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PETITIONER: KOMMU VINJA RAO

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ANR.

DATE OF JUDGMENT:       31/03/1998

BENCH: G.T. NANAVATI,  V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                      J U D G E M E N T NANAVATI,J.      The appellant  was convicted for the offence punishable under   Section 302 IPC by the Sessions Court, East Godavari Division,  in  S.C.  No.198  of  1994.  His  conviction  was confirmed by the Andhra Pradesh High Court.      What has  been held  proved  against  him  is  that  on 2.8.1993 at  about 7.00  p.m., he  assaulted Lakshmi  with a knife and  killed her  on the spot. The prosecution case was that he  had developed illicit intimacy with Lakshmi and for about 8  to 9  years they had stayed together as husband and wife. Some  months before the date of incident , Lakshmi and the appellant  had separated  and since then she was staying in a  thatched  hut  near  the  hut  of  her  father.  After separating from  Lakshmi, the  appellant wanted  to join his first wife-Mariyamma  but Lakshmi  was creating obstacles in his way.  That was  the  reason  why  he  assaulted  her  on 2.8.1993.      In order  to prove its case, the prosecution had relied upon the  evidence of  three  eye-witnesses.  PW-2  Polanati Nookaratnam did not support the prosecution and was declared a hostile  witness. Pw  1-Mariyamma, the  former wife of the appellant did  not support the prosecution fully and  merely stated that  at about  7.00 p.m. on the day of the incident, when  she saw PW 2 running on the road and asked her why she was running  like  that,  she  was  told  by  her  that  the appellant was beating Lakshmi. PW 3, the brother of Lakshmi, fully supported  the prosecution  case and  both the  courts below have  accepted his evidence. Relying upon his evidence and the  evidence of  recovery of  knife by  the accused  in presence of  the village  Administrative Officer  (PW 5) the trial court  convicted the  appellant. The  High Court  also believed the  evidence of  PW 3 and confirmed the conviction of the appellant.      What was urged by the learned counsel for the appellant is that  the High  Court and  also the trial court failed to appreciate that  there was  no light  at the  place  of  the incident and,  therefore, PW 3 could not have identified the assailant of  Lakshmi. He  submitted that  it was raining on that day and as disclosed by the prosecution evidence it had

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become dark  when the  incident had  happened. There were no electric lights  around  because  of  load  shedding.  That, however, cannot  mean that  there was no sufficient light at the time  of the  incident. The  evidence of  PWs  3  and  4 discloses that  the incident  had happened  near the shop of one Kapala  Bapiraju at a distance of about 10 feet. It  can be safely  assumed that  the shopkeeper would  not have kept his shop  open without  providing for  some other  source of light. Moreover,  the incident took place at about 7.00 p.m. and, therefore,  it is not possible to accept the contention that there must have been complete darkness at that time and PW 3  could not  have identified  the assailant.  It was not raining heavily.  There was movement of persons on the road. All these suggest that there was enough light and PW 3 could not have  found it difficult to recognise the appellant, who was none  other than  the person  with whom  his sister  had stayed for 8 to 9 years.      We have  carefully scrutinised the evidence of PW 3 and we find  no infirmity in his evidence. His evidence receives support from  the evidence  of  the  Village  Administrative Officer, and  independent person, who was informed about the incident within  a very  short time.  As we  find  that  the appellant has  been rightly convicted under Section 302 IPC, this appeal is dismissed.