Aasari
Krishna Murthy @ Krishna Vs. State of A.P. [2009] INSC 1399 (6 August 2009)
Judgment
CRIMINAL
APPELLATE JURISDICTION CRIMINAL APPEAL NO.278 OF 2008 AASARI KRISHNA MURTHY @
KRISHNA ...APPELLANT VERSUS
ORDER
1.
This appeal by way of special leave arises out of the following
facts:
2.
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.
1.
2.
3.
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 4
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.
5 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 body 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 6 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 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 7 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 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 8
judgments cited above by the learned counsel, do not support his case. For the reasons
above, we find no merit in the appeal.
Dismissed.
..............................J. (HARJIT SINGH BEDI)
..............................J. (J.M. PANCHAL)
NEW DELHI
AUGUST 6, 2009.
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