JUDGMENT
Syed Shah Mohammed Quadri, J.
1. On 11-7-1988 at about 3-30 P.M., the gravamen of the charge is, the first appellant committed the murder of Makineni Satyanarayana by stabbing him with a knife at the instigation of appellant No. 2 at Chinaravuru Railway Station. The first appellant was tried for the offence punishable under Section 302 I.P.C. and the 2nd appellant was tried for the offence punishable under Section 302 read with Section 341.P.C. in Sessions Case No. 97/89 on the file of the learned 2nd Addl. Sessions Judge, Krishna Division at Vijayawada. The appellants were convicted of the offences with which they were charged and were sentenced to undergo life imprisonment on 22-2-1991. Against their conviction and sentence, the appellants preferred this appeal.
2. The case of the prosecution is that M. Satyanarayana (hereinafter referred to as the ‘deceased’) had seven daughters and the 5th daughter, Kanakadurgamma, was first given in marriage to one Pathuri Venkateswararao of Chinnapalem in Tenali taluk in 1982. That marriage ended in divorce. Subsequently the first appellant who was also a divorcee married the said Kanakadurgamma in 1986. They lived happily for sometime. Thereafter some differences arose between them and an application for dissolution of marriage was pending in the civil court. After sometime of the marriage of Kanakadurgamma with the 1st appellant, he sought financial assistance from the deceased for establishing a printing press of his father, Hanumantharao/fffe 2nd appellant. The deceased did not agree. Kanakadurgamma, P.W. 3 was having an amount of Rs. 30,000/- in the joint account of herself, and her father, the deceased, in the Andhra Bank Amruthaluru. As that fixed deposit was matured, the deceased went to Tenali from his village Nalluru to withdraw the amount on 11-7-88. He was accompanied by his youngest daughter, Krishnaveni. They withdrew the amount and returned to their house. On the same day at about 3 P.M. the deceased informed his daughter, Krishnaveni, that he was going to the house in Nalluru village and would board the train at Chinaravuru Railway Station. Immediately after the deceased left, Krishnaveni recollected that she had to intimate to her sister Kanakadurgamma that their mother was to be operated for cataract on 14-7-88. Then she rushed to the Railway Station to convey to her sister the date of operation of her mother. There, she saw both A-l and A-2 in front of her father who was sitting at the booking office and heard the 2nd appellant instigating the first appellant to kill the deceased and remove the obstruction. Thereafter she also saw the first appellant stabbing the deceased with a knife. She got scared/returned to her house and went to the Railway Station accompanied by her mother in the same rickshaw. She did not find the deceased there. She was informed that the deceased was taken to the hospital at Tenali. Then they reached the hospital. Immediately after the deceased was stabbed, the clerk in-charge of Chinaravuru Railway Station who is known as the Station Master was told by the deceased that the 1st appellant stabbed him at the instigation of the 2nd appellant and he requested him to take him to the hospital. The said Station Master sent the deceased to the Government Hospital at Tenali. There he was examined by the Doctor, P.W. 7, who issued a wound certificate, Ex.P-2. He also sent an intimation to the Magistrate for recording the dying declaration. P.W. 12 recorded the dying declaration of the deceased, Ex.P-9, and P.W. 7 certified that he was conscious and was in a fit condition to give a statement. He was then shifted to the Government Hospital at Guntur. There he died on 12-7-1988 at about 2 A.M. P.W. 13 conducted autopsy on the dead body of the deceased and issued a post-mortem certificate, Ex.P-10. P.W. 14 the Sub-Inspector of Police issued F.I.R, Ex.P-11. The Inspector of Police, P.W. 15, conducted investigation and filed the charge sheet.
3. The plea of the accused was one of denial.
4. To prove its case, the prosecution examined P.Ws. 1 to 15 and marked Exs.P-1 to P-23 and placed M.Os. 1 to 17 before the court.
5. No evidence was let in by the defence.
6. P.Ws. 1 and 2 are the direct witnesses to the occurrence. They saw the 2nd appellant instigating the first appellant, and on that instigation the 1st appellant inflicting stab injuries on the deceased. P.W.I is the youngest daughter of the deceased who accompanied him for withdrawal of the fixed deposit amount from the Bank. She stated that the second marriage of Kanakadurgamma with the first appellant was performed in Vaikunthapuram Venkateswaraswamy temple at Tenali in 1986. The deceased was residing in Nalluru. P.W.I, her mother, and the daughter of her 4th sister were living in Tenali in a rented house. The deceased and the mother of P. W. 1 used to reside at Nalluru and also at Tenali now and then. The 1st appellant and Kanakadurgamma were residing with them in Tenali. She also stated that the relations of the first appellant with Kanakadurgamma were not good. The 1st appellant used to come late in the night, abuse her and beat her. As the parents of P.W.I were afraid of the behaviour of the 1st appellant, they were residing in the village Nalluru. The relations between the 1st appellant and the deceased were not amicable. The 1st appellant demanded the deceased to give Rs. 25,000/- for the development of printing press of the 2nd appellant, but the deceased refused to comply with the same. Thereafter the 1st appellant beat the deceased and threatened him that he would kill the deceased and went away. Thereafter he sent a legal notice to Kanakadurgamma. Then the 1st appellant came to their house at Nalluru and created a galata. On 11-7-88 the deceased asked P.W.I to accompany him to the State Bank of India at Kothapet of Tenali to withdraw the amount of Rs. 30,000/- kept in fixed deposit, as the due date was over. That amount was in the joint names of the deceased and Kanakadurgamma. They returned after handing over the original receipts of F.D.Rs. and then the deceased told her that he would go to Nalluru Railway Station. As she forgot to inform her father that the mother was to be operated for cataract and that this fact was to be intimated to her sister at Nalluru, she followed the deceased to the said Railway Station. There she found the deceased sitting by the side of the booking counter and both the appellants were standing in front of her father. The 2nd appellant was abusing the deceased and said to the 1st appellant “Veedini Champara Addu Tholagipothunthi” (Telugu words). On that the first appellant took out a knife and stabbed the deceased on the eye, stomach and right chest. She got scared and went back to her house to inform the mother and both P.W.I and her mother came to the railway station. They came to know that the deceased was taken to the hospital at Tenali. Then they went to the hospital and found the deceased under treatment.
7. P.W. 2 is a resident of Nalluru village. He is an agriculturist. He states that the 1st appellant is the husband of Kanakadurgamma and the 2nd appellant is the father of the 1st appellant. He states that he went to Chinaravuru railway station in Tenali at about 3 P.M. He purchased the ticket to Repalle to go to his village Nalluru from Tenali and was standing on the platform. He saw the deceased sitting at the booking counter. He noticed the appellants having an altercation with the deceased and heard the 2nd appellant instigating the 1st appellant to stab the deceased. Accordingly the 1st appellant stabbed the deceased with a knife on the eye, chest and leg indiscriminately. Having stabbed, the appellants ran away. He also saw the accused holding a knife. He got afraid and stepped aside on to the platform. He saw the deceased going into the room of the Station Master and asking him to save his life. Some persons have gathered there. He also saw the deceased being carried in a rickshaw. He went to the hospital. There he saw P.W.I and her mother. He witnessed the Sub-Inspector, P.W. 14 coming there. He also saw P.W. 12 coming to the hospital and going into the room where the deceased was undergoing treatment. He was examined by P.W. 14. He says that on the next day he came to know that M. Satyanarayana, the deceased, died in Guntur hospital. Himself and other villagers went to Guntur hospital to see Satyanarayana.
8. P.W. 5 who is a Clerk in charge of Chinaravuru Railway Station, Tenali and was known locally as the Station Master states that his working hours are from 7 A.M. to 7 P.M. He was working in the Railway Department from 1958. He described the topography of the Railway Station. On 11-7-88 he was on duty from 7 A.M. to 7 P.M. He states that passenger No. 410 runs from Guntur to Tenali and from there to Repalle. It came on that day to Chinaravuru at about 3-55 P.M. He started issuing tickets for the said train one hour in advance. There was no rush at the counter. After talking on phone with the south cabin of Tenali about the movement of the train when he came to the counter, he heard some person receiving stab injuries and that he was coming into his office. By the time he turned towards the doorway he found the person coming with bleeding injuries. He sat on a stool which is opposite to his table. The injured person was holding a broken knife (blade of knife) and handle and he placed a fountain pen and his spectacles and a khadder upper cloth on the table. He noticed that the clothes of the injured person were stained with blood. The injured person gave his name as Satyanarayana and said that his son-in-law Sivaramakrisha (the first appellant) stabbed him at the instigation of his father, Hanumantharao (appellant No. 2). The injured person requested P.W. 5 to take him to the Government hospital. Thereafter P.W. 5 rang up to south cabin to send railway police. In the meanwhile the train came and left the railway station. Some rickshaw people and others gathered there. The injured person requested them to take him to the hospital and they took him to the Govt. hospital at Tenali.
9. The evidence of P.Ws. 1 and 2 who are the eye witnesses to the occurrence clearly establishes beyond all reasonable doubt that the 1st appellant indiscriminately stabbed the deceased. The evidence of the Doctor at Tenali P. W. 7 who issued a wound certificate Ex.P-2 corroborates the evidence of P.W.I in regard to the injuries. P.W. 12 the Munsif Magistrate, Pulivendula who received a requisition Ex.P-3 from P.W. 7 reached the Government hospital, Tenali at 5-20 P.M. He recorded the dying declaration of the deceased. He states that the patient was in conscious state and was answering the questions. He also states that P.W. 7 the Doctor was also present along with him. He recorded the statement between 5-30 to 5-40 P.M. He further states that no one except the injured person and the Doctor were there at the time of recording the statement and that he had taken all the precautions at the time of recording the statement. Ex.P-9 is the statement recorded by him and Ex.P-4 is the endorsement of P.W. 7 to the effect that the injured was conscious and was physically and mentally fit to give a statement. In his dying declaration (Ex.P-9) the deceased stated that the 1st appellant stabbed him with a knife indiscriminately at about 3-30 P.M. and that he did so at the instigation of the 2nd appellant. He stated that the 2nd appellant was his Viyyanka. He added that he had no sons and that his daughter P.W.I studied B.Com. and requested to provide protection to her.
10. Thereafter P.W. 14 also recorded a statement of the deceased (injured), Ex.P-11. He gave all the details and said that the 1st appellant stabbed him at the instigation of the 2nd appellant and that he had taken the broken knife and handed it over in the Station Master’s room (P.W. 5’s room) and informed him about the matter and requested him to send him to the Government Hospital. From the statements of P.Ws. 1 and 2 who are the eye witnesses to the occurrence, and the oral dying declaration of the deceased given to P.W. 5, and the dying declaration, Ex.P-9 given to P.W. 12 and the contents of the statement Ex.P-11 recorded by P.W. 14 the Sub-Inspector of Police, it is established beyond all reasonable doubt that the 1st appellant stabbed the deceased indiscriminately at about 3-30 P.M. on 11-7-88 due to which he died on 12-7-1988 at 2-15 A.M. The injuries on the person of the deceased as noted in Ex.P-2 wound certificate which were found by the Doctor, P.W. 7 at Tenali on examination, were also corroborated by the statement of P.W. 13, the Doctor who conducted the autopsy on the dead body of the deceased and Ex.P-10 the post mortem certificate. Thus the conviction of the 1st appellant cannot be said to be illegal or improper. In our view the learned Sessions Judge has rightly convicted and sentenced the 1st appellant for the offence under Section 302 I.P.C.
11. Sri T. Bali Reddy the learned counsel for the appellants however, strenuously argued that the 2nd appellant ought not to have been convicted under Section 302 read with Section 1091.P.C. The presence of P.W.I at the Railway Station, Chinaravuru cannot be accepted; therefore, the evidence of the alleged instigation, submits the learned counsel, is not credit-worthy, as such the conviction and sentence of the 2nd appellant have to be set aside. The learned Public Prosecutor contends that the evidence of P.W.I, P.W. 2, and the oral dying declaration of the deceased given to P.W. 5 and also to P.W. 12, and the statement recorded by P.W. 14 clearly show that the 2nd appellant instigated the 1st appellant to stab the deceased. Therefore, the 2nd appellant was rightly convicted of the said offence.
12. As noted above, P.W.I heard the 2nd appellant saying to the first appellant “Veedini Champara Addu Tholagipothunthi” (Telugu words). The deceased was the Ex-Village Munsif. He was having a house and landed properties and a well known person. Even at the time of the 2nd marriage of the fifth daughter, P.W. 3, with the 1st appellant, he gave a cash of Rs. 15,000/- and deposited a sum of Rs. 50,000/- in the name of P.W. 3. He had deposited an amount of Rs. 30,000/- in the joint names of himself and P.W. 3 in the Fixed Deposit. Therefore, we are inclined to accept the testimony of P.W.I that the 1st appellant demanded the money from the deceased for the purpose of establishing a printing press by his father, the 2nd appellant. As the deceased did not oblige, both the appellants were having a grudge against the deceased. From the evidence it is clear that both of them went to the Railway Station at Chinaravuru and the 1st appellant was armed with a knife. There is every reason to accept the testimony of P.W.I to the effect that the 2nd appellant stated that “kill him, the obstruction of the deceased will be removed”, particularly because the deceased also stated so to P.W. 5 immediately after the occurrence. There was hardly any time for tutoring the deceased to implicate anybody. No suggestion was made that the deceased was having a grudge against the 2nd appellant to implicate him unnecessarily. The oral dying declaration given by the deceased to P.W. 5 is consistent with the dying declaration Ex.P-11 recorded by P.W. 14. There is thus ample evidence to show that the 2nd appellant instigated the 1st appellant to kill the deceased.
13. In the decision of the Bombay High Court in Emperor v. Amiruddin Salebhoy Tyabjee, AIR 1923 Bom. 44(2)., the learned Chief Justice of Bombay High Court noted with approval the definition of instigation by Russel on Crimes p. 164 as follows:
“Now a person is said to instigate another to an act when he actively suggests or stimulates him to the act by any means or language direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement: Russell on Crimes, p. 164”
The words used by the 2nd appellant in our view do amount to instigating the 1st appellant for committing the murder of the deceased.
14. In M.A Reddy v. Hyderabad State, ., the question that arose for consideration, was whether the direction given by the appellant therein amounted to instigation and whether the presence of a person giving the direction on the spot would make him guilty under Section 302 read with Section 1141.P.C. While confirming the conviction of the appellant, their Lordships observed as follows:-
“But if the evidence makes out no more than mere instigation, it is, even so, instigation by a person who is present at the scene of offence when the act is committed. In such a case the instigator is ‘deemed’ to commit the murder by virtue of Section 114, Indian Penal Code.”
15. Sri Bali Reddy, however, relying on a judgment of the Supreme Court reported in Jainul Haque v. State of Bihar, ., submits that the evidence of exhortation is in the very nature of things a weak piece of evidence and, therefore, no conviction can be based on such evidence. In that case their Lordships of the Supreme Court noted that the evidence of the eye witnesses was contradictory and unconvincing. There was discrepancy between the first information report and the deposition of the witness about the part played by the accused. That evidence was not accepted by the High Court. It was in those circumstances that their Lordships observed that the evidence of exhortation was a weak piece of evidence. But their Lordships further added that “unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant.” As in that case the evidence adduced at the trial was found to be contradictory and far from convincing, the conviction was set aside, but in the instant case as we have noted above the evidence of instigation given by the 2nd appellant is consistent and reliable.
16. He next relied on a Division Bench judgment of the Madhya Pradesh High Court reported in Girijaprasad v. State of M.P., 1992 Crl.L.J. 754 The evidence of exhortation or instigation in that case was found to be discrepant and it was not clear as to what words the accused therein uttered. The learned Judges reaffirmed the principle that the evidence of such kind is a weak evidence and cannot be given any credence.
17. There cannot be any doubt that the evidence of instigation is in its nature a weak evidence but here the evidence is consistent and convincing and there is no reason why that evidence should not be relied upon to base a conviction. As observed above, in this case the evidence of P.Ws. 1 and 2, and the dying declaration of the deceased clearly establishes that the 2nd appellant instigated the 1st appellant to kill the deceased and remove the obstruction. Therefore, we hold that the trial court rightly convicted the 2nd appellant under Section 302 read with Section 109 I.P.C. but as the 2nd appellant was also presentat the scene of offence, we alter the conviction to one under Section 302 read with Section 114 I.P.C. instead of Section 302 read with Section 109 I.P.C. In the circumstances, we find no merit in this appeal. It is accordingly dismissed.