This appeal by way of special leave arises out of the following
facts:
The deceased, Chitrada Varahalu, had converted to
Christianity and constructed a Church in village Kotnapalli to
propagate Christianity though he belonged to village Sagaram.
About two months prior to the incident, which happened on 14th
April, 2000, P.W.1 the wife of the deceased (Chitrada Lakshmi) had
gone to her father’s house at Burugupalem and had stayed on for
about two months, but on her return home to Sagaram on 12th
April, 2000, at about 12.00 midnight, she saw that her husband
had brought Jaggayamma (wife of the appellant) to live with him as
well. On this PW.1 and her husband had a quarrel but by a
settlement it was agreed between them that all three would live
together. This development created some friction between the
appellant and the deceased.
At about 7:30 p.m. on 14th April, 2000, the appellant and five
others entered the house of PW.1 as the deceased was taking his
food and whereas some of the persons caught hold of the deceased
the appellant caused him one injury with a knife on the chest. The
deceased, being seriously injured, rushed to the house of his elder
brother Chitrada Mutyalayya a short distance away and fell in
Pooja room and shouted out to PW-3, his sister-in-law, that he had
been attacked by the appellant, and then succumbed to his injury.
All the accused then attempted to run away but two of them were
caught and taken to the police station. On interrogation these two
revealed the names of the others and they too were arrested.
On the completion of the investigation all the accused were
brought to trial for offences, punishable under Sections 449, 341,
302 and 302 read with 114 of the IPC. The trial court in its
judgment on 22nd April, 2003 held that the eye witnesses account
with respect to the murder was not worthy of belief as it appeared
that PW.1 had not seen the actual incident as she was bathing her
young daughter on one side and as such there was no evidence
with respect to the murder. It also found that the prosecution
story with regard to the involvement of other accused was not made
out and having so held acquitted five of the accused in toto and
convicted the appellant herein for the offence punishable under
Section 449 of the IPC.
An appeal was thereafter, preferred by the State of Andhra
Pradesh with respect to the acquittal of all the accused. The High
Court in its judgment dated 23rd October, 2006 dismissed the
appeal qua the five accused but allowed the same qua the
appellant and in doing so convicted him for an offence punishable
under Section 302 as well, for having committed the murder. The
present appeal is before us in these circumstances.
Mr. S.N. Bhat, the learned counsel for the appellant, has first
and foremost, argued that the finding of the trial Court that there
was no eye witness to the murder was fully justified as PW.1 who
was statedly an eye witness and had been bathing her child in
remote part of the house and was, thus, not in a position to have
seen the actual assault on the deceased. He has further submitted
that the evidence of PW.4 that he had seen the accused running
away with the knife was also not worthy of belief as he had made a
glaring improvement in his evidence in Court by deposing that he
had seen a knife in the hand of the appellant whereas he had not
stated so to that effect in his statement under Section 161 of the
Cr.P.C.
The learned State counsel has, however, pointed out that in
addition to the eye witness account of PW.1 the dying declaration
made by the deceased to PW-3 was fully in order and in the light of
the fact that the site plan prepared contemporaneously indicated
that the deceased had run from his kitchen to the house of PW.3,
proved the prosecution story beyond doubt.
We have heard counsel for the parties very carefully. We find
absolutely no reason whatsoever to disbelieve PW.1 the primary
witness. PW.1 is the wife of the deceased and she stated that she
had seen the incident from the place where she was bathing her
daughter. She further stated that the house of her sister-in-law i.e.
PW.3 was at a very short distance from her house and after the
injury had been suffered by her husband he had rushed into her
house, called out the name of the appellant as his assailant and
had then died in the Pooja room. We find that this statement finds
full corroboration from the site plan (Ext.P.22) which had been
prepared on 15th April, 2000 by the police officer. It reveals a trail
of blood from the kitchen where the incident had happened to the
bed room, then to the verandah, then to the open site, and finally
to the Pooja room of PW.3 where the dead boy was found. The High
Court has observed that even assuming that PW.1 was bathing her
child in the open space, the very fact that the house in question
was of very small dimensions would have made it possible for her
to observe the actual incident. We also notice that the parties were
well known to each other, being virtual neighbours, and as there
was no previous history of rancour or ill-will the question of any
false implication would not arise. We are further of the opinion
that the medical evidence corroborates the eye witnesses account
given by PW.1, as the doctor found one injury in the chest which
had penetrated deep into the rib cage and caused very severe
injuries to several vital organs.
Mr. Bhat has finally submitted that the present case would
fall within the scope of exception (1) to Section 300 of the IPC and
that the appellant was entitled to claim that the offence should be
punishable under Section 304 (I) or (II) of the IPC. He has pointed
out that the wife of the appellant had eloped with the deceased
about a week prior to the incident and as the wife of the deceased
had returned from her parents home two days earlier something
untoward had happened which had led to the incident. He has
also relied upon the judgment reported in K.M. Nanavati Vs. State of
Maharashtra [AIR 1962 SC 605].
We have gone through the aforesaid cited judgment and find
that the facts therein were distinct and different. In that case
although Nanavati was conscious of his wife’s affair with Ahuja
deceased, the actual incident happened as Ahuja had made a
vulgar remark about Nanavati’s wife. The Supreme Court held that
this would amount to grave provocation and would be covered by
Exception (1). In the case before us it is virtually the admitted
position that wife of the accused had eloped with the deceased
about a week before the incident and it was after 12th April, 2000
when Laxmi the wife of the deceased returned that the incident
happened in the evening of 14th April, 2002. This matter would,
thus, not fall within exception (1) as the provocation, even if grave,
could not be said to be sudden.
Mr. Bhat has finally submitted that as only one injury had
been caused though on the chest of the deceased, the matter would
fall within Section 304 part I or II as there was no apparent
intention to cause death or the specific injury that caused the
death. He has in this connection relied upon Jagtar Vs. State of
Punjab [1982 (2) SCC 342], Hemraj Vs. State (Delhi Admn.) [1990
(Supp.) SCC 291, Khanjan Pal Vs. State of U.P [1990 (4) SCC 53].
We see that all three judgments are virtually on the same footing
and as such we will deal with only one. In Jagtar Singh’s case
(supra) undoubtedly one injury had been caused on the chest of
the deceased but this was a sequel to a sudden quarrel when the
accused and the deceased happened to suddenly meet outside the
house and prior to the actual assault there had been an exchange
of abuses as well. We are, therefore, of the opinion that the
judgments cited above by the learned counsel, do not support his
case. For the reasons above, we find no merit in the appeal.
Dismissed.