JUDGMENT
1. This is an appeal filed by the sole accused in S.C. No. 185 of 1991 on the file of the Additional Sessions Judge, Eluru, West Godavari. The accused is the sister’s son of the deceased, who is a resident of Pasalapudi village in East Godavari district. The accused went away to an Arab country two years back. On 3-4-1991, the accused returned from the Arab country and went to the house of Raghavulu, the relation of the accused. The family of Raghavulu told something against the family of the deceased and the accused abused the family of the deceased on that night. The wife of the accused was sick and was not able to lead family life. Therefore, he wanted to marry somebody. On 4-4-1991 at about 10 a.m., the accused came to the house of the deceased and asked why they informed his wife and fater-in-law about the proposed second marriage and threatened to kill the deceased and his wife. By saying so, he took out the vegetable cutter belonging to the deceased and hacked the wife of the deceased on her head. She raised cries and fell down. When the deceased interfered, the accused proclaiming that he would also kill him, hacked the deceased with vegetable cutter on his head, face, left eye, left-hand fingers and other parts of the body. The deceased fell down. On hearing the cries of the wife of the deceased, P.Ws. 2 and 4 and others came there and tried to stop the accused. The accused threatened them and ran away. The injured and his wife, Toram Rattamma, P.W. 1, were taken to the Government Hospital, Tanuku. The deceased did not regain his consciousness and died on 7-4-1991 at about 2.45 p.m. in the hospital. On 4-4-1991 at about 1.45 p.m., on receipt of intimation of injuries-Ex. P-10 from the hospital, P.W. 12 Head Constable went to the hospital and recorded the statement of P.W. 1 under Ex. P-1 and sent Ex. P-1 to Indrajavaram Police Station on the point of jurisdiction.
2. P.W. 13 the Sub-Inspectoor of Police, Indrajavaram Police Station received Ex. P-1 and Ex. P-10 on 4-4-1991 from the Tanuku Police Station and registered it as Crime No. 23 of 1991 under Section 325 of Indian Penal Code and issued F.I.R., Ex. P-11. He went to the hospital, examined P.W. 1 and P.W. 4, and seized the blood-stained clothes M.Os. 3 to 5 under the cover of mediator’s report Ex. P-2. He also visited the scene of offence and examined the same in the presence of meditors and prepared Ex. P-3. He also prepared the sketch of scene of offence Ex. P-12 and seized M.Os. 1, 2 and 6. He examined P.Ws. 2, 3, 5 and others. On 7-4-1991, he received intimation of the death Ex. P-13 of the deceased and altered the section of law into one under Section 302 of Indian Penal Code and issued F.I.R., Ex. P-14. P.W. 14 – the Circle Inspector, Tanuku, received the copy of Ex. P.-14 on 7-4-1991 and took up investigation. He held inquest over the dead body of the deceased in the presence of P.W. 7 and another and prepared an inquest report-Ex. P-4. The dead body of the deceased was sent for post mortem examination and P.W. 9 – the Deputy Civil Surgeon conducted the post mortem examination and found nine external injuries. On internal examination, he found fracture of front and temporal bones and cerebellum diffused. The Surgeon opined that the patient died of shock and haemorrhage due to multiple injuries. He issued Ex. P-5 post mortem certificate. The accused was arrested on 6-4-1991 by the Sub-Inspector of Police and sent him for remand and after completing the investigation, a charge-sheet was filed.
3. The learned Judge believed the version that has been spoken to by the direct witnesses, in particular P.Ws. 1, and 4 and came to the conclusion that the prosecution has made out the case beyond all reasonable doubt, which ultimately resulted in convicting the accused for offence under Section 302 of Indian Penal Code and sentencing to undergo rigorous imprisonment for life. It is against this conviction, the accused-appellant filed the present appeal.
4. The case of the prosecution is that the accused-appellant wanted to get secretly married for the second time and this is alleged to have been revealed by the deceased to the wife of the accused. This is the root cause of anger and provocation, which resulted in the death of the deceased. The incident or scene of offence is at the house of P.W. 1. stated that the incident took place at about 10 a.m. P.W. 1 also stated in the evidence that on raising the cries, P.W. 2 and another, Thota Subbarao came to the scene of offence and hence they are natural witnesses. P.Ws. 2 and 4 stated before the Police about the incident resulting in registering of the crime. P.Ws. 1, 2 and 4 were examined as having knowledge and natural witnesses of the incident. It is mentioned in the record of the lower Court that these three witnesses were examined on 9-11-1992 and on the adjourned date, the cross-examination was noted as ‘nil’ and the Advocated as ‘not present’.
5. It has been noticed by this Court that with a view to get the matter adjourned, either the Advocate is not present and even if the Advocate is present, he/she reports that there are no instructions from his/her clients. It has also to be noticed in cases like this that when corss-examination is deferred and when it is done on a subsequent date, the subsequent version of the witnesses contradict with the earlier version. It has to be observed in this case that the Advocate is absent. When an Advocate files appearance, he/she is expected to be present during the trial of the case and discharge his/her function in the best interests of justice. Otherwise, the Advocate’s non-appearance amounts to professional misconduct. In the instant case, the part played by the Advocate in not being present for corss-examination and the said three witnesses turning hostile in a wholesale manner make us to feel that it is a clear case of manipulation by the party in collusion with the. Advocate with an intention to get acquittal. Under such circumstances, it is the duty of the Court to take the earliest version given by the witnesses as correct basing on the previous material available on record or from the evidence of either investigating officer or subsequent witnesses. P.W. 1, 2 and 4 gave consistent version in their evidence, but it was adjourned for corss-examination. The Sessions Judges are normally expected to maintain cordial relations with the Bar, but not at the cost of justice. The sessions Judges are not expected to adjourn the recording of evidence in part and that practice is deprecated. In the instant case, since the Advocate has not cooperated, the Sessions Judge was not in a position to proceed with the case. So, we cannot find fault with the Sessions Judge, but we are concerned with the manner in which the witnesses in sessions cases are being manipulated after time is given. We fell that the Sessions Judges must be directed to record the evidence either on the same day or at least complete the same on the subsequent day. If this is done, the mischief of manipulation can be eliminated. If this is eliminated, then complete set of evidence is available on record for administration of justice. It is for the Sessions Judges, in case like this where witnesses adopt resilent attitude, to accept the evidence recorded in one sitting. Since the resiling attitude has been taken by the vital witnesses and the earlier version is consistent with the medical evidence and other evidence independent of hostile witnesses, we feel that the second version given by hostile witnesses after considerable time cannot be accepted. Further, the other witnesses have corroborated the earlier version given by the hostile witnesses. We hold that the learned Judge has rightly convicted the accused even though the cross-examination of PWs. 1, 2 and 4 had taken after quite some time and correctly appreciated the evidence on facts and circumstances of the case. We confirm the reasoning given by the learned Judge. If we accept the reasoning, we have to hold that the sole accused is guilty of the offence he is charged with.
6. The hositle attitude of the witnesses has become the order of the day. It appears that the Courts below are taking a lenient view on the resiling events that take place during the course of the trial. This is a matter of concern because where the witnesses state on oath in the Court in the first instance and after taking adjournment on some pretext, the witnesses turn hostile, which is nothing but blatant manipulation of evidence. It is the duty of the Court in such cases to proceed for perjury against the persons concerned. When the statements have been made in the Court during the trial and subsequently the witnesses resile, the Court is competent to take steps to initiate proceedings for perjury and, in the instant case, the Court below is perfectly justified in taking steps to proceed for perjury. We appreciate the stand taken by the learned Additional Sessions Judge and believe that the same trend will be followed by other Sessions Judges too in similar situations so that the manipulation can be curbed at the initial stage itself.
7. Coming to the offence in this case, there is no motive to cause death and there is no prior enmity. Since the accused had caused injuries in a heat of anger and provocation, we fell that the case will fall under Section 304 Part-I of Indian Penal Code. Therefore, the conviction and sentence under Section 302 of Indian Penal Code is set aside and the accused is convicted for offence under Section 304 Part-I of Indian Penal Code and sentenced to undergo imprisonment for ten years. In the result, subject to the modification.
8. Order accordingly.