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Judgment
This is a case of murder by none other than the full blood brother of the deceased. This Appeal arises from the judgment of the learned Sessions Judge, Visakhapatnam in Sessions Case No.47 of 1994 dated 22-9-1994 convicting the appellant u/s 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life.
The case of the prosecution in brief is that the appellant is eldest among four brother; P.W. 4, B. Chinnayya, the deceased Bodanna and Saddu being other brothers. They have partitioned their joint family property except the jack fruit orchard and tamarind garden. The appellant was enjoying the usufruct of the above garden by denying the share of the other brothers. In that connection, panchayat was held in the presence of P.W. 1, A.Ramakrishnarao and some others. The appellant was not willing to give share to the other brothers inspite of the verdict given by the panchayatdars. While so, on 18-8-1993 at about 6 p.m., there was an altercation between the appellant and the deceased and after exchanging words over the partition of garden lands, the appellant stabbed the deceased with ''Surakathi'' several times in the abdomen which resulted in the intestines coming out. The incident was witnessed by P.W. 2, B. Kamala who is widow of the deceased in this case. The deceased succumbed to the above injuries. Thereafter, the appellant went inside his house, which is nearby, and told P.W. 3, B. Mutta, his wife that he became angry and killed the deceased. The appellant was holding blood stained ''Surakathi'' in his hand at that time. Thereafter, P.W. 2 went to their caste elder by name Naidu and informed him about the incident. Naidu in turn visited the scene of occurrence and saw the deadbody and then, he sent for P.W. 5, Somala Kondappa and asked him to inform the Upa-sarpanch of Ananthagiri. Thereupon, S. Kondappa went to P.W. 1, Upa-Sarpanch and informed him about the incident. P.W. 1 in turn visited the scene of occurrence on the following day and after seeing the dead body, he prepared the complaint Ex. P.1 and lodged the same at Police Station, Ananthagiri where P.W. 9, Head Constable registered the case in Crime No. 29 of 1993 u/s 302 of the Indian Penal Code and issued F.I.R. to all concerned. P.W. 10, the Circle Inspector of Police took up the investigation on receipt of F.I.R. He proceeded to the scene of occurrence on the same day i.e. 19-8-1993 and examined the scene of occurrence in the presence of mediators and held inquest over the deadbody. He also got the scene of occurrence photographed and prepared Ex. P. 7, rough sketch. The deadbody was sent to Srungavarapukota for post-mortem examination. P.W. 7, Dr. V. Bhaghavanulu, Civil Assistant Surgeon, Community Hospital, Srungavarapukota conducted autopsy over the deadbody and found as many as six stab injuries and one liniear abrasion over the dead-body and opined that the deceased died due to asphysia due to injury to plural cavity and collection of blood into pericardial cavity P.W. 10 arrested the appellant at the latter''s house and interrogated him in the presence of panchayat-dars viz., P.W. 6 and another and in consequence of the statement of the appellant, the blood stained ''Surakathi'' was seized from his house under seizure report Ex. P. 4. M.O. 1 is ''Surakathi'' which is said to have been used in the commission of the offence. The blood stained earth, control earth and blood stained clothes of the deceased as well as M.O. 1 ''Surakathi'' were sent to Forensic Science Laboratory for chemical examination and it is reported that M.O. 1 as well as the other objects contained human blood.
After completing the investigation, a chargesheet has been filed against the appellant for an offence u/s 302 of the Indian Penal Code in the Court of Mandal Executive Magistrate, Ananthagiri and the same was registered as P.R.C.No. 2 of 1993. The learned Magistrate perused the record and found that the case is exclusively triable by the Court of Session and hence, he committed the same to the Court of Session, Visakhapatnam. Thus, it came to be registered as S.C.No. 47 of 1994. A charge u/s 302 of the Indian Penal Code has been framed against the appellant and he pleaded not guilty to the said charge. During the trial, the prosecution has examined 10 witnesses.
P.W. 1, A. Ramakrishnarao is Upa-sarpanch of Ananthagiri. He received information about the incident through P.W. 5, S. Kondappa and he accordingly filed Ex. P. 1, report before the concerned Police Station. P.W. 2, B. Kamala is the widow and sole eye-witness to the incident. P.W. 3, B. Mutta is the wife of the appellant and she narrated that the appellant himself confessed that he committed the murder of his brother. P.W. 4, Chinnayya is one of the brothers and he narrated about the dispute regarding jack fruit orchard and tamarind garden and that the appellant did not listen to the advice of elders at the panchayat. P.W. 5, S. Kondappa is a member of Gram Panchayat and he was told by Naidu, caste elder of the parties, about the incident and thereupon, he verified the facts by visiting the scene of occurrence and then informed P.W. 1. P.W. 6, P. Venkatakrishnarao has been working as a Typist in the office of the Mandal Revenue Officer, Ananthagiri and he acted as one of the panchayatdars for the observation of scene of offence, seizure of various material objects, inquest and also for the seizure of M.O. 1, ''Surakathi'' at the instance of the appellant. P.W. 7, Dr. V. Bhagavanulu is the autopsy Surgeon, P.W. 8, Dr. K. Rajyalakshmi examined the appellant and found one minor injury on his person. P.W. 9, K. V. V. N. Murty is the concerned Head Constable who registered the case and P.W. 10, M. Nookaraju, Circle Inspector of Police is the Investigating Officer.
The prosecution has relied upon Ex. P. 1 to P. 9 besides the oral testimony of P.W. 1 to P.W. 10. Ex. P. 1 is the report filed by P.W. 1, Ex. P. 2 is the observation report at the scene of occurrence, Ex. P. 3 is the Inquest report, Ex. P. 4 is the mediators report for the seizure of blood stained earth, control earth and blood stained clothes of the deceased, Ex. P. 5 is the post-mortem report, Ex. P. 6 is the F.I.R. issued by the first Investigating Officer viz., P.W. 9. Ex. P. 7 is the rough sketch of the scene of occurrence. Ex. P. 8 is the letter of advice to the Forensic Science Laboratory and Ex. P. 9 is the report of the Forensic expert.
The appellant has been examined u/s 313 of the Criminal Procedure Code after the prosecution closed its evidence and all the incriminating pieces of evidence have been confronted to him and the appellant denied the same. As regards the injury that was said to have been found on his person, he stated that he had no injury except a minor scratch and he received the same on being pushed by the police. He has been given an opportunity to adduce evidence in his defence but he did not choose to examine any witness. Among M.O.S. 1 to 5, which are marked for the prosecution, M.O. 1 is the blood stained knife which was used in the commission of the offence.
The learned Sessions Judge considered the evidence on record, both oral and documentary, and came to the conclusion that the prosecution is able to establish the guilt of the appellant u/s 302 of the Indian Penal Code beyond reasonable doubt. Accordingly, he convicted the appellant for an offence u/s 302, I.P.C. and sentenced him to undergo rigorous imprisonment for life. Aggrieved by the above conviction and sentence, the present appeal is preferred through jail. Thereafter, the appellant is said to have engaged Sri P. Raghava Reddy, Advocate, who has argued in this appeal on behalf of the appellant. Smt. Susheela Devi, learned Public Prosecutor supported the judgment under appeal and contended that the conviction and sentence passed by the learned Sessions Judge are sustainable.
The point for determination is whether the conviction and sentence passed by the learned Sessions Judge is sustainable ?
Point :- Sri Raghava Reddy, learned counsel for the appellant has firstly contended that there is delay in issuing F.I.R. and the same casts a doubt upon the veracity of the prosecution version; secondly that the sole eye-witness is none other than the wife of the deceased and hence, the case squarely falls within the ambit of Exception 4 to Section 300 I.P.C. and hence, the offence at best amounts to one u/s 304, Part I of the Indian Penal Code. On the other hand, the learned Public Prosecutor has strenuously contended that the delay in lodging complaint in this case was on account of the illiteracy and ignorance of the parties, who are tribals and that the same is not fatal to the prosecution case and it does not affect the prosecution version in any manner. It is also contended that the evidence of the sole eye-witness P.W. 2 is fully corroborated by the extra-judicial confession and also medical evidence and hence, it is sufficient to sustain the conviction. It is lastly contended that Exception 4 to Section 300 I.P.C. is not attracted in the instant case for the reason that the appellant had acted in a cruel and unusual manner in inflicting several blows to his own brother even through the intestines had come out.
We have carefully considered the contentions of both sides. The case falls within a narrow compass. We have carefully perused the evidence of P.Ws. 1 to 10 on one hand and Ex. P. 1 to P. 9. As regards the background of the case, there is evidence of P.Ws. 1 to 5 which goes to show that there have been disputes between the deceased and the appellant in respect of jack fruit orchard and tamarind garden which is said to have been usurped by the appellant unjustly, and the genesis of the dispute appears to be on account of the same. It is on record that a panchayat was also held that connection and the appellant was not willing to abide by the verdict of the elders. In this background, the appellant is said to have committed this murder.
It is on record that the houses of the deceased and the appellant are at one place and they are a little away from the main village. This fact is evident from the sketch map filed by the prosecution and marked as Ex. P. 7. As P.W. 2, Kamala is the sole eye-witness to the incident, it is to be seen whether her presence is probable or not. The time of occurrence being the evening of the fateful day is not in dispute, and the place of occurrence being near the houses of the deceased and appellant is also not in dispute. It is, therefore, understandable that P.W. 2, Kamala was present at the time of incident and she appears to have seen the incident. We have carefully perused the evidence of P.W. 2 and we find that the same does not suffer from any infirmities whatsoever. She has been examined earlier u/s 161 of the Criminal Procedure Code and also at the time of inquest and it is noteworthy that the defence could not point out any improvements or embellishments in her deposition and there were also no contradictions marked in her previous statements. Having tested her testimony from the angle, we are satisfied that she has given a truthful account of the incident. Her narration of the incident is that there used to be frequent quarrels among brothers on the question of partition of jack fruit orchard and tamarind garden and that the appellant did not heed to the advice of the elders and on the date of incident which is a Wednesday, at the time of return of the cattle to the village (meaning evening time), the deceased and appellant had arguments and exchanged words over partition of garden land and the appellant stabbed the deceased with ''Surakathi'' M.O. 1 several times in his stomach (abdomen). She added that the internal parts of the stomach had protruded and the deceased fell down at a short distance from her house and died.
It is a well-established principle that conviction can be sustained on the solitary testimony of a single witness as provided for u/s 134 of the Indian Evidence Act. Be it noted that since P.W. 2 is none other than the widow of the deceased, it is advisable to see whether there is any material to corroborate her testimony or not. First and foremost the piece of evidence for corroboration is regarding the disputes that were going on between the parties and there is acceptable evidence in that connection as already pointed out above. It is next seen that the evidence of P.W. 7, Autopsy Surgeon fully corroborates the testimony of P.W. 2, in as much as, he found six stab injuries and he has deposed that they could have been caused by a weapon like M.O. 1, which is also identified by P.W. 2 as the weapon of offence. It may be added that M.O. 1 has been found in the house of appellant and it has been produced by himself during the interrogation by the Investigating Officer as deposed to by P.W. 6 as well as P.W. 10. Above all, there is unchallenged testimony of P.W. 3, who is the wife of the appellant and who could not have stated that appellant had confessed to her that he killed his brother out of anger and he was holding blood stained ''Surakathi'' M.O. 1 at that time, unless it was a fact. Having regard to the above corroborating pieces of evidence, we have no hesitation to accept the testimony of P.W. 2 although she is the sole eye-witness in this case. In our view, the learned Sessions Judge as rightly accepted the testimony of P.W. 2 and came to the conclusion that the prosecution is able to establish the guilt of the appellant beyond reasonable doubt.
We shall now advert to the contentions raised by Sri Raghava Reddy, learned counsel for the appellant. It is no doubt true that there is some delay in issuing F.I.R. The parties are tribals and their village Regam is said to be at some distance from Ananthagiri where Police Station is located. The distance is not brought on record in terms of miles or Kilometres but it is stated that it is at a distance of about 2 Hours walk. The houses of the deceased and the appellant are also at some distance from the main village Regam. In any case, P.W. 2 had reported the matter to the caste elder by name Naidu and he in turn went and saw the deadbody and then sent for P.W. 5 Kondappa and asked him to inform Upasarpanch P.W. 1 who is the resident of Ananthagiri. Since the incidence took place some time in the evening, they could not have gone to Ananthagiri during the night. P.W. 5 appears to have gone to Ananthagiri on the following day and informed P.W. 1 who thought it fit to visit the scene of occurrence and only after verifying the facts, he prepared Ex. P. 1 after returning to Ananthagiri and lodged the same in Police Station. Thus, the F.I.R. came to be issued at 10.30 a.m. of the following day. Having regard to the above circumstances, which are brought on record through P.Ws. 1, 2 and 5, we find merit in the contention of the learned Public Prosecutor that the so-called delay in this case has occurred only on account of the ignorance of the parties and on account of the distance involved between the place of occurrence and the Police Station. It does not, therefore, have any adverse effect upon the prosecution case. We shall now deal with the last and main contention of Sri Raghava Reddy, learned counsel for the appellant. Taking clue from the evidence of P.Ws. 2 and 3 that there was argument and exchange of words over partition of garden land before the actual incident, it is contended that the case falls within the ambit of Exception 4 to Section 300, I.P.C.
It is necessary to extract Exception 4 to Section 300, I.P.C. for proper understanding of the above contentions :-
"Exception 4 :- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender''s having taken undue advantage or acted in a cruel or unusual manner."
A bare reading of the above provision shows that it is attracted in a case of an act committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. We once again read the evidence of P.W. 2 to see whether all the above elements are present but or our dismay, there is no cross-examination on these aspects and nothing is elicited from her as to how the so-called arguments started and what were the words uttered by each of them and whether it could be called a sudden fight or sudden quarrel. Moreover, it is also postulated in the above Exception that the offender should not have take undue advantage or acted in cruel or unusual manner. A bare reading of the testimony of P.W. 7, Autopsy Surgeon would go to show that as many as six stab injuries were inflicted upon the deceased which resulted in the intestines coming out. In our considered view, the appellant can be said to have acted in a cruel and unusual manner for the reason that he was assaulting his own younger brother who was unarmed. We are, therefore, unable to be pursuaded by the argument of Sri Raghava Reddy that Exception 4 to Section 300 is applicable to this case.
He relied on the decision in Amrithalinga Nadar Vs. State of Tamil Nadu, in support of his contentions. In that case, there were blows given to the deceased, one of which alone is fatal. Whereas, in the case on hand, several blows were given according to the eye-witness and as many as six stab injuries were found by the Autopsy Surgeon. For this reason, we are unable to accept the above contention of learned counsel for the appellant.
We, therefore, do not find any merit in any of the contentions raised by the learned counsel for the appellant and hence, the appeal fails. The point is answered accordingly.
In the result, the appeal is dismissed and the conviction and sentence ordered by the learned Sessions Judge are confirmed.
Appeal dismissed.