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Kuruva Muliniti Lakshmana, Kurnool DT. v/s State of AP., Rep. PP. Hyd.


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    Criminal Appeal No. 1054 of 2014

    Decided On, 14 September 2020

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE U. DURGA PRASAD RAO & THE HONOURABLE MR. JUSTICE NINALA JAYASURYA

    For the Petitioner: ------ For the Respondent: --------



Judgment Text

U. Durga Prasad Rao, J.1. This appeal is filed by the accused aggrieved by the judgment dated 09.10.2014 in S.C.No.111 of 2014 passed by the learned II Additional Sessions Judge, Kurnool convicting him for the offence punishable under Section 302 IPC and sentencing to undergo imprisonment for life and to pay fine of Rs.1,000/-.2. The prosecution case is thus:a) The deceased Kuruva Moolinti Suri and the accused are cousin brothers and their houses are adjacent to each other in Marella Village, Tuggali Mandal, Kurnool District. PW.1-Lakshmana and LW.2- Seshamma are the parents of the deceased. PW.2-Lingamma is his wife. There were ill feelings and property disputes between the family of PW.1 and accused. While so, on 27.10.2013 the accused quarrelled with his parents and beat his father Beerappa. Seeing it, the deceased intervened and chastised the accused. The accused grew wild and retorted that it was none of his business and threatened him with dire consequences.b) The further case of the prosecution is that PW.4-K. Moolinti Kistappa is the cousin brother of the deceased as his father Ranganna is the brother of PW.1. On 28.10.2013, in the afternoon the deceased returned from agriculture work and slept in the verendah of the house of Kistappa which is opposite to his house. His parents and wife were sitting inside the house of Kistappa and talking with him and his wife Jayamma. At that time the accused loitered in front of the house of PW.4 two or three times. At about 3.00 P.M. they suddenly heard cries of the deceased and on coming out of the house, they found the accused was hacking with an axe on the left side ear region of deceased. By the time they came out, he already inflicted a blow on the head of the deceased. On seeing them, the accused skulked away with the axe. The deceased died spontaneously. PW.1 rushed to the Tuggali Police Station and gave Ex.P1-report at about 5.30 P.M. against the accused which was registered as case in Cr.No.81/2013 by the S.H.O for the offence punishable under Section 302 IPC. Later PW.6, who is the Inspector of Police, Pattikonda circle conducted investigation. He conducted inquest over the dead body and sent it for Post Mortem and later arrested the accused in the presence of mediators and on his statement, recovered MO.8-weapon and produced the accused before the concerned Magistrate for remand and on receiving the FSL report laid charge sheet against the accused for the offence under Section 302 IPC.c) The trial Court, on appearance of the accused, framed charge under Section 302 IPC which he denied and claimed to be tried. During the course of trial, PWs 1 to 6 were examined and exhibits P1 to P12 were marked and MOs 1 to 8 were exhibited.d) Before trial Court, the plea of accused is one of total denial of the offence. One of the defence suggestions is that the deceased being a drunkard might fell on a sharp object and sustained injuries and died for which accused was not responsible. The second defence is that he faintly pleaded that he was suffering with epilepsy and therefore, he did not know the consequence of his act. Both the above defence pleas were rejected by the trial Court holding that the evidence of eye witnesses- PWs 1 to 4 amply established the crime committed by the accused. He was accordingly convicted and sentenced as stated supra.Hence, the appeal.3. The parties in this appeal are referred as they stood before the trial Court.4. Heard arguments of Sri Raja Gopallavan Tayi, learned counsel for the appellant, and learned Public Prosecutor for the State (Andhra Pradesh).5. While severely fulminating the conviction of the trial Court as devoid of reliable and independent evidence and non-consideration of the defence contentions, learned counsel for the appellant argued firstly, the accused was falsely implicated by PW1 in view of the long drawn property disputes between the two families. He would argue that though allegedly the incident took place in verendah of the house of PW.4, to the public gaze, curiously the prosecution has not cited a single eye witness except the family members of the deceased who are interested and highly inimical towards the accused. Therefore, the evidence of PWs.1 & 2 who are the father and wife of the deceased respectively, ought to have been disbelieved and discarded by the trial Court. PW.4 is concerned, he would argue, he is also the cousin brother of the accused and admittedly there are disputes between both the families and PW.4 had no talking terms with the accused since five years from the date of his evidence. As such, his evidence is liable to be discarded as he is also an antagonist of accused. Learned counsel would thus argue that since the evidence of all the three eye witnesses is not free from bias and no independent witnesses were examined by the prosecution, the guilt of the accused cannot be said to be established beyond reasonable doubt.Secondly, he argued that the deceased was a drunkard and therefore, the injuries which he sustained might occurred while he fell on a sharp object in a drunken state. Referring to the evidence of PW.3, he argued that the Post Mortem Doctor has admitted that the injuries were possible if the deceased fell on a sharp edged stone. Learned counsel vehemently argued that the prosecution therefore, cannot claim that the injuries were caused only by hacking with MO.8-axe. On that count also the accused deserves acquittal, he argued.Nextly learned counsel advanced an alternative argument to the effect that even assuming that the accused inflicted the blows on the deceased, it was unintentional for the reason that he was suffering with epilepsy at the time of offence and not knowing the consequences of his acts. Therefore, he deserves acquittal since his acts squarely fall within the ambit of Section 84 IPC. Finally, learned counsel submitted that the accused has been in jail since last six years and considering points of his argument the appeal may be allowed.6. Per contra, learned Public Prosecutor argued that PWs 1, 2 & 4 are natural witnesses, but not interested witnesses as the offence took place at the house of PW.4 and being the inmates of the house, they have witnessed the ghastly act of the accused. He strenuously argued that there may be property disputes between the families of the accused and deceased, but there is no bitter enmity between them so as to implicate the accused, who is none other than the cousin brother of the deceased. Referring to the incident that occurred on the previous day of the death of the deceased, learned Public Prosecutor submitted that when the accused was altercating with his own parents on some issue and assaulting them, unable to digest it, the deceased intervened and questioned the accused of his highhanded act. He would argue that the said incident would reveal that though property disputes were pending between both the families, the natural love out of blood relationship had not eroded among them and that was the reason why the deceased intervened and questioned the accused as to why he was attacking his own parents and in order to prevent his highhanded acts, even gave a slap to him. In this backdrop, he would argue, it is highly unlikely that the family members of the deceased would ruthlessly implicate the accused instead of prosecuting the real culprit. So far as PW.4 is concerned, he argued that admittedly he had no talking terms with the accused since few years prior to the incident. However, both accused and deceased are his cousin brothers and therefore there is no reason for him to implicate the accused in a false case just because of the property disputes. He thus argued that the evidence of PWs 1, 2 & 4 is intrinsic and mutually corroborative regarding the crime perpetrated by accused and therefore the trial Court rightly believed their version.Nextly he argued that the theory of accidental fall proponed by the accused will not stand to legal scrutiny, if the unimpeachable evidence of PWs 1, 2 & 4 is accepted, as, they unequivocally testified that the injuries were inflicted by none other than the accused himself. Even otherwise, PW.3 in the re-examination clarified that only the second injury is possible by falling on the sharp edged stone, but two injuries as mentioned in Ex.P2 were not possible to be caused simultaneously. In that view, the said defence argument is preposterous, he would contend.Nextly, learned Public Prosecutor argued that since the epilepsy plea is one of the general exceptions enunciated in Chapter-IV of IPC, the burden rest on the accused to establish the said plea beyond reasonable doubt. However, except eliciting a stray answer from PW.1 that the accused was an epilepsy patient, no medical record was produced to show that at the actual time of offence he was reeling under epilepsy to such an extent that he was not knowing the consequences of his acts. Therefore, the plea of accused does not merit consideration. He further argued that even though PW.1 admitted that the accused was an epilepsy patient but denied the suggestion that he is a mentally disturbed person. Thereby, he was not admitting that the mental cognitive faculties of the accused were so ruined depriving him of knowing the consequences of his acts and activities. He concluded that it was a pre-meditated and cold blooded murder and prayed to dismiss the appeal.7. The points for consideration are:1) Whether the deceased met with homicidal death and if so, the accused was responsible for his murder?2) If Point No.1 is held affirmatively, whether the accused deserves acquittal on the ground of unsoundness of mind in view of the exception provided in Section 84 IPC?8. Point No.1: While it is the case of the prosecution that the accused brutally hacked the deceased on his head at about 3.00 P.M. on 28.10.2013 when he was sleeping in the verendah of the house of PW.4, conversely, the argument of the accused is that the deceased was a drunkard and in an inebriated condition he might fell on a sharp object and sustained injuries and died and a false case is foisted against him in view of the family feuds relating to properties.a) We gave our anxious consideration to the above respective arguments. The prosecution in order to prove that the death of deceased was a homicide, mainly relied upon the evidence of PWs 1 to 4. While PWs 1, 2 & 4 are the father, wife and cousin brother of the deceased respectively, PW.3 is the doctor who conducted Post Mortem on deceased. Hence, we meticulously scrutinized their evidence.b) As per the prosecution, the death was occurred at about 3.00 P.M. on 28.10.2013. P.W.1 promptly lodged Ex.P1-report at about 5.30 P.M. with the SHO. Tuggali P.S. who registered Ex.P8-FIR and commenced investigation. PW.3, on requisition conducted Post Mortem on the dead body on 29.10.2013 and noted:(i) The lacerated injury on left parietal region measuring about 10 x 4 x 2 C.Ms.(ii) A lacerated injury on left ear measuring about 8 cm x 3 cm defeth.Cause of death to the best of my knowledge is “Hemorrhagic shock” due to fracture of skull bone and due to intra cranial bleeding.c) Accordingly, he issued Ex.P2-P.M. report. During his evidence, he stated that the external injuries could be possible with axe or any other sharp weapon. During the cross examination, he stated that the injuries mentioned in Post Mortem examination are possible even if a person falls on a sharp edged stone. Probably basing on this answer, the defence side argued that the injuries might be caused while the deceased falling on a sharp edged object like stone and hence, his death was more an accident than homicide. We cannot appreciate this argument for, PW.3 in his reexamination categorically stated that even if a person fell on sharp edged stone, only the second injury is possible, but two injuries as mentioned by him in Ex.P2 were not simultaneously possible. This answer clarifies that only one injury i.e., injury No.2 could be possible on an accidental fall on a sharp edged stone. We have no reason to differ with PW.3. Moreover, none of the prosecution witnesses admitted the suggestion that the deceased was a drunkard. Therefore, the theory of accidental fall can be safely omitted.Then a further scrutiny of the evidence of PW.3 and Ex.P2-Post Mortem report would show that the deceased suffered two big lacerated injuries and sustained fracture of skull bone. According to PW.3, the external injuries are possible with an axe or other sharp edged weapon. Omitting the theory of accidental fall, what remains is the infliction of blows with an axe like M.O.8. Then Ex.P3-RFSL report shows that items 1 to 6 and 8 which were referred to the RFSL contained human blood. Items 1 to 4 are the clothes of the deceased, item 5 is his waist thread and item 8 is the blood stained axe. All these items were marked as material objects during the trial. It is to be noted that the I.O. has recovered M.O.8 under the cover of Ex.P7-Panchanama on the revelation of accused in the presence of PW.5-the mediator. Though the accused denied to have revealed about M.O.8, however, Ex.P7 document contains his signature. Thus, a conspectus of the oral and documentary evidence clearly projects that the deceased received blows with MO.8-axe and met with instantaneous death.d) Then we scrutinized the evidence of PWs 1, 2 & 4. It must be said they categorically deposed about the heinous crime committed by the accused. PW.1 is the father of deceased and he deposed that on the date of offence at about 3.00 P.M. when the deceased was sleeping on the verendah of PW.4 and when this witness, his wife and daughter-in-law were sitting inside the house of PW.4, they observed the accused loitered in front of the house of PW.4 for two or three times. Then suddenly they heard the cries of the deceased and when they came out of the house, they saw the accused hacking him with an axe on the left ear. By the time they came out of the house already one blow was inflicted by the accused on the back of his head. His son received profuse bleeding injuries on his head and ear and died instantaneously, whereas the accused fled away from the scene with the axe. According to PW.1, the reason for the attack was that on the previous day when the accused was quarrelling with his parents and assaulting them, the deceased intervened and chastised him. The accused shouted at deceased and warned him not to interfere in his family matters and during that conversation he threatened the deceased to kill. In the cross-examination, he admitted that there were no talking terms between the two families since last four or five years. He denied the suggestion that because the deceased demanded the father of accused to dispose of his share of properties, misunderstandings arose between both the families. He also denied that the deceased was a drunkard. He further denied the suggestion that he did not witness the incident and at that time he was at his fields. He emphatically stated that when he came out of the house, he saw the accused hacking the deceased with an axe and he stated so to the police. Though he admitted that the accused is an epilepsy patient, but denied the suggestion that he was a mentally disturbed person and the villagers called him as ‘Thikkalodu’ (fickle mind). He also denied that the deceased fell on a stone in a drunken condition and sustained head injuries.e) Then PW.2 is the wife of the deceased. She also deposed in similar lines saying that on the date of incident at about 3.00 P.M. while her husband was sleeping in the verendah of the house of PW.4 and when herself, PW.1, her mother-in-law (LW.2), PW.4 and his wife Jayamma (LW.5) were chitchatting in the house of PW.4, they suddenly heard the cries of her husband and immediately they rushed out and saw the accused hacking on the left ear of her husband with an axe and retreating from the scene and her husband died on the spot. She gave the same reason as PW.1 for the attack on her husband. In the cross-examination, she admitted that there were no talking terms between the two families since last three years because of the property disputes. She denied her husband was a drunkard. She denied that she did not witness the incident. She stated that she does not know whether accused was an epilepsy patient, but she denied that he was a mentally disturbed person and villagers call him as ‘Thikkalodu’.f) PW.4 deposed the deceased was his cousin brother being the son of his junior paternal uncle (PW.1). Regarding incident, he testified that on that day the deceased was sleeping in the verendah in front of his house while himself, PW.1, PW.2, Seshamma and Jayamma were chitchatting inside the house. On hearing the huge cry of the deceased, they rushed out and saw the accused hacking the deceased with an axe on his left ear. On seeing them, the accused fled away and the deceased died on the spot. He also deposed about the property disputes between the families of the accused and deceased and about the incident on the previous day. During the cross-examination, he stated that there were no talking terms between him and accused since four or five years because of the property disputes. He denied that the deceased was a drunkard. To a question he stated that they did not try to catch hold the accused as they were attending the injured. He also denied that the deceased fell on a sharp edged stone and died. He denied the accused was an epilepsy patient.g) On close analysis, consistency and mutual corroboration are hallmarks of their evidence. It is true the above witnesses are the close relations of the deceased. However, it must be noted, there is a marked difference between the ‘interested witnesses’ and ‘relation witnesses’. In State of Rajasthan v. Smt. Kalki (AIR 1981 SC 1390) the Apex Court distinguished between ‘interested’ and ‘related’ witnesses as follows:“Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'.”h) It should be noted above observation was made by the Apex Court when the High Court declined to rely on the evidence of PW.1-wife of the deceased on the ground that she was a highly interested witness. The Apex Court considering the facts of the case observed that she was the only person present in the hut with the deceased at the time of occurrence and hence, she was the most natural witness and therefore, she had no interest in protecting the real culprit and falsely implicating the respondents.i) We also deem it apposite to quote another decision of the Apex Court reported in Rana Pratap v. State of Haryana (AIR 1983 SC 680) wherein the distinction between ‘natural witness’ and ‘chance witness’ was delineated as follows:3. xxxx 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.j) In the light of the above jurisprudence, PW.1, 2 & 4 can only be regarded as natural witnesses, but not interested witnesses or chance witnesses since the murder took place at the house of PW.4. The house of PW.4 is opposite to the house of PW.1 and since they are relations, there was every possibility for PW1, his wife and PW.2 to gather in the house of PW.4 at the time of incident. Merely because they are relations of the deceased their evidence cannot be discarded. It is true that there exist property disputes between the two families by dint of which there were no talking terms among them. However, that can not be a reason for them to let the real culprit scot free and implicate the accused if he is innocent. As rightly argued by the learned Public Prosecutor, the natural affection seems to have not eroded between them which is evident from the previous day’s incident. On that day when the accused was quarrelling with his parents and assaulting them, the deceased intervened and chastised him for his highhanded acts. To show such concern for his paternal uncle and aunt, the property disputes did not interdict him. Therefore, the defence plea that a false case was foisted against the accused because of the property disputes and to usurp his properties by sending him to jail does not merit consideration. The further argument that no independent witnesses were examined also has no legs to stand because the accused has not elicited from PWs 1, 2 & 4 about the presence of independent witnesses at the time of incident. Moreover, we don’t think, by implicating the accused, P.Ws.1 & 2 will derive any interest like getting his properties because the accused has his own parents and other family members to take after his properties. The evidence of PWs 1, 2 & 4 is intrinsic, blemishless and mutually corroborative on the material particulars. No material contradictions were brought forth to impeach their credibility. Hence, relying upon their formidable evidence we hold that the accused had committed the murder of the deceased by hacking him with axe and the prosecution has established the guilt of the accused to hilt beyond the pale of doubt.9. Point No.2 : This point is concerned, it is trite law that if any person claims any of the exceptions provided in Chapter IV of IPC under the caption “General Exceptions”, the burden of proving that his case comes within such exceptions rests on him and the Court shall presume the absence of such circumstances as per Section 105 of the Evidence Act. In that view, it is for the accused to establish that his case squarely falls within the ambit of Section 84 IPC. This section reads thus:“84. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”a) Section 84 embodies fundamental maxim of criminal law i.e., actus non reum facit nisi mens sit rea (an act does not constitute guilt unless done with a guilty intention). To constitute the offence, the intent and act must concur. Section 84 lends statutory recognition to the defence of insanity, as developed by the common law of England, in the House of Lords decision, in the case of R. v. Daniel Mc. Naughten (1843 R.R. 59: 8 ER 718 (HL), commonly referred to as the Mc Naughten Rules. It is now well settled that under section 84 IPC, a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing (a) the nature of the act, or (b) that he is doing what is either wrong or contrary to law. The accused is protected not only when, on account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law, although he might know the nature of the act itself. He is, however, not protected if he knew that what he was doing was wrong, even if he did not know that it was contrary to law, and also if he knew that what he was doing was contrary to law even though he did not know that it was wrong.b) In Dahyabhai Chhaganbhai Thakker v. State of Gujarat (MANU/SC/0068/1964), the Apex Court has expounded the doctrine of burden of proof in the context of plea of insanity thus:13. (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial.(2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by s. 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence - oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings.(3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.c) In Bapu v. State of Rajasthan (MANU/SC/7754/2007 = (2

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007) 8 SCC 66) the Apex Court expounded as to when the benefit under Section 84 can be extended.“11. The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place (emphasis applied). In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of: exemption from criminal responsibility.”d) In the light of above jurimetrics, when facts enunciated from evidence are analysed, except extracting a stray admission from PW.1 that the accused was an epilepsy patient, the defence side has not produced any cogent evidence as to the nature of the so called epilepsy and daunting effect on the brain of the accused and more particularly, whether the accused was reeling under the epileptical clout at the actual time of commission of the act so as to bring his case under the above exception. A feeble argument was no doubt advanced that his altercation with his own parents and beating them on the previous day was itself a self explanatory of the fact that his cognitive faculties were defective and he was suffering with epilepsy. This argument is to be noted only to be rejected, for, the previous and subsequent acts of the accused did not manifest any erratic or weird conduct. The record shows when the deceased intervened, he objected for his intervention and threatened him with dire consequences. Further, before incident he moved twice or thrice in front of the house of PW.4 watching the movements of the deceased. He prowled, poached and perpetrated the crime by axing the deceased. Further, immediately after the incident when PW.1 and others rushed there, seeing them, he skulked away with axe. All these acts on his part strongly suggest his mental sanity rather illness. Therefore, we are not prepared to accept the alleged unsoundness of accused as an exception under Section 84 IPC. Accordingly, we find no merits in this appeal.10. In the result, this Criminal Appeal is dismissed by confirming the conviction and sentence passed in S.C.No.111 of 2014, dated 09.10.2014, by the learned II Additional Sessions Judge, Kurnool.As a sequel, interlocutory applications pending, if any, shall stand closed.
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