KINDU BALANNA Vs. STATE OF A P

JUDGEMENT

(1.) This criminal appeal is directed against the conviction and sentence of Rigorous Imprisonment for seven years and imposition of fine of Rs.1,000/-, in default of payment of fine, Simple Imprisonment for three months, awarded by the Principal District and Sessions Judge, Visakhapatnam, in S.C. No. 86 of 2002.

(2.) The factual matrix that arises for consideration can be briefly stated as follows: The accused Kimudu Balanna is the resident of Seekari Colony, Pedabayalu Mandal and the deceased Kimudu Latchanna is the resident of Velapalem village in Pedabayalu Mandal. They are brothers. P.W. 1, Kimudu Ninubuddi is the wife of the deceased and elder sister-in-law of the accused. P.W. 2 Kimudu Sanyasi is the brother of the accused as well as the deceased. The accused is a vagabond and a truant always committing petty thefts in the village and around the vicinity of Sikaru Panchayath. P.W. 2 and others reprimanded him several times to change his behaviour. He was continuing his attitude by committing thefts and did not heed to their words. On 13-11-2000 the accused committed theft of one pumpkin belonging to his own sister-in-law Kimudu Gasamma and sold the same for Rs.10/- and consumed alcohol. On knowing the same, Kumudu Gasamma abused the accused and reported the matter to P.Ws. 1 and 2 and the deceased. On 13-11-2000 during night at 8.30 p.m.; the deceased along with his wife and son Dharma Rao came to the house of P.W. 2, where the accused was living with his sickly brother. At that time the accused was also present at the house of P.W. 2. P.Ws. 1 and 2 questioned and admonished the accused about the committing of theft of pumpkin of Kimudu Gasamma. The accused denied the offence and grew wild and decided to eliminate the deceased, who insulted him. When the deceased was returning to his house on the same night along with P.W. 1 and his son, the accused came from behind and hacked on the head of the deceased with an axe with a view to murder him. On seeing the incident, P.Ws.1, 2 and others took the injured and kept him in the varandah of the house of P.W. 2. The accused flew away with the axe. Kimudu Latchanna died having succumbed to the injury. P.Ws. 1, 2 and 3, Kimudu Dharma Rao and Vanthari Balanna witnessed the occurrence. On receipt of the complaint from P.W. 1. P.W. 8, Sub Inspector of Police registered the same as Crime No. 25 of 2000 under Section 302 IPC. P.W. 7 conducted autopsy over the dead body of the deceased and issued Ex.P-6 post-mortem certificate. P.W. 9 arrested the accused and filed charge- sheet against the accused after completing investigation for the offence under Sec. 302 IPC before the Mandal Executive Magistrate, Pedabayalu. He examined two witnesses, namely, P.W. 1 and Kimudu Dharma Rao and thereupon committed the case to sessions. The Principal District and Sessions Judge, Visakhapatnam, held camp court at Paderu and conducted trial in this case. He has framed a charge under Section 302 IPC. The accused has pleaded not guilty. He stated that when he was being beaten, he pushed the deceased and he fell down and came into contact with his own axe and died. P.W. 1 is the elder sister-in-law of the accused. She spoke about committing of theft of pumpkin by the accused belonging to another brother- in-law Ramana and her husband at 7.30p.m., reprimanding him as to why he committed theft of pumpkin. She also spoke about her husband beating the accused with stick and the accused grew wild at the beating and admonishing by the deceased and bringing out an axe from the house of her brother-in- law and hacking on the head with that axe causing profuse bleeding. P.W. 2 deposes about the quarrel that took place at 8.00 p.m., in between the accused and the deceased and the deceased leaving the house and going away. Later, P.W. 1 and other hurriedly came to him and informed him that the deceased was killed. This witness was treated as hostile by the Prosecutor. P.W. 3, Killo Siddeswara Rao deposes that on Monday at about 8.30 p.m., the deceased came to the house of P.W. 2, who was bedridden at that time. The accused was also present. After seeing P.W.2, he questioned the accused as to why he had stolen a pumpkin belonging to their sister- in-law, whose husband died long back. The deceased not only reprimanded the accused by saying that the act of the accused diminished the family prestige, but it was inexcusable to steal a pumpkin belonging to a poor lady who was a widow. It is also his version that the deceased beat the accused with a small stick twice or thrice. After beating the accused, the deceased was coming out towards his house. When the deceased was in front of his house, the accused came with an axe, M.O.I and hacked the deceased on the head. Immediately, the deceased fell down. At that time he was taking his food on the varandah. The wife and son of the deceased and others shifted him to the house of P.W. 2 where he succumbed to injuries. It is also his version that himself, Balanna and Suddanna caught hold the accused and tied him before shifting him to the house of P.W.2. The accused was tied on the varandah of Buddanna. The accused dropped the axe near the place and he also procured the axe and kept by the side of the accused. It is also his version that there was no electricity supply and it was pitch darkness during that period. P.W. 2 was suffering with acute tuberculosis. P.W. 4, Vantari Balanna deposes that he shifted to Sikaru colony about 10 years back. The accused is the younger brother to the deceased and to P.W. 2. He knew P.Ws. 1 to 3. It is also his version that he knew one Gasamma who was sister-in-law to the accused and deceased. The deceased was residing in Velapalem and he was a cattle grazer, whereas the accused is a truant and at times he commits small thefts like theft of vegetables, theft of fowls, theft of utensils etc. His house is opposite to the house of P.W. 3. It is his further version that on Monday about one year eight months back the deceased with his wife and son came to the house of P.W. 2 to see him as P.W. 2 was suffering with T.B., and was bedridden. The accused was residing with P.W. 2 in his house. After enquiring the health of P.W. 2, the deceased picked up a quarrel with the accused on the ground mat the accused had stolen a pumpkin belonging to Gasamma prior to the occurrence. The deceased rebuked the accused that the accused was not forbearing commission of thefts and stealing a pumpkin belonging to a widowed lady who was no other than their own sister-in-law and it was not excusable. After reprimanding the accused, the deceased along with his wife and son Dharma Rao were coming out of the house, when they reached in front of the house of P.W. 3, the accused came behind with an axe like M.0.1 and hacked on the head of the deceased causing bleeding injury and the deceased fell down in a pool of blood. The son of the deceased Dharma Rao shouted and cried loudly uttering that the accused hacked the deceased to death. After hearing the cries of Dharma Rao, he came out and saw the deceased died in a pool of blood while P. Ws. 1,3 and the son of P. W. 1 were present. It is also his version that that he was holding the accused and shifting of the injured to the house of P.W. 2, but the injured was dead. P.W. 5 Setty Lakshmana deposes about the theft of two chickens one week prior to the incident. He also speaks that the accused frequently committing thefts in the village and the aggrieved people raising the same in the village panchayat. P.W. 6 Seekara Sanyasi Dora deposes about giving the advise to P.W. 1 to give a report to the V.A.O., and also acting as one of the mediators and observation of the scene and the seizing of blood stained earth in front of the house of P.W. 3. Ex.P-3 is the scene of observation report. M.0.2 is the blood stained earth. He also speaks about the holding of inquest Ex.P-4 is the inquest report. It is also his version that the accused surrendered before the police. P.W. 7 is Dr. K.Raghava Reddy speaks about the conduction of post-mortem examination over the dead body of the deceased and finding the following external injuries: 1. Spindle shaped incised wound of 6x3 x 3 c.m. over the right front parietal region of scalp, directed anteroposteriorly with failing of both ends. Margins are smooth, even, clean cut and averted. The skin subcutaneous tissues, galia, skull and meninges are cut to the depth of the wound. Brain tissue is visible. No abrasions are seen on the edges of wound. No foreign particles are seen in the wound. He was of the opinion that the scalp injury might have been caused by a sharp weapon like M.0.1. On opening skull, he found the frontal parietal bone is fractured antero-posteriorly along the line of external scalp wound. The outer table is clean cut whereas the inner table shows multiple fragments, which are driven inwards into the brain tissue causing laceration. Fractured ends are red in colour. He issued Ex.P-6 post-mortem examination report. P.W.8, Y.V. Naidu deposes about P.W. 1 giving Ex.P-1 report alleging that the accused killed her husband with an axe. Immediately, he registered the same as Crime No. 25 of 2000 under Section 302 IPC and sent the express FIR to all the concerned. Ex.P-7 is the original FIR. P.W. 9 was the Inspector of Police, Paderu from December, 1999 to July,2002. He speaks about taking over the investigation, visiting the scene of offence, conducting of inquest and drafting of observation report. He prepared Ex.P-13 rough sketch and sending the material objects to the Forensic Science Laboratory on 20-11-2000. Ex.P-8 is the FSL report. He also speaks about the filing of chargesheet. After the trial, the Principal District and Sessions Judge found the accused guilty for the offence punishable under Section 304 Part II IPC and convicted and sentenced the accused to undergo Rigorous Imprisonment for seven years and also imposed a fine of Rs. 1000/-, in default of payment of fine, Simple imprisonment for three months. Aggrieved by the same, the accused preferred this criminal appeal.

(3.) It has to be seen whether the prosecution has proved the guilt of the accused beyond all reasonable doubt for the alleged offence under Section 304 Part II IPC. This case arises under the Code of Criminal Procedure, 1898 (old Code). I state that in spite of Article 50 of the Constitution of India contemplating separation of judiciary from the execute, no steps were taken to comply with the constitutional mandate. With the result, there is no separation of judiciary from the executive in the agency areas and the Executive Magistrates attend to judicial work also. It is high time that the Government should think about its responsibility and comply with the constitutional mandate provided under Article 50 of the Constitution it shall see that separation of executive is made from the judiciary in agency areas also. The cases in the agency areas are being handled by the Executive Magistrates without having any access or meaningful training regarding the judicial work. More over, the provisions of old Code are still being applied in the agency areas. This Act is said to be not on modern lines and it led to modification by passing the Code of Criminal Procedure, 1973 (new Code). In spite of passing of new Code, the procedure contemplated under the old Code is still being applied to tribals in the agency areas. Obviously, the trials conducted for the non- tribals in plain areas is quite different from the trials conducted for the tribals in agency areas. It is not known why the said discrimination is still continued. This Court can only express its displeasure in following the old Code even after its repeal under the new Code and is made applicable to the plain areas where some tribals and non- tribals also reside. It is for the legislature to take note of the same and see that proper justice is rendered to the tribals in agency areas without showing any discrimination in following the procedure during the conduction of trials committal by Magistrates as well as by Sessions Judges. I have perused the record. The committal proceedings passed by the Sub Divisional Magistrate under Section 207 of the Code of Criminal Procedure, 1898 are not in accordance with the provisions specified in Section 207-A of the Code. Section 207-A of the old Code reads as follows:- "Section 207-A: Procedure to be adopted in proceedings instituted on police report: