IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.278 OF 2008

AASARI KRISHNA MURTHY @ KRISHNA …APPELLANT

VERSUS

STATE OF A.P. …RESPONDENT

O R D E R

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.  

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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  

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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.

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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  

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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  

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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  

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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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