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IN THE COURT OF THE VIII ADDITIONAL SESSIONS JUDGE
AT MIRYALGUDA
(This the 14th day of June, 2017)
PRESENT: Sri K. Ajita Simha Rao,
VIII Additional Sessions Judge,
Miryalaguda.
SESSIONS CASE No. 500 of 2011
(P.R.C. No.29/2011 on the file of the J.M.F.C. Miryalaguda in Crime No.212/2010 of P.S. Miryalaguda I Town)
COMPLAINANT:The State through Inspector of Police, Miryalaguda. ACCUSED :
Mohammed Khaja Moinuddin S/o Shamshuddin, Age: 36 years, occ:Cable T.V business R/o Pylon colony, Nagarjuna Sagar, Nalgonda District.
Offence Charged :U/Sec. 302 of IPC
Plea of the Accused:Pleaded not guilty. Finding of the Court: Accused is found guilty for the offence under Section 302 of IPC.
SENTENCE OR ORDER:
In the result, the accused is found guilty for the offence under Section 302 of IPC and convicted and sentenced u/Sec.235(2) Cr.P.C for Rigorous life imprisonment and pay a fine of Rs.5,000/-. In default of payment of fine, accused shall undergo simple imprisonment for a period of six months. Mos.1 to 10, Mo.No.12 and Mo.NO.13 shall be destroyed and Mo.No.11 (Motorcycle) shall be confiscated to State, subject to appeal preferred, if any.
Prosecution conducted by:Sri A. Narender Reddy, Addl. P.P. Accused is defended by:Sri A.Muralidhar Rao, Advocate
This case coming before me for final hearing on 15-05-2017 in the presence of Sri A. Narender Reddy, Learned Additional Public Prosecutor and of Sri A.Muralidhar Rao, Advocate, for the accused and having perused the evidence adduced and exhibits marked and other material papers on record having heard both sides and stood over for consideration this Court has delivered the following:
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: J U D G M E N T:
1.The Circle- Inspector of Police, Miryalaguda I Town filed final report against the sole accused for the offence under Section 302 of IPC in
Cr.No.212/2010 dt: 21-09-2010.
2.Precisely, the case unfolded by the prosecution is as under.
a) Smt.Shaik Farhana @ Rajitha (PW1), Md.Khaja Moinuddin (accused) and Kondaiah (hereinafter referred to as “deceased”) are originally residents of Nagarjunasagar. PW1 married one Sk.Jani R/o Zaheerabad town and she blessed with two children. Her husband deserted her over some disputes.
The accused got acquaintance with PW1 and developed intimacy and later married her and thereafter accused forced her to do prostitution. One year prior to the incident, one D.Muthaiah asked PW1 to fulfill lust and insulted her modesty. On coming to know about the same, accused along with his friends B.Kondaiah (deceased) and Moulali (PW2) and one Ramesh attempted to commit murder of said Muthaiah. A case was registered against them in Cr.NO.58/2009 for the offence u/s 307 of I.P.C of Vijayapuri
Town police station and the same was pending trial on the file of Assistant
Sessions Judge, Miryalaguda and all of them were attending the court. After
some time, PW1 developed intimacy with deceased and married him and spent some days at Nizamabad and Hyderabad. Four months back, they came to Haliya town, took a room on rent and residing there.
b)On 21-09-2010, PW1 came along with her husband Kondaiah to attend court since case was posted on the said date on the file of Assistant Sessions
Judge, Miryalaguda. Both of them got down at bus stand, Miryalaguda.
They had breakfast in a hotel near to Bus stand and came to court at about 9.30 A.M. At that time, the accused and Moulali (PW2) came and asked the deceased that he threatened him (accused) to kill him and asked him to do.
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The accused stabbed the deceased with knife on seven or eight times and thereby the deceased breathed last on the pial (by mistake the spelling recorded as “pail” instead of “pial” (Cement Gadde Constructed around the neem tree)) within the premises of the courts buildings Miryalaguda.
c)On receipt of information about the commission of murder, K.Bhaskar,
Sub-Inspector of police, Miryalaguda-I Town, (PW15) rushed to the court premises and found PW1. He recorded the statement of PW1 wherein she narrated all acts of the accused stabbing her husband and also presence of
PW2 and others and requested the police to take necessary action.
d)PW13 recorded statement of PW1 and sent to police station with instructions to issue First Information Report. S.Maraiah, Asst. Sub-
Inspector of police, Miryalaguda (PW13) issued First Information Report (F.I.R) under Ex.P11 and sent case diary file to the scene of offence where
PW13 camped. On receipt of information, T.Anand Reddy, Circle-Inspector of
Police, Miryalaguda, (PW16) came to the scene of offence and took up investigation from PW14.
e)During the course of investigation, PW16 recorded the statements of
Shaik Farhana @ Rajitha (PW1), Shaik Moulali (PW2), P.Janaki Ramulu (PW3), E.Venkateshwarlu (PW4), T.Koteshwar Rao (PW5), P.Venkatesh (PW6), B.Gopal (PW7), A.Saudulu (LW2), Nagaraju (LW5) and B.Laxmi (LW10) who is wife of deceased. He got photographed and video graphed the scene of offence and also statements of the witnesses. He conducted scene of offence panchanama in the presence of U.Mallesham (PW10) and
P.Srinaiah (LW13) under Ex.P7 and inquest under Ex.P8. He sent dead body for the Post Mortem Examination. Dr.Veeranjaneyulu (PW12) conducted autopsy and issued Post Mortem Examination report under Ex.P10. PW16 effected the arrest of accused on 22-09-2010 at 4-00 P.M and secured the
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presence of M.Ram Reddy (PW11) and also Ch.Seetharama Rao (LW16) and recovered knife (Mo.No.1) used in the commission of the offence from accused at Eedulaguda cross road of Miryalaguda town.
f)PW16 made requisition before Judicial Magistrate of First Class,
Devarakonda for conducting Test Identification Parade of the accused through PW2, PW3 and PW8. Sri.J.Sambashiv, Judicial Magistrate of First
Class, Devarakonda (PW14) conducted Test Identification Parade of the accused in the sub-jail premises Miryalaguda on 25-10-2010 under Ex.P12 and Ex.P13. PW16 also sent blood stained clothes to Forensic Science
Laboratory, Hyderabad. After receipt of requisite documents, he filed final report against accused that he committed murder of the deceased with a motive that PW1 developed intimacy with the deceased and married him and residing in Haliya town for the offence punishable u/s 302 of I.P.C in the precincts of court premises.
3.The cognizance was taken for the offence under Section 302 of IPC against the accused and the same was numbered as P.R.C.No.29/2011 on the file of Judicial Magistrate of First Class, Miryalaguda. Copies of documents furnished to the accused.
4.After the appearance of accused and after hearing the parties, case is committed to the Court of Sessions, Nalgonda Division, Nalgonda. The
Hon’ble Prl. District and Sessions Judge, Nalgonda taken cognizance and
numbered as S.C.No.500 of 2011 for the offence under Section 302 of IPC and made over to this court for disposal according to law.
5.After securing the presence of accused and hearing the learned
Additional Public Prosecutor and defence counsel, my predecessor framed the
charge for the offence under section 302 of I.P.C. He read over charge to accused and explained to him. He pleaded not guilty and claimed to be tried.
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6.To prove its case, prosecution examined as many as 16 witnesses out of 21 witnesses cited and marked Exs.P-1 to P15 and Mos.1 to 13. On behalf of the accused Ex.D1 to Ex.D3 marked. Learned Addl.P.P gave up K.Naga
Raju (LW5), B.Laxmi (LW10), P.Sreenaiah (LW13), Ch.Seetharama Rao (LW16). A.Saidulu (LW3) reported died.
7.The status of the witnesses examined is as under;
a) Shaik Farhana @ Rajitha (PW1) is the wife of the deceased. She is an eye witness to the incident. She marked Ex.P1 and Ex.P2. In her cross examination Ex.D1 was marked. She marked Mo.NO.1 to Mo.NO.8.
b) Shaik Moulali (PW2) is an eye witness to the incident. He failed to support the case of prosecution. His statement recorded by police is marked as Ex.P3.
c) P.Janaki Ramulu (PW3), E.Venkateshwarlu (PW4), T.Koteshwar Rao (PW5) and P.Venkatesh (PW6) and D.Govind (PW8) are eye witnesses to offence. PW6 marked Mo.NO.9 and Mo.NO.10.
d) B.Gopal (PW7) is circumstantial witnesses.
e) B.Anil (PW9) is a photographer. He marked Ex.P4 to Ex.P6. He took photographs of scene of offence and also videographed entire proceedings of investigation including recovery of Mo.No.1 from the possession of accused.
f)U.Mallesham (PW10) is the panch for scene of offence and inquest. He marked Ex.P7 and Ex.P8 and Mo.No.11 (motorcycle).
g) M.Ram Reddy (PW11) is the panch for recovery of Mo.NO.1. He marked Ex.P9 and Mo.No.12 and Mo.No.13.
h) Dr.G.Veeranjaneyulu (PW12) is the doctor. He conducted autopsy over the dead body. He marked Ex.P10.
i)S.Maraiah (PW13) is the Asst. Sub-Inspector of police, who issued First Information Report on the statement sent to him by PW15. He marked Ex.P11.
j)J.Sambashiv (PW14) is the Judicial Magistrate of First Class, Devarakonda who conducted Test Identification Parade. He marked Ex.P12 and Ex.P13.
k) K.Bhasker (PW15) Sub-Inspector of police, Miryalaguda-I Town is the first Investigating Officer, who recorded statement of PW1 marked as Ex.P1.
l)T.Anand Reddy (PW16) Circle-Inspector of Police, Miryalaguda, is the final Investigating Officer. He marked Ex.P14 and Ex.P15.
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8.After conclusion of prosecution evidence, accused was examined u/Sec.313 Cr.P.C. for the incriminating evidence appearing against him. His plea is one of a denial. The accused did not choose to examine any defence witnesses.
9.Heard both sides.
10.Learned Addl.P.P would contend that the prosecution could prove that accused committed heinous offence of murder of the deceased in the presence of PW1, who is none other than the wife of the deceased, in the precincts of the court building Miryalaguda at about 9.30 A.M. He would submit that the prosecution could establish the offence against the accused by oral evidence of PW1 to PW6. Their testimonies remained unshaken. He prays to convict the accused for the offence u/s 302 I.P.C.
11.On the other hand, learned counsel for accused would seriously refcited the case of prosecution on several grounds.
a)Prosecution failed to prove motive against accused.
b)First Information Report under Ex.P11 was cooked up one. The prosecution suppressed the very report lodged by PW1 as stated by her in
Ex.D1. He would further contend that after the incident the PW1 was secured by the police and got recorded her statement by suppressing the report given by her and developed the case. Therefore, the very genesis of the case is required to be set at naught. He would further contend that there was no plausible explanation coming from the case of prosecution that PW13 failed to send Ex.P11 to court soon after it issuance and the delay was caused would clinchingly show that the prosecution woven a story against the accused.
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c)The prosecution failed to establish the identity of the accused in clear terms as PW3 and PW6 are constables interested in the result of the case.
He would contend that PW3 failed to support the case of prosecution. PW3,
PW6 and PW8 knew the accused prior to the date of offence and as such identification of the accused before PW14 was a futile exercise. Therefore their statements are unworthy of credit to prove case of prosecution.
d)He would further contend that there are two different versions coming from the testimonies of PW4 and PW5. Their presence at the scene of offence is very much doubtful. Therefore, they are chance witnesses and as such their testimonies cannot be relied upon.
e)PW12 conducted Post Mortem Examination. He stated that some of the injuries might be caused by blunt object and as such the prosecution suppressed the use of blunt object by any other person other than the accused and as such the medical evidence is not at all corroborating with the oral testimonies of the witnesses.
f)He would further contend that the prosecution failed to prove the recoveries of Mo.No.1 and Mo.NO.12 and Mo.No.13 legally. The testimonies of PW11 and Pw16 in respect of recoveries is totally unnatural one and as such the prosecution failed to establish the case against the accused beyond reasonable doubt and prayed to acquit the accused.
12.On the rival contentions made across the bar and the charges framed against the accused, the following point would emerge for consideration.
Whether prosecution could prove that accused committed murder of deceased B.Kondaiah on 21-09-2010 for the offence punishable u/s 302 of I.P.C beyond reasonable doubt ?
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13.Motive:Learned counsel for accused across the bar would seriously contend that the prosecution failed to establish the motive against the accused for killing Kondaiah (deceased). It is well settled legal proposition of law that wherever the direct oral evidence is available, proof of motive pales its significance.
14.In the case on hand, PW1, who is the wife of the deceased, has categorically stated that the accused bore grudge against her husband as he married and living with her. PW1 stated that she got acquaintance with the accused and lived with him for two years at Nagarjunasagar in a rented house and that she involved in the prostitution with the consent of the accused. It is clear from the testimony of PW1 that she was under care and custody of accused for quite some time prior to her marriage or live-in relationship with the deceased. PW1 also stated that she left with the deceased to Hyderabad for livelihood and thereafter they shifted to Haliya for livelihood and residing in a rented house.
15.It is clear for the testimony of PW1 that the accused bore grudge against the deceased for their relationship. The contents of Ex.P1 would also clinchingly reveal that accused bore grudge as she was living with the deceased and accused tried to attempt to kill him two or three times. On plain reading of contents of Ex.P1, and oral testimony of PW1 would clinchingly prove that accused bore grudge to do away the deceased.
Though there is no need for prosecution to prove motive in this case, the prosecution led evidence that there was motive for committing murder by accused. There is unimpeachable oral evidence available on record which would be discussed in the latter part of the judgment to say that prosecution need not required to lead evidence to prove motive. Therefore, contention raised by counsel for accused is negatived.
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First Information Report:Whether it is cooked up one or delay of one hour in sending it to the jurisdictional magistrate would effect the case of prosecution?
16.It is the case of prosecution that on 21-09-2010 at about 9.45 A.M the accused committed murder of Kondaiah within the premises of the court complex Miryalaguda on the pial (cement Gadde constructed around Neem tree in front of Senior Civil Judge's Court, Miryalaguda). The learned counsel
for accused seriously criticized that PW1 moved law into motion by filing
written report before the Inspector of Police as stated by her under Ex.D1
before the magistrate at the time of recording 161 Cr.P.C statement. It is
true PW1 has stated as in Ex.D1 that she lodged written report. However
Ex.D1 is not a serious contradiction to brush aside the First Information
Report under Ex.P11 issued on the basis of statement of recorded under
Ex.P1 by PW15 in the court premises after 10.00 A.M and he sent Ex.P1 to the police station at 10.45 A.m. PW15 stated that he received the First
Information Report under Ex.P11 along with C.D file at about 11.40 A.M. He further stated that PW16 came to court premises and took up investigation.
17.It is the contention of counsel for accused that PW1 was summoned from Haliya to court premises and got recorded her statement to suit the case of prosecution though PW1 lodged report against some unknown persons committed murder. PW1 categorically stated that she came along with the deceased and got down at bus stand at 8.45 A.M and reached court premises at about 9.15 A.M. There is nothing on record to substantiate the fact that after receipt on information of the incident, police gave information to PW1 and secured her presence so as to record her statement treating it as
First Information Report under Ex.P11.
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18.PW16 stated that the distance between Haliya village and Miryalaguda town is about 30 K.M and it would take 45 minutes to reach the court premises in ordinary course. PW15 received information at 10.00 A.M and reached the court premises and found PW1 weeping by the side of dead body of her husband and he recorded her statement under Ex.P1 and sent it for issuance of First Information Report. PW13 received the statement recorded by PW1 and issued First Information Report under Ex.P11 and sent the same along with the same constable to the court premises. If really the contention of the counsel for the accused is true, there was no possibility of securing the presence of PW1 within the period of 45 minutes from Haliya village to
Miryalaguda town so as to obtain the statement under Ex.P1. PW15 was at liberty to register case suomoto as offence was cognizable one. There is no possibility of receipt of information with regard to particulars of PW1 and also her staying at Haliya by PW15 or PW16 to weave a false story against the accused. Unless someone gives information with regard to relationship between PW1 and deceased and her place of staying, there was no possibility for the police to secure her presence from Haliya village as contended by the learned counsel for accused. Furthermore, PW15 reached scene at 10.30
A.M and found PW1 at the scene of offence. Therefore the said contention is no legs to stand before this court. The contradiction under Ex.D1 would not take the root of the case prosecution with regard to issuance of First
Information Report under Ex.P11.
19.Be that as it may, the counsel for the accused seriously criticize that the PW13 issued First Information Report and mentioned in general diary entry as “No.1”. He would contend that PW13 stated it was mistakenly mentioned as “1” instead of “7”. It is his contention that the prosecution cooked up a story as it suppressed the original report given by PW1 and only to cover up the same the G.D entry “1”was mentioned but he stated as No.7
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in his explanation. No doubt the general diary entry number is mentioned as “1” in Ex.P11. Proper explanation was given by PW13 when he was recalled for the purpose of further cross examination. Mere mistake of not mentioning “No.7” in G.D entry would demolish the case of prosecution as it is trivial mistake and same can be ignored. In the case on hand, there is unimpeachable direct evidence available against the accused which totally takes care of the some trivial mistakes or wrongs pointed by the counsel for accused.
20.The serious criticism was made that PW13 issued First Information
Report under Ex.P11 and it was received by jurisdictional magistrate at about 12.40 P.M. He would contend that had Ex.P11 been issued promptly on the basis of statement of PW1 under Ex.P1 and the same constable brought it to the court and nothing prevented the same constable to present the Ex.P11 to the court soon after the handing over C.D file. It is his contention that
Ex.P11 ought to have been sent to court at about 11.45 A.M but the same was submitted to the jurisdictional magistrate at 12.40 P.M. It would create doubt over entire case of prosecution. The defense projected the delay of only one hour in sending the Ex.P11 to court.
21.The Hon’ble Apex Court in YOGESH SINGH VS. MAHABEER SINGH
AND OTHERS 2017 (1) ALT (CRL) 188 (SC) cited by learned Addl.P.P wherein the Hon’ble Apex Court held at para no.40 as under:
“(40) It has been consistently
held by this Court through a catena of
judicial decisions that although in
terms of Section 157 Cr.P.C., the
police officer concerned is required to
forward a copy of the FIR to the
Magistrate empowered to take
cognizance of such offence, promptly
and without undue delay, it cannot be
laid down as a rule of universal
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application that whenever there is
some delay in sending the FIR to the
Magistrate, the prosecution version
becomes unreliable and the trial stands
vitiated. When there is positive
evidence to the fact that the FIR was
recorded without unreasonable delay
and investigation started on the basis
of that FIR and there is no other
infirmity brought to the notice of the
Court, then in the absence of any
prejudice to the accused, it cannot be
concluded that the investigation was
tainted and the prosecution story
rendered unsupportable.”
22.Where there is direct unimpeachable oral evidence on record, the mere sending First Information Report to the jurisdictional magistrate belatedly would not effect the case of prosecution. More particularly, in the case hand, soon after receipt of C.D file by PW16 he recorded the statement of the nine witnesses prior to the inquest report under Ex.P8 would clinchingly show that the investigation was in progress. Therefore, the delay of one hour in sending Ex.P11 to the jurisdictional magistrate is not fatal to the case of prosecution.
COMMISSION OF OFFENCE AND IDENTITY OF THE ACCUSED:
23.As can be seen from evidence on record, it is the case of prosecution that accused along with PW2 came to court premises to attend in a criminal case against them including the deceased. PW2 stated that he came to attend court at 10-.15 A.M and that he did not witness the incident. The testimony of PW2 is only helpful to the case of prosecution to prove that there was a posting of case against deceased, accused, Ramesh and against him and on report lodged against them by one Muthaiah. Therefore, it is
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clear that the deceased came to Miryalaguda town from Haliya to attend the proceedings before the court.
24.PW1 is the wife of the deceased. It is disputed that PW1 is not wife of deceased and their marriage was not performed. Mere living relationship would not disentitle to PW1 to claim status of wife. It is not for this court to decide marital status of PW1 with deceased. PW1 is prime witness in this case along with some of other eye witnesses said to have witnessed the incident as projected by the prosecution. PW1 categorically stated that she married one Jani and out of her wedlock two female children were born and she gave divorce. PW2 further stated she got acquaintance with the accused and lived with him for two years in Nagarjunasagar in a rented house and with the consent of the accused she involved in prostitution. PW1 stated that the deceased was auto driver and she got acquaintance with him and they married at Tirupathi shifted to Hyderabad for livelihood and thereafter they shifted to Haliya and residing in rented house. PW1 further stated that one
Muthaiah sent messages to her cell phone and she informed the same to
Kondaiah, accused and Ramesh and all of them beat him and a criminal case was filed against all of them.
25.PW1 stated that on the date of incident herself and Kondaiah (deceased) came to court on bus. PW1 stated that herself and Kondaiah sat on cement pial around the tree in the court premises at about 9-00 or 9-30
A.M. PW1 stated that the accused and Moulali (PW2) came on motorcycle to attend the case and several persons were also present. She further stated that Moulali and accused came on motorcycle and PW2 stopped at a distance from them and accused came in front of them and challenged Kondaiah to see his end at Nagarjunasagar and that before deceased giving reply the accused stabbed with knife on throat, stomach and chest of Kondaiah about 7 or 8 times in her presence and escaped and two constables chased. PW1
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further stated that she raised hue and cries and the head of Kondaiah was kept on her lap and mean time 108 ambulance came and they examined
Kondaiah declared him dead. PW1 stated her statement was recorded by police.
26.It is clear from the testimony of PW1 that she came along with her husband Kondaiah to attend court proceedings as the case was posted on that date. PW1 got acquaintance with the accused as she was under care and custody of him for quite long time. The testimony of PW1 is seriously challenged in the cross examination. There is nothing elicited to support the case of accused demolishing case set up by prosecution.
27.It was tried to elicit from the testimony of PW1 that relatives of wife of
Kondaiah, threatened Kondaiah to leave PW1 and that they bore grudge against him for continuing her relationship. PW1 stated that she was sitting four feet away from the deceased and she stated that PW2 was riding motorcycle and it was stopped at a distance of 10 to 15 feet and the accused came near to the deceased and both of them had altercations and accused took out knife from rear pocket of pant and stabbed Kondaiah on the throat and soon after receipt of injuries Kondaiah fell down on the pial with face upside.
28.Learned counsel for the accused would submit fairly across the bar that the accused was not at all disputing that incident. He was only disputing that he was not the author of the murder of the deceased. PW1 in her evidence very much specific to state the identity of the accused that accused was only person stabbed Kondaiah while both of them were sitting on the pial. PW1 was only at a distance of four to five feet from the place of sitting of the deceased. She was in a position to witness the every minute acts of the accused as she had categorically stated that the accused stabbed seven
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or eight times in her presence and escaped from the scene. PW1 also identified Mo.No.1 as weapon used by accused apart from identifying
Mo.No.2 to Mo.NO.8. The medical evidence would also show that there were more than 11 external injuries which would support the ocular testimony of
PW1.
29.Be that as it may, it is required to be noted here that the offence took place on 21-09-2010. PW1 was firstly examined on 10-02-2015. For want of production of property, marked later by PW1 as Mo.No.1 to 8 from the committal court, my predecessor constrained to defer further chief examination. The matter under went several adjournments. Some time was consumed for non cooperation of the accused as he changed counsel on the date of PW1 entering in witness box for further chief examination. Thereafter he engaged counsel now defending him. Further chief and cross examination was recorded on 7-12-2016. PW1 withstood to the litmus test of cross examination though there was a gap of six years in between the date of offence and date of her examination before the court.
30.The Hon’ble court in Sadu Saran Sing Vs State of U.P (AIR 2016
SC 1160) at para No.21 (1) held as under.
“So, it is clear from the evidence of PW 1 itself that the examination and cross- examination had taken place several times in a piece-meal manner and the Court was forced to conduct the chief- examination repeatedly because of the subsequent surrender of some of the accused persons. While appreciating the evidence of PW1, the Courts must be conscious of the length of time consumed in recording the evidence of the prosecution witness. From a perusal of the evidence of PW1, the High Court was of the opinion that there were discrepancies and deviations in the evidence of PW1. In our considered
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opinion, the evidence of PW 1, who is an eyewitness who lost three sons in the fateful incident was consistent and there are no major deviations or discrepancies and if at all any minor discrepancies that occurred in the evidence of PW1 might have been due to the long gap between the date of incident and the long delay in examination, more so, those discrepancies are not material in bringing home the guilt of the accused, we find no reason whatsoever to disbelieve his evidence. The statements of PW 1 are fairly corroborated by the statements of PW 2. Hence, we are of the considered opinion that the occurrence had taken place in front of Baithaka of PW1 Bhola Singh and he had witnessed the said occurrence along with PW-2 Baijnath and the injured Ganga Singh”
31.It is clear from the plain reading of testimony of PW1, wholly and holistically, it would clinchingly show that her testimony got ring of truth in all respects. If her testimony is read in the light of the observations made in the above judgment would show that she withstood rigor of cross examination. The cross examination is always a dual between the rustic witness and a refined lawyer. The testimony of PW1 passed all the tests of cross examination so also due test of care and caution. The defence colud not elicit that PW1 was speaking falsehood against the accused. Therefore, the sole testimony of PW1 would suffice to say that prosecution could establish that the accused committed murder of the deceased on 21-09- 2010.
32.Be that as it may, the prosecution also examined PW3 to PW6 and
PW8 as eye witnesses to the prosecution to corroborate testimony of PW1.
Though prosecution examined PW2 as eye witness to the offence but he failed to support the case. PW16 also got conducted Test Identification
Parade of the accused on 25-10-2010 under Ex.P13. PW14 conducted Test
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Identification Parade of the accused in the sub-jail premises, Miryalaguda on 25-10-2010. The identification of the accused before the court is a substantive evidence. The Test Identification Parade is a corroborative evidence. During the course of investigation, the prosecution to improve or ascertain their case would get conducted Test Identification Parade for proving the identity of the accused beyond reasonable doubt. PW14 failed to follow the procedure laid down u/s 34 of Criminal Rules of Practice for the purpose of identification of the accused.
33.Before giving finding on the Test Identification Parade under Ex.P13, it is necessary to appreciate the oral evidence of the witnesses participated in the Test Identification Parade proceedings for the identification of the accused. It is well settled proposition of law when any witness knew the accused prior to Test Identification Parade their evidence is not at all useful for the purpose of identification or also before the court. When the witness knows the accused prior to it is for him to state for the first time identity at the time of recording his statement u/s 161 of Cr.P.C. In the absence of revealing the identity of the accused, at earliest point of time, when they knew the identity of the accused, their evidence would be useless at later point of time.
34.PW3 is a constable. He worked in police station Haliya from 26-02- 2010 to 2012 and he was attending court duty. PW3 stated that he came to court to attend duty on 21-09-2010 as usually and parked his bike in the stand in the premises of the court. PW3 stated that he saw one person stabbing another and thereafter he started running towards road in front of court buildings and he tried to catch but he could not. PW3 stated that on enquiry he came to know that deceased name as “Bandaru Kondaiah” and accused name as “Khaja Moinuddin”. PW3 stated that at the time of incident he was parking his vehicle facing towards north. Ex.P7 is the scene of
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offence panchanama. Rough sketch appended to Ex.P7 would show that the parking place was on the north and PW3 was parking vehicle facing towards north and there was no scope for him to witness what was happened on
South where scene of offence is situate. Therefore, it is not possible for PW3 to witness the incident though he might have chased to catch the accused on raising hue and cries by persons present at the scene of offence.
35.The testimony of PW3 is unworthy of credit as he categorically stated that since the date of his joining as a constable in Haliya police station he was doing court duty and saw the accused several times prior to the incident.
PW3 stated he knew the name of accused. Therefore, it is clear from the cross examination of PW3, in para No.6 of his deposition, would clinchingly show that PW3 could identify the accused prior to the date of incident as he saw him in several times in the premises of the court. It is also the case of the prosecution that accused was involved in several cases prior to this incident also. Therefore there was no meaning in putting the PW3 in Test
Identification Parade for the identification of accused as already PW3 knew the accused by name and saw him several times. The testimony of PW3 with regard to the identify of accused and also with regard to his witnessing the incident is unworthy of credit and as such his evidence is not at all helpful to the case of prosecution.
36.PW8 is also another witness to prove the identity of the accused and also the committing of the offence by him. PW8 was working as a Bar-boy in
Bar Association Miryalaguda for the last 10 years. PW8 stated that he heard some hue and cries while he was in the Bar association room and he saw one person stabbing another on the pial nearby Senior Civil Judge's Court. PW8 changed his version and stated that he did not see the person stabbing. He stated that he saw the accused running from the scene and escaping from the main gate. PW8 participated in the Test Identification Parade and
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identified the accused. The testimony of PW8 is also unworthy of credit to identify the accused before the court or in the Test Identification Parade proceedings as he categorically stated that accused used to attend courts prior to the incident and he knew him. He stated that accused used to come to Bar association hall to meet his counsel Sri.Arun Kumar Advocate and he knew all his details including his name and he was residing at Sagar. It is clear that PW8 knew the accused much prior to the incident including his details such as name and residence. Therefore, it is crystal clear that that testimony of PW8 is not at all helpful to the case of prosecution to prove the identity of the accused so also committing of offence as he categorically stated that he did not witness the incident.
37.The prosecution also examined PW6 constable worked in Wadapally police station as on the date of incident. PW6 stated he came to attend court duty as usually on 21-09-2010 and reached the court at 9.45 A.M and he found two persons sitting on pial of neem tree in front of Senior Civil Judge's
Court, Miryalaguda and that he was standing in front of main entrance of
Senior Civil Judge's Court, and heard hue and cries. PW6 stated he came out
from the entrance and witnessed the stout black person stabbing person sitting on the pial and he tried to catch him but he fled away from the main gate and PW3 and other persons also tried to catch him but he escaped and injured person died.
38.PW6 was cross examined at length to elicit the fact that he was not at all speaking truth before the court. PW6 participated in the Test
Identification Parade conducted by PW14. PW6 identified the accused in the
Test Identification Parade. It was elicited from the testimony of PW6 that he saw the accused even before the offence in the court premises as he was attending court cases though he did not know his name. As per the contents of Ex.P7, the distance between scene of offence and Senior Civil Judge's
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Court, Miryalaguda is 28 feet. It is the testimony of PW6 that he witnessed the incident standing in front of the Sub Court premises. As per the contents of rough sketch map appended to Ex.P7 it is clear that PW6 was in a position to witness the person stabbing the deceased. Furthermore, it is the case of prosecution that accused stabbed more than seven or eight times. If that is so, at least one minute time would have taken by the accused to stab more than seven or eight times. As such, PW6 was in a position to witness the facial features of the accused. Since PW6 stated that he saw the accused even before the offence, PW6 ought to have stated first in point of time that the accused was the person attending the court in several cases and that he saw his physical features and other identity particulars. The statement of
PW6 that he saw only black stout person stabbing the deceased would clinchingly show that he suppressed the very factum of his knowing the accused by face. On the other hand, it was also elicited from the testimony of PW16 that none of the witnessesm who were put to identification parade, stated about facial features of the assailant. If really PW6 witnessed the incident from a close distance about 28 feet, he would have stated that the person who was regularly appearing in the court, committed the murder.
One need not to know the names of the persons appearing in the court even if there were occasions to see several times. Therefore, his participation in the Test Identification Parade as a witness is not useful for identifying accused.
39.Now coming to other important witnesses examined by prosecution as
PW4 and PW5. PW4 is the resident of Nagarjunasagar and he knew PW1 deceased and accused. PW4 stated that he came to court premises on 21- 09-2010 along with brother T.Koteshwar Rao (examined as PW5) and that he parked vehicle in front of tea stall in premises of the court and himself and his brother ordered tea and that he witnessed the accused stabbing the
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deceased and fleeing away from the scene and two police constables chased and Kondaiah died on the spot. PW4 was cross examined at length and elicited that he was not in a position to observe what was happened on the pial of Neem tree while standing in front of tea stall.
40.It is clear from his testimony that he identified the accused as he was running away. Ex.D2 and Ex.D3 are contradictions elicited in his cross examination. It is contended by the counsel for accused that the testimony of PW4 is not reliable one as he gave two versions. He would contend that
PW4 stated that he witnessed the accused stabbing deceased and fleeing away from the scene and whereas in Ex.D3 he stated that when PW4 came to court premises the accused was escaping after stabbing Kondaiah. There are no two versions coming from the testimony of PW4. The suggestion given to PW4 that he was not in a position to observe what happened on the pial of the Neem tree for the tea stall was categorically denied. He stated that by the time of his watching the accused was running away and two constables chased on foot. It would make abundantly clear that PW4 witnessed at least the accused was running away. His testimony is helpful at least to prove the conduct of the accused and his presence in the court premises at the time of incident. Therefore, it is clear that testimony of PW4 is helpful to the prove case of prosecution with regard to the identity of the accused and that he was running away and two police constables chased him to catch.
41.PW5 also stated that he requested PW4 to engage him as driver on the lorries of owners elsewhere and that PW4 told him that he had to take Kirai letter from Kondaiah on 21-09-2010 and both of them came. PW5 stated that while they intended to take cup of tea in the premises of the court the accused and Moulali (PW2) came on motorcycle and accused stabbed
Kondaiah and fled away and two constables chased him.
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42.It is clear from the testimony of PW5 that he witnessed the incident while standing nearby tea stall in the court premises. PW5 stated that there were 15 to 20 persons present nearby pial and by the side of pial there were 10 to 12 persons were present. A suggestion given to him that he was not in a position to observe what was happened nearby the pial form the tea stall was categorically denied. It is clear that PW5 was in a position to witness the offence. Therefore, his evidence is specific that accused stabbed Kondaiah and fled away and two constables chased him. PW5 might not have given number of stabbings by the accused but by itself his evidence cannot be brushed aside.
43.The learned counsel for accused would seriously contend that prosecution failed to establish by producing the Kirai letter in the custody of the deceased and PW4 and PW5 are chance witnesses and their evidence cannot be believed. It is true that PW16 failed to examine the owner of PW4 to know the truth that whether the deceased was in custody of Kirai letter of the vehicle of his owner and whether his owner asked him to bring such Kirai letter from the deceased. I disagree with the contention that PW4 and PW5 are chance witnesses.
44.In RANA PARTAP V/S STATE OF HARYANA (AIR 1983 SC 680) the Hon’ble Apex Court held at para No.3 with regard to chance witness as under.
“[3] There were three eye-witnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. The learned
Sessions Judge and the learned counsel
described both the independent witnesses as 'chance witnesses' implying thereby that their evidence was
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suspicious and their presence at the scene doubtful. We do not understand the expression 'chance witnesses'. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that that they are mere 'chance witnesses'. The expression chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are 'chance witnesses', even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence.” 45.The contention that PW16 failed to examine the owner of the deceased or PW4 is not tenable under law. The defective investigation by PW16 or non examination of owner of PW4 would not come in the way of case of prosecution. IN C. MUNIAPPAN AND OTHERS VS. STATE OF
TAMIL NADU, (2010) 9 SCC 567, the Hon’ble Apex Court explained the law on this point in the following manner:
“There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the
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investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.”
46.Nothing elicited in the cross examination of PW4 and PW5 about their non-presence in the court premises on 21-09-2010. Their testimonies are very much specific and would amply prove at least that accused was fleeing away from the scene of offence towards main gate of the court and that police constables chased. In the case on hand, the only dispute projected by the accused that he never authored the crime. He was not at all disputing the offence. Therefore, it would clinchingly show that at least the conduct of the accused as he was seen by PW4 and PW5 fleeing away from the court premises soon after the offence.
47.Now coming to the testimony of PW14, it is clear that he failed to follow procedure under rule 34 of Cr.P.C while conducing Test Identification
Parade. On microscopic examination of the contents of Ex.P13, it would clinchingly show that PW14 failed to take requisite steps for conducting Test
Identification Parade. The testimony of PW14 and contents of Ex.P13 are
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required to be read in the light of Rule 34 of Criminal Rules of Practice.
PW14 fixed date 23-10-2010 for conducting Test Identification Parade but it was conducted on 25-10-2010, without noting the service of summons and appearance of PW3, PW6 and PW8 apart from the deceased witness. PW14 stated that none of the witnesses stated before him about the face features of the suspect. He stated that he did not ask the witness how they could identify the suspect. PW14 ought to have followed procedure U/R-34 Cr.P.C scrupulously. Rule 34 (iii) (3) (b) is reproduced for ready reference.
Secton-34 (3) (b):Before a witness is called upon to identify the suspect, he should be asked whether he admits prior acquaintance with any suspect whom he proposes to identify. He shall be also asked to state the marks of identification by which he can identify the suspects.
48.The above rule mandates that PW14 was required to ask the witness whether they admit prior acquaintance of the suspect proposed to be identified and he shall also require to ask that the marks of identification by which they can identify the suspect. PW14 stated before this court as under:
“It is true PW3 did not give physical features of the suspect. None of the witnesses stated before him the face features of suspect. I did not ask the witness the how they can identify the suspect.”
49.The above statement of PW14 would make abundantly clear that he failed to follow the mandatory rule reproduced above. Therefore the very basis for conducting Test Identification Parade under Ex.P13 goes to the root of the case.
50.That apart, there is also another important lacuna found in Ex.P13 and the statement of PW15. The rule 3 (iii) (a) (c) are reproduced hereunder.
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“Section-34-(3)(a)The witnesses who have been summoned for the parade shall be kept out of the view of the parade shall be kept out of the view of the parade and shall be prevented from seeing the prisoner before he is paraded with others.
(c)Each witness shall be fetched by separately. The witness shall be introduced one by one and on leaving shall not be allowed to communicate with witness still waiting see the persons paraded.”
PW14 stated as under:
“I have specifically mentioned as to where witness were asked to sit and did not ask accused whether he wishes to change place every witness identified him. Suspects and non suspect did not wear similar dresses. I did not mention in Ex.P13 that I asked the witnesses to go to a place which was not at all visible for the next witness.”
51.The rule mandates that witness, who have been summoned for the parade, shall be kept out of the parade and also shall be prevented from seeing the prisoner before he is paraded with others. PW14 failed to follow the above rules and he never asked the accused whether he wished to change the place after every witness identified him. PW14 also never asked that any witness to go to a place which was not at all visible to other witnesses. PW14 stated that there was only one door for entrance and exit at the place of conducting of Test Identification Parade. Therefore, the proper precautions were not taken as envisaged under rule 34 of Criminal Rules of
Practice. Therefore, the entire proceedings under Ex.P13 are required to be negatived for the purpose of Test Identification Parade. As already held in the earlier paragraphs of the judgment that PW3, PW6 and PW8 knew the accused prior to the incident and they failed to state same before PW16 and
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also before PW14 and that very conducting of Test Identification Parade was unnecessary in this case and it was a futile exercise.
52.For foregoing discussion, it is crystal clear that the oral testimony of
PW1 is “wholly reliable” and the testimonies of PW4 and PW5 would clinchingly corroborating oral testimony of PW1 with regard to identity of the accused and that he committed murder of the deceased on 21-09-2010 in the court premises.
MEDICIAL EVIDENCE:
53.PW12 the doctor conducted Post Mortem Examination of the deceased
Kondaiah and found the following:
EXTERNAL INJURIES
1.Lacerated wound dorsal of left hand from little finger to dorsal aspect 5 cm x ½ cm.
2. Lacerated wound left buital fossa of left elbow 6 cm x 5 cm
3. Lacerated wound near left nipple 3 cm x 2 cm
4. Lacerated wound epigastrium (centre of the stomach) 3 cm x 1 cm
5. Lacerated wound center of chest 6 cm x 3 cm x 2 cm
6. Lacerated wound left base of neck 3 cm x 3 cm x 8 cm deep
7. Lacerated wound below right eye 3 cm x 2 cm
8. Lacerated wound right nipple 3 cm x 2 cm
9. Lacerated wound right hypochomdrium near oblicus 2 cm 3 cm 2 x 5 cm deep
10.Lacerated wound right wrist 3 cm x 3 cm ventral aspect
11.Lacerated wound dorsum of right wrist 2 cm x 3 cm.
INTERNAL INJURIES.
1. Fracture of 2 cm x 2 cm let ribs and 5 and 6 left ribs
2. Fracture of 1, 2, 3, 4, 5 on right ribs
3. A hole I left lung anteriorly 1 cm x 1 cm
4. A hole in left upper part of heart 1 cm x 1 cm and inferior aspet of heart 1 cm x 1 cm.
5. A hole in the left lobe superior aspect of liver
6. Blood in the pericardial cavity.
54.PW12 opined that all above injuries are ante-mortem in nature, caused by sharp object and the cause of death is due to multiple injuries. He issued
Ex.P10 Post Mortem Examination report.
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55.Learned counsel for accused would seriously contend that PW12 stated that the injuries might have been caused by more than one object and as such thee was no scope for the accused to use two objects at a time and there was another person might have participated. He would contend that the entire case of the prosecution is doubtful one.
56.In the case on hand, there is unimpeachable oral testimony of PW1 with regard to stabbing of the deceased by the accused. PW1 categorically stated that the accused stabbed the deceased seven or eight times. Her oral testimony is totally corroborated with the number of injuries stated by PW12.
Therefore, the injuries stated by PW12 are more than the injuries stated by
PW1 would clinchingly show that the accused with vigor stabbed the deceased with Mo.NO.1.
57.The medical evidence is only a corroborative evidence. The primacy is required to be given to the oral evidence unless the medical evidence entirely rules out the oral evidence.
58.In SOLANKI CHIMANBHAI UKABHAI V/S STATE OF GUJARAT (AIR 1983 SC 484) Hon’ble Apex Court held at para No.12 as under.
“Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries: taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown
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out on the ground of alleged inconsistency between it and the medical evidence.”
59.In the case on hand, there is unimpeachable oral evidence of PW1 and her evidence is corroborated with regard to the identity of the accused by
PW4 and PW5 and the accused stabbed more than seven or eight times the deceased at vital parts like throat and deceased breathed his last on the spot. Therefore, the statement of PW12 that some of the injuries might have been caused by blunt object would not brush aside the case of prosecution.
60.The learned counsel for accused would also contend that it is the testimony of PW1 that herself and the deceased had Tiffin in the bus stand of
Miryalaguda town and they reached about 9.15 A.M. The counsel would contend that as per the testimony of PW2 that he noticed stomach cavity empty and as such the case of prosecution that the offence took place at 9.30 or 9.45 A.M is highly doubtful and the oral testimony of PW1 can be negatived on the said ground. Firstly, the said contention is not tenable under the law as the testimony of PW1 passed the litmus test of cross examination in all respects and she is a truthful witness. Secondly, mere stomach cavity is empty would not displace her evidence.
61.In PRAFUL SUDHAKAR PARAB VS. STATE OF MAHARASHTRA
Hon’ble Apex Court held at para No.20 as under.
“20. The next submission of amicus curiae is that the PW-8 Kalpana Raut has stated in her statement that on 7.12.1996 victim left the house after 9:00 p.m. after taking dinner but no food was found in the stomach and the medical report bellies that case. The High Court has dealt with the above submissions and made following observations at page 33: "Evidence of Kalpana, duly supported by PW-15 Shantaram is strong enough to draw
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conclusion that Kalpana was certainly aware of her husband having departed with nephew of PW-15 Shantaram, irrespective of the fact whether she had seen that nephew or not and also irrespective of the fact, whether the victim departed without dinner.
The portion from post mortem notes, indicating the victim to be empty stomach, therefore, is not weighty enough to demolish Kalpana's deposition, which claims knowledge of departure of victim with the accused. We are, therefore, inclined to hold tht Kalpana's evidence that the deceased had departed with the accused, is acceptable and the prosecution has established this circumstance with reliable evidence.”
62.Apart from the above, the Hon’ble Apex Court in SHIVAJI
SAHEBRAO BOBADE V/S STATE OF MAHARASHTRA (AIR 1973 SC
2622) held at para No.11 as under:
“…. …… Modi's Medical Jurisprudence, extracts from which have been given by both the courts, makes out that a mixed diet of animal and vegetable foods, normally taken by Europeans, takes 4 to 5 hours for complete digestion while a vegetable diet, containing mostly farinaceous food usually consumed by Indian does not leave the stomach completely within 6 to 7 hours after its ingestion. Indeed, the learned author cautiously adds that the stomachic contents cannot determine with precision the time of death "inasmuch as the power of digestibility may remain in abeyance for a long time in states of profound shock and coma". He also states "it must also be remembered that the process of digestion in normal healthy persons may continue for a time after death".
63.A normal healthy person digestion would continue for some time after the death. In the case on hand, the statement of PW12 that stomach cavity
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found empty as there was possibility of digestion of food after death also.
The contentions of counsel for accused have no merits in the eyes of law and rejected.
RECOVERY:
64.As per the case of prosecution case the accused was arrested on 22- 09-2010 at about 4.30 P.M. Ex.P9 is relevant portion of confession of the accused for recovering the MO.No.1. PW11 is the panch for recovery of
Mo.No.1. Ex.P9 was conducted on 22-09-2010 at about 6.30 hours nearby
Eedulaguda by pass road in Miryalaguda town. PW11 stated that as per the oral instructions of Tahasildar he went to Eedulagudem cross road in outskirts of Miryalaguda town and found one person in the custody of police and he asked identity of the accused and he disclosed identity and Inspector seized Mo.No.9 and Mo.NO.10 and also Banian containing blood stains marked as Mo.No.12 and also Karban mobile marked as Mo.No.13. Pw16 effected the arrest of accused and seized Mo.No.1 in the presence of PW11.
Testimonies of PW11 and PW16 with regard to seizure/ recovery are unnatural.
65.It is the case of prosecution that accused committed murder of the deceased on 21-09-2010 at about 9.30 A.M and he was arrested at 4.30 P.m on 22-09-2010. An ordinary prudent man would not expect that accused would wear same clothes containing blood stains for more than 30 hours and that he would carry the weapon used in the offence marked as Mo.NO.1 along with him to near Eedulagudam cross road Miryalaguda town.
Furthermore PW16 failed to seize the cover concealed Mo.No.1. It is also surprising to see that police brought clothes for wearing of accused to seize the Mo.No.9, Mo.NO.10 and Mo.NO.12. It is not expected by police to bring wearing clothes for changing of the dress of the accused unless his physical
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particulars are known to them. Therefore the testimony of PW11 along with the testimony of PW16 would clinchingly show that the entire process of seizure of Mo.NO.1 or recovery is unnatural one. As such, the prosecution failed to establish recovery of Mo.NO.1 lawfully from possession of accused on 22-09-2010.
66.Be that as it may, where there is unimpeachable oral evidence that accused committed murder of deceased, proof of recovery of Mo.NO.1 pales its significance.
67.The Hon’ble Apex court in MANJIT SINGH & ANR; V/S STATE OF
PUNJAB & ANR; reported in 2013(12)SCC 746at para No.31 as under:
“In this context, the authority in State of Rajasthan v. Arjun Singh and others, 2011 9 SCC 115 can profitably be referred to.
In the said decision the Court has opined that absence of evidence regarding recovery of used pellets, bloodstained clothes, etc. cannot be taken or construed as no such occurrence had taken place. It has been further observed that when there is ample unimpeachable ocular evidence and the same has received corroboration from the medical evidence, even the non-recovery of weapon does not affect the prosecution case.”
68.In the case on hand, the prosecution failed to establish the recovery lawfully from possession of accused on 22-09-2010 at 16.30 hours. I hold this point in favour of accused and against the prosecution.
69.To sum up, the prosecution could prove that the accused committed murder of deceased by the oral evidence of PW1, Pw4 and Pw5 and Mo.No.1 by exhibited documents under Ex.P1 to Ex.P15. The prosecution could
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establish that accused committed murder of the deceased for the offence punishable u/s 302 of I.P.C beyond all reasonable doubt.
70.In the result, the accused is found guilty for the offence under Section 302 of IPC and convicted u/Sec.235(2) Cr.P.C.
Dictated to the Personal Assistant, transcribed by him, corrected and
pronounced by me in the open Court, on this the 14th day of June, 2017.
Sd/-
VIII ADDITIONAL SESSIONS JUDGE
MIRYALGUDA
ORDER OF SENTENCE:
71.Accused is questioned on the quantum of sentence to be imposed against him for the offence u/s 302 of I.P.C.
72.Accused stated that he got small child. Nobody is to take care of him.
He requested to impose minimum punishment under the law.
73.Heard both sides.
74.Learned Addl.P.P contend that the accused committed murder of the deceased within the court premises of Miryalaguda town. The acts of the accused would fall under the category of rarest of rare cases. Therefore he requested to impose death penalty. However he fairly submitted that he could not lay hands on any judgment of the Hon’ble Apex Court imposing death penalty for committing murder in the court premises.
75.The learned counsel for accused requested this court to impose minimum sentence prescribed under the law and the case of the accused does not fall under the rarest of rare cases. The principles laid down for awarding capital punishment by the Hon’ble Apex Court in MOHINDER
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SING VS STATE OF PUNJAB (2013(3) SCC) 294 one of guide lines is reproduced hereunder.
“(vii) The “rarest of rare” case comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be in the category of “the rarest of the rare case”. There must be no reason to believe that the accused cannot be reformed or rehabilitated and that the is likely to continue criminal acts of fiolence as would constitute a continuing threat to the society.”
76.In the case on hand, though the accused inflicted eleven stab injuries but it cannot be said that it is a brutal one. There is no evidence on record to show that the accused is threat to harmonious and peaceful coexistence of the society. There is a possibility of his reforming and rehabilitating and there was no scope for his continue of criminal of acts. In the final report,
PW16 gave several number of crimes said to have been committed by the accused. He failed to place any record before this court evidencing that he was the author of the said crimes and the results of the said cases. In the absence of which, the very nature of the committing of the offence by the accused in the court premises would not fall within the ambit of rarest of rare cases.
77.Considering the totality of the circumstances, minimum sentence of
Rigorous life imprisonment is imposed and accused shall pay a fine of
Rs.5,000/-. In default of payment of fine, he shall undergo simple imprisonment for six months.
78. In the result, the accused is found guilty for the offence under Section 302 of IPC and convicted and sentenced u/Sec.235(2) Cr.P.C for Rigorous life imprisonment and pay a fine of Rs.5,000/-. In default of payment of fine,
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accused shall undergo simple imprisonment for a period of six months.
Mos.1 to 10, Mo.No.12 and Mo.NO.13 shall be destroyed and Mo.No.11 (Motorcycle) shall be confiscated to State, subject to appeal preferred, if any.
Dictated to the Personal Assistant, transcribed by him, corrected and
pronounced by me in the open Court, on this the 14th day of June, 2017.
Sd/-
VIII ADDITIONAL SESSIONS JUDGE
MIRYALGUDA
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PROSECUTION:
PW1LW1Shaik Farhana @ Rajitha Complainant, Eye witness and wife of deceased PW2LW2Shaik MoulaliEye witness PW3LW4P.Janaki Ramulu-do- PW4LW6E.Venkateshwarlu-do- PW5LW7T.Koteshwar Rao-do- PW6LW8P.Venkatesh-do- PW7LW9B.GopalCircumstantial witness PW8LW11D.GovinduEye witness PW9LW12B.AnilPhotographed and video graphed proceedings of investigation. PW10LW14U.MalleshamPanch for scene, inquest and seizure deceaee clothes PW11LW15M.Ram ReddyPanch for confession and seizure PW12LW17Dr.G.VeeranjaneyuluConductedPostMortem Examination PW13LW20S.MaraiahIssued First Information Report PW14LW18J.SambasivConductedTIP,recorded statements of Lws 1 to 3, 6, 7, and 11. PW15LW19K.BhaskarInvestigating Officer, recorded statement of LW1 PW16LW21T.Anand ReddyInvestigating Officer filed charge sheet.
FOR DEFENCE : - NIL - : EXHIBITS MARKED : FOR PROSECUTION:
Ex.P-1 21-09-2010Statement of PW1 recorded by police Ex.P-2 05-10-2010164 Cr.P.C statement of PW1 Ex.P-3 21-09-2010161 Cr.P.C statement of PW2 Ex.P-4 21-09-2010Positive photographs of deceased (6)
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Ex.P-5 21-09-2010C.D Ex.P-6 21-09-2010D.V.D Ex.P-7 21-09-2010Scene and seizure panchanama Ex.P-8 21-09-2010Inquest panchanama Ex.P-9 22-09-2010Confession and recovery panchanama Ex.P-10 21-09-2010Post Mortem Examination report Ex.P-11 21-09-2010First Information Report Ex.P-12 24-09-2010Requisitions for TIP and recording 164 statements of witnesses Ex.P-13 25-10-2010Test Identification Parade proceedings Ex.P-14 21-09-2010Seizure panchanama Ex.P-15 03-01-2011Forensic Science Laboratory, report
FOR DEFENCE :
Ex.D-1 05-10-2010Contradiction portion in 164 Cr.P.C statement of PW1 Ex.D-2 05-10-2010Contradiction portion in 164 Cr.P.C statement of PW4 Ex.D-3 05-10-2010Contradiction portion in 164 Cr.P.C statement of PW4
MATERIAL OBJECTS MARKED:
MO.1 Knife MO.2 Watch of deceased MO.3 Cell phone of deceased MO.4 Chappals of deceased MO.5 Clothes of deceased MO.6 Shirt of deceased MO.7 Underwear of deceased MO.8 Banian of deceased MO.9 Wheat colour shirt of accused MO.10 Blue colour pant of accused MO.11 Motorcycle MO.12 Banian of accused MO.13 Karbon mobile of accused
Sd/-
VIII ADDITIONAL SESSIONS JUDGE
MIRYALGUDA
SC.NO.500/2011Dated:14-06-2017Page No.37
IN THE COURT OF THE VIII ADDITIONAL SESSIONS JUDGE AT MIRYALGUDA
CALENDAR AND JUDGMENT
SESSIONS CASE No. 500 of 2011
1Crime Number and Police :212/2010 of P.S. Miryalaguda I Town Station 2Description of the Accused person:
Mohammed Khaja Moinuddin S/o Shamshuddin, Age: 36 years, occ:Cable T.V business R/o Pylon colony, Nagarjuna Sagar, Nalgonda District.
3Date of Offence:21-09-2010 4Date of Report:21-09-2010 5Date of Arrest:22-09-2010 6Date of Release:28-12-2010 7Date of Committal records :24-06-2011 (P.R.C. No.29/2011 on the file of the J.M.F.C. Miryalaguda) 8Date of Commencement of trial:10-02-2015 9Date of closure of trial:17-02-2017 10Date of Judgment:14-06-2017 11
SENTENCE OR ORDER
In the result, the accused is found guilty for the offence under Section 302 of IPC and convicted and sentenced u/Sec.235(2) Cr.P.C for Rigorous life imprisonment and pay a fine of Rs.5,000/-. In default of payment of fine, accused shall undergo simple imprisonment for a period of six months. Mos.1 to 10, Mo.No.12 and Mo.NO.13 shall be destroyed and Mo.No.11 (Motorcycle) shall be confiscated to State, subject to appeal preferred, if any. 12
EXPLANATION FOR DELAY
The records received on 07-09-2011 from the Hon’ble Prl. District and
Sessions Judge, Nalgonda. On 05-11-2013 charge was framed against the
accused. On 19-12-2013, 08-05-2014 06-04-2016, 06-06-2016, 11-07-2016, 29- 08-2016, 14-09-2016, 31-10-2016 and 07-12-2016 trial schedule was issued. On 10-02-2015, 20-01-2017, 03-01-2017, 04-01-2017, 05-01-2017, 17-01-2017, 27- 01-2017, 03-02-2017 and 17-02-2017 PWs 1 to 16 were examined Exs.P1 to P15 and MO.Nos. 1 to 13 and Exs.D1 to D3 were marked. On 17-02-2017 prosecution evidence was closed. On 22-02-2017 accused was u/s 313 Cr.P.C and the plea of the accused is denial and he did not choose to examine any defence witnesses. On 15-05-2017 heard arguments. On 14-06-2017 judgment pronounced.
VIII ADDITIONAL SESSIONS JUDGE
MIRYALGUDA
Dis.No. /2017, dated: - -2017.