ORDER
Ramesh Madhav Bapat, J.
1. Accused Nos. 1 and 2 in SCNo.17/95 which
was pending on the file of IV Addl. Sessions Judge, Guntur are appellants in this appeal. Originally the appellants and four more accused were tried for two charges. The first charge against the accused was under Section 148 IPC. A11 the accused were acquitted of the said charge. The second charge against all the accused was under Section 302 IPC read with Section 149 IPC. The learned trial Judge acquitted the Accused Nos.3 to 6, but he convicted A1 and A2 of the offences punishable under Section 302 IPC and sentenced to each of them to suffer imprisonment for life and to pay fine of Rs.3,000/- and in default to suffer RI for 3 years. Thus, A1 and A2 are appellants in this appeal.
2. The prosecution story can be briefly narrated as follows:
That the deceased Challa Anjibabu was a rowdy-sheeter. In the month of October, 1990, he stabbed A2 and a case in Cr.No.139 of 1990 was registered against him under Section 307 IPC read with Section 34 IPC along with other accused. A1 and A2 are brothers and therefore they bore grudge against the deceased.
3. It is further case of the prosecution that PW1 was sister of the deceased. PW1 was given in marriage to one Mr. Venkateswarlu. The marriage was celebrated on 16-8-1991 and since then she has been residing with her husband at Anakammanagar, Guntur. It is further stated by the prosecution that four days prior to the incident, PW1 went to her parents house as she was suffering ill-health. On 16-3-1994, at about 7.45 a.m. she accompanied her brother (deceased) in order to purchase vegetables from the shop which is situated near the house of A2. When the deceased and PW1 went to vegetable shop, A1 called the deceased and stabbed him on his stomach with a knife – M.O.No.1 due to which the intestines of the deceased came out. A2 was also alleged to have hacked the
deceased with an axe on the right side of the ear due to which the ear was chopped off. A4 was alleged to have stabbed the deceased on the left side of the stomach. Later, the other assailants attacked the deceased. PW1 could not identify them. On hearing the cries of PW1, the inmates of the nearby houses carne out. The deceased was shifted to Government General Hospital, Guntur in a rickshaw. PW1 had accompanied the deceased to the hospital. The deceased was examined by the Doctor and he was declared dead.
4. It is further case of the prosecution that on 16-3-1994, at about 8.30 a.m., PW15, S.I. of Police Nagarampalem Law and Order Police Station received a phone call from the out-post Police Station, Guntur General Hospital. PW15 rushed and reached there by about 8.45 a.m. He secured the presence of PW1 and recorded her statement. Ex.P1 is her statement. He returned to the Police Station and on the strength of Ex.P1 he registered a case in Cr.No.20 of 1994 against the accused under Sections 147, 148 and 302 IPC read with Section 149 IPC. He issued the copies of first information to all the concerned, Ex.P13 is a copy of the FIR received by the Court of the Magistrate.
5. It is further case of the prosecution that on 16-3-1994 at about 9.50 a.m., PWI6, Inspector of Police received information from PW15 about the murder of the deceased. He immediately proceeded to the scene of offence and reached there by 10.15 a.m. and took up investigation. He examined the scene of offence in the presence of PW11 and prepared an observation report which appears on record as Ex.P8. He also prepared a rough sketch of scene of offence which is produced as Ex.P14. Thereafter, he proceeded to the hospital and held inquest over the dead body of the deceased in the presence of PW12 and others. He recorded the statement of PWs.1, 2 and 4 at the time of inquest.
6. It is further case of the prosecution that PW16 made arrangements to send the dead body of the deceased to the hospital for autopsy. PWI4, Professor of Forensic Medicine, Guntur Medical College conducted the autopsy over the dead body of the deceased. He noticed as many as 31 external injuries on the person of the deceased. As per the opinion of PW14, the deceased died of shock and haemorrhage due to the injuries. Ex.P12 is the postmortem certificate.
7. It is further stated by the prosecution that PW17, Inspector of Police took the investigation from PW16. He arrested A1 to A4 and AS and collected three knives and one axe from the drain. After completion of investigation PW17 filed the charge-sheet.
8. In support of the case, the prosecution examined PWs.1 to 17 and also produced documents which were marked as Exs.P1 to 14. Out of the witnesses examined by the prosecution, PW3, PW5 to PW9 and PW13 did not support the case of the prosecution and they were declared hostile. PWs.1 and 2 were examined as eye-witnesses.
9. The defence of the accused is of total denial. It is also suggested by the accused that they had been falsely implicated in the case and therefore they claim acquittal.
10. It appears from the judgment ofthe learned Sessions Judge that he disbelieved the evidence of PW2 and also disbelieved the evidence of PW1 so far as the role of A3 to A6 is concerned, but convicted A1 and A2, the appellants on the solitary testimony of PW1 and believing the evidence given by PW1 against A1 and A2.
11. In order to establish that the deceased died homicidal death, the
prosecution examined PW16, Inspector of Police who visited the scene of offence and conducted inquest over the dead body of the deceased in the presence of PWI2 and others. The inquest report is marked as Ex.P10.
12. It is further seen from the record that PW16 made arrangements to send the dead body for post-mortem examination. PW14, Professor of Forensic Medicine, Guntur Medical College conducted the post-mortem examination and noticed the following external injuries on the person of the deceased:
“1. One chop wound is present over the right side of head cutting the ear and the adjoining part of scalp. The chop is made in the right oblique direction 12 x 7 c.ms. x bone deep. The skull bone is found chopped. One skin flap is loosely hanging in the wound area at the lower portion.
2. One chop wound is present over the middle of back of head. The direction of the chop is downwards 10 x 6 c.ms. x brain deep.
3. One chop wound is present over the right side of head, vertical. The lower end is 2 c.ms., above the outer end of right eye-brow. 9 x 3 c.ms. x brain deep.
4. One chop wound is present on the left side of head 7 c.ms. above the left ear. Little right oblique. 6 x 2 c.ms. x bone deep. A cut is present in the skull.
5. One stab wound is present over the front of left side of chest. The entry is present 1 c.m. above the nipple. Horizontal 3×2 c.ms. Downwards, rightwards, frontwards. The wound tappered off at a point 5 c.ms. below and 3 c.ms. to the right of wound of
entry. The exit wound is right oblique 3 x 2 c.ms.
6. One stab wound is present over the front of left side of chet 3 c.ms. to the left of lower end of sternum. The wound of entry little left oblique. 3 x 1 x 4 c.ms. Downwards rightwards, backwards.
7. One stab wound is present over the front of left side of chest over the left costal margin at the level of nipple 3 x 1 x 6 c.ms. Left oblique. Downwards, rightwards, backwards.
8. One stab wound is present 8 cms below the umbilicus. Little right oblique. 6 x 2 c.ms. x cavity deep. Backwards. Loop of intestine is seen protruding through the stab wound. Cuts present in the intestine.
9. One stab wound is present 8 c.ms. to the right of umbilicus. Little left oblique 3 x 1 c.ms. x cavity deep. Backwards, rightwards, downwards cut the large intestine.
10. One stab wound is present 4 c.ms. below injury No.9. Right oblique 3 x 2 c.ms. x cavity deep. Backwards, downwards, leftwards. Cut the large
intestine.
11. One stab wound is present just above the injury No. 10. Right oblique. 3 x 2 c.ms. x cavity deep. Injuries 10 and 11 joined together immediately in the abdominal wall and produced a common entry into the abdominal cavity.
12. One stab wound is present over the upper part of front of left thigh. Right oblique, 5 x 2 x 6 c.ms. backward, upwards, little rightwards.
13. One chop is present over the front of right knee. Little left oblique.
9 x 6 c.ms. The upper end of right tibia is cut.
14. One cut laceration is present over the middle of front of right leg. Left oblique 3 x 1 c.ms. x bone deep. Superficial cut present on tibia.
15. One scratch is present 6 c.ms. below injury No. 14. Left oblique 3 x 0.2 c.m.
16. One scratch is present 4 cms below injury No. 15. Left oblique 3 x 0.5 c.m..
17. Three vertical lineal scratches are present over the outerside of right shoulder. lengths 10 c.ms.; 11 c.ms.; 9 c.ms.
18. One stab wound is present over the upper part of outerside of left arm right oblique 6x4x8 c.ms. Rightwards, backwards, little downwards. Exit 3 x 0.5 c.ms.
19. One stab wound is present 4 c.ms. below the injury No. 18. Left oblique, 4 x 2 x 8 c.ms. Rightwards, backwards and little ownwards. Exit 5 x 3 c.ms.
20. One scratch is present over the upper part of front of left arm 3 x 0.1 c.ms.
21. One cut laceration is present over the upper end of back of left side of chest. Left oblique 9 x 3 x 3 c.ms.
22. One superficial vertical cut is present over the right scapular area 12 x 0.2 c.ms.
23. One superficial left oblique scratch is present over the right scapular area 10 x 0.2 c.ms.
24. One stab wound is present over the right posterior axillary fold. Entrance vertical. 3 x 1 c.ms. x cavity deep. Frontwards, leftwards, little downwards. Passed through the intercostal space, pleura and made a cut on the lung.
25. One stab wound is present over the lower part of back of right side of chest. Left oblique 3 x 1 x 4 c.ms. Frontwards, rightwards, upwards.
26. One stab wound is present over the upper part of back of right side of abdomen horizontal 4 x 1 c.ms. x cavity deep. Frontwards. The right kidney
is cut.
27. One stab wound is present over the outsider of right side of chest horizontal 3 x 1 c.ms. x cavity deep leftwards, frontwards, downwards. The liver is cut.
28. One stab wound is present over the right loin. Horizontal 3 x 1 c.m. x cavity deep cut the intestine.
29. One stab wound is present over the upper part of back of left side of abdomen. Horizontal 5 x 2 c.ms. x cavity deep. Cut the kidney.
30. One stab wound is present 2 c.m. below injury No.29. Little right oblique 3 x 1 c.m. x cavity deep. Cut the kidney.
31. One stab wound is present 2 c.ms. to the right of injury No.30. Vertical 3 x 1 c.ms. x cavity deep. Intestine cut.”
13. As per the opinion of the doctor, the cause of the death was due to shock and haemorrhage due to the injuries noticed by him in Ex.P12 post-mortem report. He further opined that the injuries could be caused by weapons like axes and knives. Considering the evidence led by the prosecution and the evidence of Doctor we hold that the death of the deceased is homicidal.
14. In order to establish that the accused are responsible for causing the death of the deceased, mainly reliance was placed by the prosecution on the version of PW1 and PW2.
PW1 happened to be the sister of the deceased who had come to the house of her brother little prior to the incident as she was not feeling well. On the date of incident at the request of deceased, she accompanied the deceased in order to purchase the vegetables from the shop which is situated near the house of A2. PW1 further states that when she and her brother reached near the house of A2, A1 called her brother (deceased) and stabbed him on the stomach with a knife – M.O.No.l which was identified by PW1. Because of the stabbing, the intestines of the deceased came out. She further deposed that A2 had hacked the deceased with an axe on the right side of the ear due to which the ear of the deceased was totally chopped off, A4, Sreenu was alleged to have stabbed on the left side of the stomach. A3, Saida was alleged to have stabbed the deceased with a knife on the left side of the stomach, and the other assailants were alleged to have attacked the deceased indiscriminately to whom PW1 was not able to identify.
15. While denying the evidence of PW1, the learned Counsel for the appellants Sri Padmanabha Reddy submits that as a matter of fact, PW1 was not able to identify A3 and A4. It is for the first time while giving evidence, she has deposed before the Court that A3 and A4 were also assailants and while giving evidence in Court, PW1 has attributed overt acts to A3 and A4. The presence of A3 and A4 at the scene of offence was not disclosed by PW1 while giving the first information Ex.P1.
16. According to version of PW1, she along with others shifted the deceased to the Government Hospital, Guntur, but he was declared dead before any treatment could be given. She further stated that the Police came to the hospital and recorded her statement which bears her signature.
17. Ex.P1 was the first information given by PW1 by reading the first information, it is evident that she has attributed a role to A1 and A2 whereas she has not attributed any role to A3 and A4 as submitted by the learned Counsel for the appellants. It is true that the role was attributed to A1 and A2 and no role was attributed to A3 and A4 and therefore they are rightly acquitted by the learned trial Judge. The evidence of PW1 who deposed that A1 and A2 had attacked the deceased cannot be disbelieved.
18. The prosecution further relied upon the evidence of PW2 who claims to be an eye witness to the incident. But from the judgment of the learned Sessions Judge it appears that the evidence of PW2 was totally disbelieved mainly on the ground that he is running a tea stall which is at the distance of 300 yards from the scene ofoffence and therefore, the learned Judge held that he was not able to identify the accused and the deceased properly. Thus, we have the evidence of only PW1 who was an eye witness to the incident. As fars PWs.3, 5 to 9 are concerned they did not support the prosecution, though according to the version of the prosecution they were eye-witnesses to the incident. The evidence of PW4 corroborates the evidence of PW1 to some extent who has reached the scene of the offence immediately after the incident on hearing the shouts and commotions and when she reached the house of the accused, she had seen the accused 1 and 2 going away from the scene of offence and on going to the scene of offence she had seen the dead body of the deceased. PW4 happens to be the mother of the deceased. Therefore the evidence of PW4 corroborates only to the extent of the presence of the accused Nos.1 and 2 at the scene of offence.
19. PW10 is a witness with whom the deceased was working as a servant. But
the evidence of PW10 was not held as of having any relevancy to the crime.
20. PW17 was the punchayatdar. He had visited the scene of offence, prepared a rough sketch of the scene of offence and seized the material objects. Panchanama was also attested by him. PW12 is witness for panchanama whose evidence has already been discussed while holding that the prosecution was able to prove that the deceased died homicidal death. The rest of the witnesses are Police witnesses who had conducted panchanama and other type of investigation. PW15 was S.I. of Police who had registered the crime on the strength of Ex.P1 given by PW1.
21. Now, the question arises as to whether the evidence of PW1 can be believed in toto to the extent of involving A1 and A2 in the offence.
22. The learned Counsel for appellants Sri Padmanabha Reddy relies upon a ruling of the Supreme Court in Chinniah Serrai v. State of Madras, wherein it was held by the Apex Court that the oral testimony of the witnesses can be classified into three categories:
(1) Wholly reliable
(2) Wholly unreliable
(3) Neither wholly reliable nor wholly unreliable;
Their Lordships further held in para-12 of the judgment as follows:
“In the first category of proof, the Court should have no difficulty in coming to its conclusion either way – it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subordination. In the second category, the Court has equally no difficulty in coming to its conclusion. It in the third category of cases, that the
Court has to be circumspect and has to look for corroboration of any material particulars by reliable testimony; direct or substantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if Courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subordination of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contained many precedents where the Court had to depend the and act upon the testimony of single witness in support of the prosecution. There are exceptions to this rule, for example, in case of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participatory in crime. But where there are no such exceptional reasons operating, it becomes the duty of the Court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution.”
23. Applying the above decision to the present set of facts, we are of the considered view that the evidence of the eye-witness that is PW1 is neither wholly reliable nor wholly unreliable because of the fact that while giving Ex.P1, the first information, PW1 has got attributed any overt acts to A3 and A4 whereas while deposing in Court she attributed overt acts to them.
24. The evidence of PW14, Professor of Forensic Medicine, Guntur Medical College, shows that the deceased had wound over the right side of head cutting the ear and the adjoining part of scalp. This act was attributed by PW1 to A2 and she specifically stated that A1 had stabbed the deceased with a knife in the abdomen and the intestines came out of the wound. The said wound is described by the doctor in post-mortem examination at Sl.No.8 of the report. Therefore, we are of the considered view that through the evidence of PW1, it is evident which is corroborated by the medical evidence that A1 had stabbed the deceased in the abdomen and A2 had chopped off the right ear of the deceased. We are sorry to put on record that the Public Prosecutor who conducted the prosecution has conducted it totally in a negligent manner. He did not put a single question to the Doctor which injury was fatal. We arc aware that injury No.1 and injury No.2 independently are fatal in nature but our personal knowledge cannot be imported in evidence as there is no evidence on record through the mouth of the Medical Officer and therefore we cannot hold that A1 and A2 individually or collectively were responsible for causing death of the deceased. We have to hold that both the accused are guilty to the extent of the individual act. As stated earlier Injury No.1 was attributed to A2. Injury No.1 is grievous in nature which is punishable under Section 326 IPC and Injury No.8 which is alleged to have been caused by A1 is also grievous injury by which the stomach of the deceased was cut and intestines came out. Therefore such an injury is grievous and punishable under Section 326 IPC. Therefore, we hold both A1 and A2 are guilty of offence punishable under Section 326 IPC.
25. As far as contradictions put by defence is concerned, we would like to say that the defence Counsel did not put the contradictions in the manner in which is
ought to have been put. By putting suggestions to the witness and the witness denying the same will not amount putting contradiction to the witness. The contradiction has to be put to the witness as contemplated under Section 145 of the Evidence Act. If a contradiction is put to the witness and it is denied by him, then his attention has to be drawn to the statement made by such witness before the Police or any other previous statement and he must be given a reasonable opportunity to explain as to why such contradiction appears and he may give any answer if the statement made by him is shown to him and if he confronted with such a statement and thereafter the said contradiction must be proved through the Investigation Officer. Then only it amounts to putting the contradiction to the witness and getting it proved through the Investigation Officer.
26. As we have held above, the accused-appellants are guilty of offences punishable under Section 326 IPC and both A1 and A2 are convicted and sentenced for their individual act and they are sentenced to suffer R.I. for 7(seven) years by setting aside the conviction given by the Trial Court under Section 302. Thus, the appeal has been partly allowed.