Ade Bhaskara Rao vs State and Another

Krishna Saran Shrivastav, J.—This is an appeal against the judgment and order of the Metropolitan Sessions Judge, Vijayawada, convicting the appellant u/s 302 IPC for murdering his foster father and sentencing him to imprisonment for life.

Briefly stated, the case of the prosecution is that the deceased, who was a rickshaw puller by profession, had brought up the appellant from his childhood and about two years prior to the incident, the appellant liad started staying in the adjoining hut after getting married. PW1 and PW8 are the elder brothers of the deceased. All these persons resided in the same locality, that is, near Eluru canal situated opposite to the Government Hospital Vijayawada, but in different huts. The deceased used to ask the appellant for money for his maintenance and on such occasions, there used to be wordy quarrel between them. On 17-8-1994, on the Government Hospital road Vijayawada, at about 8 a.m., the deceased and the appellant quarrelled with each other over maintenance money and had grappled each other. In this scuffle, the shirt of the appellant was torn. The appellant went to his hut, which was situated at a distance of about a furlong away from that place, brought a knife and gave blows with it on the chest of the deceased causing bleeding injuries and fled away. The deceased also ran a distance of few yards and fell on the ground near the houses of PW4 to PW7 who were standing near their houses. They went near the deceased who informed them that his son had stabbed him and then became speechless. PW2 who is also a rickshaw puller, white taking a passenger in his rickshaw, had reached near the place of incident and after seeing the incident had gone to the hut of PW1 and narrated the story to him and brought him to the place where the deceased had fallen down. PW1 found his brother dead and reported the matter vide F.I.R., Ex.Pl, to flic police. The Investigating Officer, PW16 went to the scene of offence, examined the witnesses and ''seized blood stained earth and other articles. He-got the dead body photographed and sent it for postmortem examination. The Doctor. PWI1, conducted autopsy of the deceased and found four wedge shaped stab injuries, three on the left side and one on the right side of the chest as also one abrasion on the neck ofthe deceased and opined that the third wedge shaped stab injury on the left side of the chest entering into the ventricle was fatal. On 20-8-1994, the Investigating Officer, PW16, at about 5.15 a.m. obtained a disclosure statement from the appellant and recovered a knife, M 0.6 in pursuance thereof and seized it. After usual investigation, the Investigating Officer charge-sheeted the appellant u/s 302 IPC.

The trial Court framed charge u/s 302 IPC. The appellant abjured the guilt and claimed to be tried.

The prosecution examined PW1 and PW3 as eye-witnesses to the incident. It also examined PWs.4 to 7 in an attempt to prove the oral dying declaration.

The trial Court, on assessment of the evidence on record, reached the conclusion that the deceased had met with a homicidal death and the accused/appellant was responsible for causing the death of the deceased. Holding so, the trial Court convicted and sentenced the appellant as aforesaid.

Feeling aggrieved by the judgment of conviction and sentence, the appellant preferred Crl. A No.38/1996. A Division Bench of this Court, vide judgment dated 13-12-1996, confirmed the findings recorded by the trial Court and dismissed the appeal. The appellant carried the matter to the Supreme '' Court in Appeal No.1123/1997 and the Supreme Court was pleased to set aside the judgment of the Division Bench of this Court and remanded the appeal for decision afresh.

Sliri T, Bali Reddy, learned senior Counsel appearing for the appellant, lias argued that the name of PW2 has not been mentioned in the FIR Ex..Pl. PW2 did not accompany PW1 brother of the deceased, to the police station where PW1 had gone to lodge the report and thus the conduct of this witness was abnormal. He has further argued that, according to the Doctor, PW11, it was not possible for the deceased to have walked about 50 yards from the place where he had received injuries and would have become unconscious at the scene of offence itself, thercfore, it was not possible for him to have told PWs.4 to 7 that his son had stabbed him, particularly because, according to PW2 people had gathered there after the deceased had thed. PW2 and PWs 4 to 7 are got up witnesses and they arc not worthy of reliance. Relying on the case of Surinder Kumar Vs. Union Territory, Chandigarh, , the learned Counsel has argued titat, even assuming that the appellant was responsible for causing injuries on the person of the deceased, the appellant cannot be held guilty u/s 302 IPC because he had inflicted the injuries in a sudden fight and without motive and, therefore, his offence conies u/s 304 Part II ofthe Indian Penal Code.

On the other hand, the learned Public Prosecutor has contended that PW2 was a rickshaw puller and was carrying a passenger in his rickshaw at the relevant time, therefore, he would not have accompanied PW1 upto the police station and hence his conduct cannot be said to be abnormal. He has contended that, omission of the name of PW2 in the FIR Ex.Pl is an immaterial omission and the evidence of PW2 cannot be brushed aside merely on this ground. He has also contended that the possibility of the deceased walking upto the place where he had fallen down cannot be ruled out, looking to the nature of the injuries received by him and, therefore, it cannot be said that the deceased did not make any dying declaration. He has lastly contended that it is not a case of sudden fight, because, the appellant had gone to his hut to bring knife in order to stab the deceased and thereafter had stabbed him three times by means of that knife and, therefore, it is a case of cold blooded murder.

PW2 has deposed that, on the day of incident, at about 8 a.m. when he was taking a passenger in his rickshaw on Ramgopal Street, he saw the deceased and the accused quarrelling with each other. The accused had stabbed the deceased on his chest thrice. The deceased fell down after going about 5-6 yards and the accused had fled away. Thereafter, he had gone to PW1 and had narrated the incident to him. He has also stated that the deceased and the accused had quarrelled on that day over money. In the cross-examination, he has stated that Ramgopal street is about half furlong away from the scene of occurrence. He wanted to interfere in the quarrel, but in the meantime, the accused had gone to his hut and brought a knife and had stabbed the deceased. At that time, he was present there with his passenger. The size of the knife which the accused had brought was about 8 to 10 inches in length and it was without handle-He was examined by the police on the same day at about 9 a.m. Two other persons were also examined at the same time. His evidence is corroborated by the evidence of PWl who lias deposed that on 17-8-1994 at about 8 a.m. Stibba Reddy, PW2, had come to him and had infomied him that the deceased and the accused had quarrelled and the accused had stabbed the deceased. In cross-examination, PWl has stated that the body of the deceased was found lying at a distance of about a furlong away from his hut.

It is pertinent to note that the omission in FIR regarding the omission of the name of PW2 was not put to PWl during his cross- ., examination and, therefore, he was deprived of the opportunity to explain the omission of the name of Subba Reddy, PW2, in the FIR, Ex.Pl. But, it was mentioned in the FIR that a rickshaw puller had informed him about the incident. The omission, thus, appears to be immaterial.

We get from evidence of PW2 that after narrating the incident, he had brought PWl to the place where the deceased had fallen down. True that this witness has not stated to have accompanied PWl upto the police station, but it appears to be an insignificant circumstance, particularly because, in cross-examination he has stated that police had examined him on the same day at about 9 p.m. Thus, his conduct of not accompanying PWl upto the police station cannot be said to be abnormal, particularly because, PW2 is a rickshaw puller and in the mean-time, he would have gone to reach his passenger to his destination.

PW2 has stated on oath that the deceased liad walked upto 5-6 yards and then liad fallen down. From the evidence of the Investigating Officer, PW16 it appears that he had collected blood from the scene of occurrence as also from the place where the deceased had fallen down. In cross-examination, he has stated that the distance between these two places was about 50 yards. PWs.4 to 7 have also stated that the deceased had come running with bleeding injuries on his chest and had fallen down near the lavatory of their houses. They had gone to the deceased and he had told them that his son had stabbed him and then thed within some time. Thus, the evidence of PWs,4 to 7 is corroborated by the said circumstance established by the evidence of PW16 that the deceased had covered a distance of about 50 yards before he had fallen down, PW2 is a rustic and illiterate villager and he was plying his rickshaw at the relevant time. Therefore, his estimate regarding the distance upto which the deceased had walked after receiving the injuries, appears to be a rough estimate. PW2 in cross-examination has stated that, people residing in the huts had collected near the body of the deceased after" his death, but neither he has stated about the coming of PWs.4 to 7 (whose houses are situated near that place) near the deceased after his death, nor the the cross-examining Counsel had even suggested to this witness that PWs.4 to 7 had also gathered there after the death of the deceased. The Doctor, PW11 , has stated in cross-examination that the victim could not have spoken more than few words after receipt of injuries to heart. As noted above, PWs.4 to 7 have also stated in one voice that the deceased had spoken only one sentence, that is, he was stabbed by his son. and then had thed. Thus, their evidence gets support from the evidence of PW11- Had not the deceased covered a distance of 50 yards after receiving the injuries, PW16 the Investigating Officer, would not have been able to collect blood from the said two places, the distance between which is about 50 yards - The Doctor, PW11 has stated in cross-examination that, after the receipt of injuries to heart, the victim would lose consciousness instantaneously and there would have been profused bleeding. But, he has not stated that the deceased must have lost consciousness immediately after receiving injuries on his chest. It is interesting to note that it was not specifically put to this witness that with the injuries which he had found on the chest of the deceased, it was not possible for the deceased to cover a distance of even 50 yards.

In the case of Nanhau Ram and Another Vs. State of Madhya Pradesh, , the Doctor, PW6 had stated in his deposition that a person getting such injuries as had been received by the deceased Dwarka Prasad, could not have survived more than 10 to 30 minutes and, therefore, it was argued for the appellant in that case that the deceased could not made the dying declaration. The High Court considered the evidence of the prosecution witnesses and observed that the medical opinion could not wipe out the direct testimony of a number of witnesses that Dwarka Prasad chanced to live after receiving the injuries and was in a conscious state to make the oral dying declaration. The Supreme Court found that this finding arrived at on appreciation of evidence was quite in accordance with law.

PWs.2 and 4 to 7 appear to be independent witnesses. Actually. PWs.4 to 7 did not know the appellant and the deceased from before the date of incident. Their houses were situated near the place wherd'' the deceased had fallen down and, therefore, their presence at the relevant time appears to be quite natural. There is no evidence on record that P\\V2 had affinity with the deceased and his brother, PW1 or animosity with the appellant. Under these circumstances, their evidence cannot be brushed aside on the strength of the medical opinion, because, as noted above, the fact that blood was recovered from two places within a distance of 50 yards corroborates the statements of PWs.4''to 7 that the deceased had covered 50 yards after receiving the injuries, and he was conscious when he made the dying declaration.

It is too well settled that reliance on the sole testimony of an eye-witness can be placed where his evidence is found to be wholly reliable, but at the same time, it is also true that it does not mean that each and every type of infirmity or minor discrepancy would render the evidence of such witness unreliable. The presence of PW2 on the spot at the relevant time appears to be natural and the details of the incident have been brought out in the cross-examination of this witness. There is no whisper in his evidence that under the influence of police, he has spoken lies in the trial Court. His evidence has been believed by the trial Court. We also find his evidence to be honest and cogent and we see no reason to take a contrary view. Nothing could be elicited during the cross-examination of PWs.4 to 7 which could weaken their testimony. There is ample evidence on record that the deceased was an unmarried man and he had brought up the appellant as his son. PWs.4 to 7 have stated that the deceased had told them that his son had stabbed him. Because the deceased had only one foster son. that is the appellant, it can be safely inferred that he had referred to the appellant only for causing the injuries on his chest.

PW3 has not supported the case of the prosecution. He has been contradicted by his case diary statement Ex.P2 which has been proved by the Investigating Officer, PWI6. It appears that he has turned hostile and, therefore, his evidence is neither of any help to the prosecution nor the accused/ appellant. The prosecution has not examined the rickshaw passenger. He was a total stranger and his whereabouts might not have been known even to the rickshaw puller, PW2 particularly because no question had been put to either PW2 as to where the passenger had gone or to the Investigating Officer, PW16, whether he had conic to know about the said passenger. Therefore, non-examination of the said passenger is not fatal to the case of the prosecution. The learned trial Court did not rely on the indirect evidence, that is recovery of the knife, and rightly so, particularly because no human blood was found on it and, therefore, the disclosure statement itself has become inadmissible in evidence. Whatever knife was utilised in the incident, it was not certainly the knife recovered and seized.

For the foregoing reasons, agreeing with the findings of the trial Court, we hold that the accused had inflicted injuries on the chest of the deceased and one of which had caused injury to heart which was responsible for his death.

In the case of Surinder Kumar (supra), PW2 and the deceased had gone to the house of the appellant for taking possession of the kitchen. PW2 quarrelled and had abused the appellant and had taken out a pen knife from his pocket whereupon the appellant had picked up knife from the kitchen and had run towards PW2 and had inflicted a simple injury on his neck. The deceased had intervened and two minor injuries were suffered by the deceased on his left arm and the fatal blow was then inflicted on the left flank at the level of the 5th rib which proved fatal. Under these circumstances, the Supreme Court held that in the course of the scuffle, the deceased had1 received injuries one of which proved fatal and taking an overall view of the incident, found that the appellant was entitled to the benefit of Exception 4 toy Section 300 IPC and had convicted the appellant u/s 304 Part I of the IPC instead of Section 302 IPC.

The case of Sitrinder Kumar (supra) is distinguishable on facts. The reason is that, in the case on hand, the incident has happened in two parts. During the first part, there was a scuffle between the deceased and the appellant, after exchange of heated words, In this scuffle, the shirt of the appellant was torn. The second part had taken place after the appellant has gone to his hut, which was situated at a distance of about one furlong away from dial place, and had brought a knife which was about 8 to 10 inches length and then he had given knife blows one after the other on the chest of the deceased. One of such incised wounds caused injury to heart which was found fatal. Under these circumstances, it cannot be said that in a sudden quarrel, the appellant had stabbed the deceased who was empty handed at the relevant time. Looking to the nature of the injuries and the manner in which they have been caused, it cannot be said that the case is covered by exception 4 to Section 300 IPC, particularly because the act of the appellant appears to be cruel and unusual. In our opinion, the prosecution has established that the appellant was determined to do away with the life of his foster-father because he had developed the liabit of demanding money often and on from the appellant.

In the case of Bhagirath Vs. Delhi Administration, , it is held that the person sentenced to imprisonment for life or sentenced to a term of imprisonment is entitled to set off the period of detention undergone as undertrial prisoner subject to the provisions contained in Section 433-A provided that orders have been passed by the appropriate authority u/s 432 or Section 433 of the Code of Criminal Procedure.

In the result, we confirm the judgment of conviction and sentence of the appellant and dismiss the appeal.

However, we order that the period already undergone by the appellant as undertrial prisoner should be set off subject to the provisions contained in Section 433-A and provided that orders are passed by the appropriate authority u/s 432 or Section 433 of the Code of Criminal Procedure.