MALOTH SOMARAJU Vs. STATE OF A P

JUDGEMENT

(1.) Appellant Maloth Somaraju challenges the judgment of the High Court whereby the High Court allowed the State appeal challenging the acquittal by the Trial Court. He was tried for the offence punishable under Section 302, IPC on the allegation that on 15.05.1999 at about 2 a.m. at night he committed the murder of his elder brother Maloth Krishna (hereafter referred to as "deceased" for short) by causing his death with an axe injuring his temporal region, nose and face which ultimately resulted in his death.

(2.) It is the case of the prosecution that at that time suddenly the Appellant came and assaulted Krishna which incident was seen by Heeramani (PW-1) who raised cry which attracted the neighbours who were mostly the relatives of her husband including his parents, his brother, his sister-in-law and cousins of the deceased. All his relatives are Banjara by caste. The deceased was immediately carried in an auto rickshaw to Singereni hospital where he was declared as brought dead. On that Maloth Heeramani (PW-1) had lodged a report before Kothagudem Police Station. Since she was illiterate, Heeramani (PW-1) got scribed the report by Rayala Sathyanarayana (PW-14) and submitted it to Kothagudem police station at 6.30 in the morning. It has come on record that the report was immediately forwarded to the concerned Magistrate who received it at 7.30 in the morning. In this report Heeramani (PW-1) complained that in the midnight she woke up her husband for answering the call of nature. After that, she and her husband slept. As they were talking to each other, her brother-in-law Maloth Somaraju, the accused-Appellant came from behind the house with a sickle (Kota Kathi) and attacked her husband on his left temporal, nose and under the nose due to which there was heavy bleeding. She further suggested that she raised cry and on hearing her cries, her father-in-law Balunayak (PW-2), her mother-in-law, Maloth Bhikri (PW-3), elder brother-in-law Amar Singh (PW-4), his wife Kausalya (PW-5), her second brother in law Phool Singh (PW-6), his wife Maloth Dwali (PW-7) came there. On seeing them, accused Somaraju fled away. After that her husband was shifted in the auto of Mohan Rao to Company Singereni main hospital. However, the doctors there told that her husband was dead. She then narrated that accused/Appellant was addicted to drinking and used to come to house and beat her in-laws and was harassing them for which her husband had to pacify them and about fifteen days back when the accused bit her in laws, her husband had beaten the accused and it was because of this that he bore grudge against her husband and axed her husband. The offence was registered and the investigating officer rushed to the spot, got executed inquest Panchnama as also got drawn the map of the spot and sent the body for autopsy. Autopsy was conducted by M. Gopal Swamy (PW-16). Autopsy report is Exhibit P-19. The autopsy was conducted at 11 a.m. in the morning. According to the doctors, the approximate time of death was 8 to 10 hours before the autopsy. After the completion of the investigation, the charge-sheet was filed. At the trial, the prosecution examined as many as 20 witnesses and marked 31 documents. In his defence, the plea of accused is of total deny. There was no defence evidence tendered by him. The Sessions Judge acquitted the accused which acquittal was challenged by the State by filing an appeal which appeal was allowed convicting the accused of the offence under Section 302, IPC and awarding sentence of life imprisonment.

(3.) Shri Anand Dey, learned Counsel appearing on behalf of the Appellant contended before us that the High Court had committed an error in upsetting the verdict of acquittal given by the trial Court. The learned Counsel urged that the Sessions Judge had taken a possible view and merely because another view could be taken of the matter, the High Court could not have converted the verdict of acquittal into that of conviction. The learned Counsel strenuously and painstakingly took us through all the evidence and contended that Heeramani (PW-1) was the sole eye witness and it was impossible for her to identify the accused as admittedly she as well as the deceased were sleeping in the courtyard and that was a new moon night and thereby there was complete darkness. Learned Counsel further argued that there were number of suspicious circumstances in the matter inasmuch as though her own cousin was sleeping on the third cot, he did not support the prosecution when he was examined as PW-8. In fact the learned Counsel was at pains to suggest that Heeramani (PW-1) had a definite motive to falsely implicate the accused inasmuch as the sister of her husband had married her brother and both her brother as well as his wife had died unnatural death because of which the relations between her family and the family of her husband were strained. It was further argued that the whole investigation was slipshod and casual inasmuch as the investigating officer had not even sent the blood stained clothes of the only eye witness for examination. He did not even send the clothes which were blood stained. Learned Counsel pointed out from the record that though it was the version of the witness that there were three cots in the courtyard, when the investigating officer went there, only one cot was found. The investigating officer did not even bother to seize the cot which was blood stained. That apart, the learned Counsel pointed out that there were serious discrepancies in the matter as the scribe of the FIR, Rayala Sathyanarayana (PW-14) had suggested that he had written the report at about 9-9.30 a.m. According to the learned Counsel, by then, her relations and, more particularly, Bhukya Dhalsingh (PW-13) had come and, therefore, there was every possibility that the relatives had persuaded her to falsely implicate the accused on account of the strained relations. The learned Counsel also pointed out that it had come in the evidence that the Heeramani (PW-10) was in fact sleeping inside the house and outer door was chained from outside and in fact it was only after the said door was opened by her father-in-law, who come immediately after the assault, that she came out and, therefore, it was impossible for her to see the accused. In the FIR, she had never referred to any bulb and that she had made the improvement regarding existence of a bulb/source of light only in her cross-examination. Learned Counsel, therefore, urged that if all these suspicious circumstances were viewed in favour of the verdict of acquittal, the High court should not have upset the verdict merely because some other view favouring the conviction was possible.