of his house and at that time accused, deceased and family members of the deceased i.e., PWs.2, 3, his brother-in-law N. Venkata Ramana and his wife came to his house. Then the accused asked PW.1 as to what deceased informed to the police about him and then the deceased came to PW.1 and questioned him as to whether infact he informed anything against A.1 to the police and then A.1 dealt a blow with a knife on the left back and bottom portion of the neck of the deceased. Due to the said attack, the deceased fell down and when he raised his right hand to ward off the blow, he received injury on his right hand little finger. A.
2 also followed A.1 and attacked the deceased with a stick on the head and back of the left shoulder. When PW.1 tried to rescue the deceased, A.1 dealt a blow on the dorsum of his right hand i.e., in between his right thumb and right hand wrist, likewise PW.2 also received a injury on her upper arm with a knife. After hearing the cries of PW.1 and others, the neighbours came and caught hold both the accused and later, both the accused escaped from the place leaving the knife MO.1 there. Immediately, the deceased was shifted to Government Hospital, Addateegala and PW.1 lodged a complaint to the Sub-Inspector of Police, Addateegala. The same was registered as Crime No.45 of 2007 for the offences punishable under Sections 302 & 324 read with 34 I.P.C and PW.10-Sub Inspector of Police issued First Information Report Ex.P12. 13.
The evidence of PW.2-sister of the deceased corroborated the evidence of PW.1 in all aspects. According to her on the date of incident, she was watching TV programme in the house of Podugu Gangamma along with the deceased, his wife and other relatives. At that time both the accused came there and questioned the deceased as to what he stated to the police of Prathipadu about him and insisted to come along with him to the house of PW.1. Then all of them including the deceased went to the house of PW.1. Thereafter, A.1 attacked the deceased with the axe and his wife-A.2 attacked the deceased with a stick on his back. The evidence of PW.3 also corroborated the evidence of PWs.1 & 2 regarding the manner of the attack made by the accused. After the incident, the injured was taken by PWs.
5 & 6 to the Government Hospital, Addateegala, where he died. PW.11-Inspector of Police took up investigation, recorded the statements of PWs.1 to 3 and other witnesses, seized knife, control earth and blood stained earth under MOs.1 to 3 and sent the same to the Foreignsic Science Laboratory. Thereafter, he conducted inquest in the presence of mediators and got photographed the scene of offence through PW.7. PW.9 is the doctor, who conducted post-mortem over the dead body of the deceased and gave an opinion that all the injuries were possible by means of weapon like MO.1 and the first injury was sufficient to cause the death in the normal course of events. PW.9 also examined PWs.1 & 2 and issued wound certificates Exs.P8 & P9.
Though there are some minor discrepancies and contradictions in the evidence of witnesses, they are very minor and those discrepancies will not change the case of the prosecution regarding the manner of attack made by A.1. Thus, it is clear from the evidence of PWs.1 to 3 that on the date of incident, A.1 has attacked the deceased with a knife and causing the bleeding injuries due to which the deceased died. 14. The learned counsel for the appellants/A.1 & A.2 mainly insisted that there is no specific overtact against A.2 and she does not have any motive for causing injury; that being a wife, she accompanied A.1; that no charge of the offence punishable under Section 324 I.P.C was framed against A.2 and no weapon was recovered from her and none of the witnesses have stated when she followed A.
1 she was having a stick in her hand and therefore, prayed the Court to take a lenient view and acquit her from the charges. 15. A perusal of the post-mortem report does not disclose any injury on the back of the deceased caused by a weapon like stick. A.2 being the wife of A.1 must have accompanied A.1 with anxiety because she has knowledge that Addateegala police were searching for her husband with a warrant. The prosecution in this case has not produced any evidence that A.2 was having motive or knowledge about the offence. Further, the trial Court not framed any charge against A.2 for the offence punishable under Section 324 I.P.C. Therefore, the role of A.2 in this case is not significant and not sufficient to disclose the common intention along with A.
1 in taking away the life of the deceased and thus, benefit of doubt can be given to A.2. 16. Therefore, we are not inclined to accept the reasons given by the trial Court to convict the second appellant/A.2 for the offences punishable under Sections 302 read with 34 & 324 I.P.C, and accordingly, the conviction and sentence recorded by the trial Court as against second appellant/A.2 are liable to be set aside. But, so far as the conviction and sentence of the first appellant/A.1 for the offence punishable under Section 302 I.P.C are concerned, there is ample evidence on record and the same need no interference by this Court. 17. In the result, the conviction and sentence passed by the learned Principal Sessions Judge, East Godavari, Rajahmundry, in S.C.No.65 of 2009 against first appellant/A.
1 for the offence punishable under Section 302 I.P.C. are confirmed. But, the conviction and sentence passed by the trial Court against the second appellant/A.2 for the offences punishable under Sections 302 read with 34 & 324 I.P.C. are hereby set aside and accordingly, she is acquitted of the said offences and set at liberty. The second appellant/A.2 shall be released forthwith, if she is not required in any other case. 18. Accordingly, the Criminal Appeal is partly allowed. Miscellaneous petitions, pending if any in this criminal appeal shall stand closed. ______________________ JUSTICE K.C.BHANU _______________ JUSTICE ANIS Date: 12.06.
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