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PETITIONER: ELKUR JAMEESU

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT:       27/11/1997

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                THE 27TH DAY OF NOVEMBER, 1997 Present:               Hon’ble Mr. Justice M.K. Mukherjee               Hon’ble Mr. Justice S.P. Kurdukar               Hon’ble Mr. Justice K.T. Thomas B. Kanta Rao, Adv. the appellant G. Prabhakar, Adv. for the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: M.K. MUKHERJEE, J.      The  appellant   was  indicted  before  the  Additional Sessions Judge,  Mahaboob Nagar  for the murder of his uncle Elukur Yasalah. Though the trial Judge exonerated him of the above charge,  the High  Court, in  appeal preferred  by the respondent-State, convicted  and  sentenced  him  to  suffer imprisonment for  life for  the murder.  Hence  this  appeal under Section 379 Cr.P.C. at his instance. 2(a) According to  the prosecution case on July 18, 1990 the appellant, who  is a resident of village Konkal, came to the house of  the deceased  in village Thummilla - which is at a distance of  20 kms. from Konkal- an asked for some money by way of  loan. when  the deceased  expressed his inability to accommodate him,  t he appellant implored the former to sign some papers  to obtain  loan on   the  security of the joint family property.  This entreaty  was also turned down by the deceased. After staying for that night at the deceased place the appellant left for his village on the following morning. 2(b) In that  night (July  19, 1990)  the deceased  went  to sleep in  the outer  verandah of his hut, with his son Elkur Rathanam (P.W.1) and wife Sarojamma (P.W.2) sleeping inside. At or  about 11  P.M., P.Ws.  1 and 2 heard the cries of the deceased and  when they  rushed out  they saw  the appellant running away with some weapon in his hand. The deceased told them that the appellant had stabbed him. they found that his intestines had  come out  and he  had injuries  on his hands also. A few minutes later he succumbed to his injuries. 2(c) On the  following morning  at or  about 8.30 A.M. P.W.1 went to  Rajoli Police Station, which is at a distance of 17 kms. from  the village,  and lodged an information about the incident. Shaik Mohammad Hussain (P.W.9), a Sub Inspector of

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Police, registered  a case  on that  information and took up investigation. He  went to  village Konkal  at or about 9.30 A.M. and held inquest upon the body of the deceased. He then sent it for post mortem examination by Dr. K. Pullanna (P.W. 7) Civil  Assistant Surgeon of the local Government hospital who found the following injuries on his person:-      "1. An incised wound extending from      epigastric region  to right  lumber      region   oblique    in   direction,      measuring 6"  x 4"  x 6", edges red      and regular. large intestine, small      intestine, omentum  came  out  side      through this  wound faecal  matters      also  came   outside  through  this      wound.      2. An  incised wound  on the dorsal      aspect of  right wrist joint 3" x 1      1/2" x  1" edges  red and  regular,      all tenders are exposed.      3. An  incised wound  on left orsal      aspect of  left wrist joint size 2"      x 1" x 1/2" edges red and regular."      He  opined   that  the  death  was  due  to  shock  and haemorrhage caused by the injuries. 2(d).     In course  of the  investigation the appellant was arrested on  July 29,  1991 and  at his  instance his  blood stained shirt  (M.O.7) and  a  sickle  (M.O.6),  also  blood stained, were  recovered. The  seized articles  were sent to the Forensic Science Laboratory for chemical examination. On receipt of  report of  such examination  and  completion  of investigation the  police submitted charge-sheet against the appellant. 3.   The appellant pleaded not guilty to the charge levelled against  him  and  his  defence  was  that  he  was  falsely implicated. 4.   Since the  factum of the death of the deceased owing to the injuries  sustained by  him  was  not  disputed  by  the defence the main question that fell for determination before the Courts  below was whether the evidence of P.WS. 1 and 2, on  acceptance   of  which   rested  the   success  of   the prosecution, was  reliable. In  acquitting the appellant the trial Court  held that  they were  not eye-witnesses  to the incident and  their evidence  that were not eye-witnesses to the incident  and their evidence that the deceased told them that the  appellant had  stabbed him  was only  hearsay. The trial  Court   further  held  that  their  claim  that  they identified the  person who was fleeing away from their house was the  appellant could  not be  accepted  as  it  was  not possible for  them to identify the assailant in the darkness of the night. Some  inconsequential and minor contradictions in the  evidence of  P.Ws. 1  and 2  were also  pressed into service by the trial Court. 5.   In appeal  the High  Court reappraised the evidence and held that  the evidence  of P.Ws.  1 and 2 clearly and fully supported the prosecution case. 6.   Having given  our anxious consideration to the evidence of P.Ws. 1 and 2 and the attending circumstances of the case we find  no merit  in this  appeal. The  observation of  the trial Court  that the  statement made by the deceased before P.Ws. 1  and 2  that the appellant had stabbed him could not be relied upon as it was ’hearsay’ is opposed to fundamental principle of  criminal jurisprudence  for the  statement  so made is  not only admissible as evidence under Section 32(1) of the  Evidence Act but can also be made the sole basis for conviction, if  it can  be safely  relied  upon.  The  other

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observation of  the trial Court that it was not possible for P.Ws. 1  and 2  to identify  the appellant as the person who was running  away form their house, cannot also be sustained for their  uncontroverted evidence  shows that  a  lamp  was burning on  the Verandah  then  and  therefore  it  was  not difficult for  them to  identify the appellant, more so when he was their close relation. 7.   Having regard  to the fact that the incident took place at an  unearthly hour  of the  night in  the  house  of  the deceased, it  cannot be gainsaid that P.Ws. 1 and 2 were the most natural  and probable  witnesses. This  apart, we  find that inspite  of searching and lengthy cross examination the defence could not succeed in eliciting any answer favourable to it.  Judged in  that context,  we do  not find any reason whatsoever to  disbelieve their  testimony that they saw the appellant  running  away  form  their  house  and  that  the deceased told  them that  it was  the appellant  who stabbed him. When  these two places of evidence are considered along with the medical evidence and the F.I.R., which contains the substratum of  the prosecution  case  and  was  lodged  with utmost dispatch,  the only  legitimate inference that can be drawn is  that the prosecution has been able to conclusively prove that the appellant committed the murder of his uncle. 8.   In the result the appeal fails and is hereby dismissed.