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1957 (4) TMI 69 - High Court Of Andhra Pradesh

1957 (4) TMI 69 - High Court Of Andhra Pradesh - TMI - Dated:- 18-4-1957 - Jaganmohan Reddy, JJ. JUDGEMENT- ( 1. ) This is an appeal by the accused against conviction under Section 304 para (1) of the Indian Penal Code and the sentence of 3 years R. I. passed by the Sessions Judge of Guntur. The accused was charged originally under Section 302, I. P. C. , for the murder of his wife Mannem Lakshmamma by stabbing her with a knife and under Section 309 for attempting to commit suicide by stabbing h .....

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he marriage of the deceased's brother and sister at Ponekallu and were staying in a portion of the house occupied previously by Ankamma, the deceased's uncle and his wife, who is the sister of the accused, On the day of the occurrence except Gunji Thirupathamma, P. W. 3 one of the daughters of P. W. 1, all had gone to attend the marriage in Seetharamareddi's house and when P. W. 1 who is the grand-mother of the deceased returned at 1 P. M. she saw her daughter at the gate of Ankamma& .....

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malingareddi whom she met on the way and gave the report Ex. P-1 to the Police. The Police came and sent the accused to the Government Hospital. The doctor found at least eleven injuries on the body of the deceased some of which were serious having pierced the diapharagm on the right side cutting several muscles as well as the right lung etc. There is no doubt from the doctor's evidence that all these injuries were fatal and death could have occurred 24 hours prior to the post-mortem examina .....

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ile from Ankamma's house. On his daughter aged 8 coming and informing that her sister wag killed by the accused and that her husband also fell down unconscious, he and his brother came to the scene of offence and saw that his daughter was lying dead with injuries on her person. The accused was also lying with injuries. P. W. 11 is the Dhobi with whom Lakshamamma is said to have had illicit connection. P. W. 8 is the Resident Medical Officer, Guntur and he produced the accident Register from .....

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the wound present. The other was a small incised oblique wound running outwards and downwards 1" above wound No. 1 It is 11/4" in length and skin deep and is 1" above wound injury No. 1. According to her these injuries might be caused by a knife like M. O. I. ( 4. ) The question in this appeal is whether there is sufficient evidence to convict the accused of the offence with which he has been charged. It may be noted that the prosecution alleged that because the accused saw the d .....

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W. 1 (Ex. P-1) is as follows: The marriage of my grand daughter Mannem Lakshamamma was performed about eight years ago with Mannem Ilamaswamy's son Edukondalu of Nandigama Gudipudi in Sattenpalli Taluk. About 15 days back, the couple came to our house for the marriage of my second granddaughter Channamma. Since about a week, the husband Edakondalu was asking my grand-daughter Lakshamamma to come to his village. My grand-daughter was saying that she has been ill and that they could go after .....

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ere wet with blood. The life of my grand-daughter Mannem Lakshamamma expired. Mannem Edukondalu is in a sinking state. He did this because the said Mannem Lakshmamma refused when he asked her several times to go to his native village of Nandigam Gudipudi. I got written the truth. From this it can be seen that when the incident took place P. W. 1 was not present, but she only came subsequently and found her grand-daughter dead and the accused lying at her side with injuries. NO doubt she says tha .....

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shouting. She says she heard the sounds of stabbing from inside and cry of "oh, sister (elder) I am dying. " Thirupathamma is addressed by the accused's wife as elder sister - Appa. Thirupathamma said that the accused was stabbing Lakshamarnma. Then Thirupathamma began to shout. Lakshmiah P. W, 4, Appa Rao P. W. 5 and Syamla Thirupathi Reddy P. W. 6 came and all of them said "will you open the door or not ? Where can you go ? You have taken her life. " The accused opened .....

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at the inquest. She did not know why the accused killed the deceased. She did not know whether the accused suspected her character. In cross-examination she says that the deceased did not refuse to go to her husband's house but insisted that her husband should live with them. She did not tell the police so. She denies that the brother-in-law of the accused prevailed upon the accused to stay saying that they would look after her character, that it is not they who kept the deceased and her hus .....

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en in the committal Court is denied by her in the Sessions Court. She further states that opposite to her house Muslims and Telagas are living and all of them saw the accused stabbing himself and falling down and except for one daughter of hers, the rest of the people in her house went to the marriage feast. Later on she admits that she did not. say in Ex. P-1 or in statement under Section 164 or in the Committal Court that she heard the deceased crying "oh, sister (elder) I am dying. " .....

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pparao, P, W. 5, knocked at the door. She further admits that the Circle Inspector examined her in the evening at the inquest and it was read over to her and she put her Nisant, S. Lingareddi wrote down what she stated and it was read over to her in Telegu, She further states that Thirupathamma was examined at the inquest and one of the alleged eyewitnesses were examined at the inquest. She again states that at the time of the inquest the brothers were not there, but they were in their houses wh .....

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Court. Her version that she was one of the witnesses who heard the accused stabbing her grand-daughter or that she was an eye-witness of the accused stabbing himself, cannot be believed. She is anxious to protect her granddaughter from any imputation of unchastity, even though she admits it in the committal Court in Ex. D-1 that the accused had complained and that his father-in-law, brothers-in-law and mother-in-law and other promised to see that the deceased did not misbehave and that they can .....

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believed for holding that the accused stabbed the deceased and then stabbed himself, ( 6. ) In so far as the other witnesses are concerned, the first point taken by the learned advocate for the accused is that P. Ws. 3, 4, 5 and 6 were all examined by the police at the time of the inquest and in spite of the fact that an application was made on behalf of the accused on 4-2-1956 for furnishing copies of the same, they were not furnished because the Circle Inspector denied that he took any such s .....

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thumb impressions were taken. They were recorded in vernacular and they were read out in vernacular. Similarly, P. W. 4 says that the S. I. examined him at the inquest. He noted what he stated and it was read out to him and he put his signature. He further states that the statement was read over to him in Telegu. Similarly P. W. 5 says that the police came in the evening and examined him. P. W. 6 also says that he was examined by the police at the inquest. He was examined under Section 164, Cri .....

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script and the Panchayatdars attested them, that is not true. He says he examined P. W. 3 at the inquest. P. W. 13 a Panchayatdar also contradicts P. W. 19's statement when he admits that he deposed in the committal court that the Circle Inspector wrote with pen and did not type, although in the Sessions Court he says that the Circle Inspector typed what the witnesses stated. He again stated that separate statements were taken from the witnesses, but he did not attest the statements though h .....

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ed is totally different to the one by the first informant, P. W. 1, as appears from Ex. P. 1. Even the inquest report Ex. P. 9 shows that it was gathered from the evidence of Pallapu Seethayya, P. W. 9, Ademma P. W. 9's mother P. W. 1 and Pallapu Thirapatireddi, that the accused stabbed the deceased because she refused to go with him and he stabbed himself and both were discovered lying down. The inquest report is in the vernacular and it is not too much to presume upon the evidence and from .....

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ips of the Privy Council in Pulguri Kotavya v. Emperor 1947 Mad WN 217 : AIR 1947 PC 67 (A), observed as follows: The right given to an accused person by Section 162, Criminal P. C. , is a very valuable one and often provides important material for cross-examination of the prosecution witnesses. However slender the material for cross-examination may (sic) to be, it is difficult to guage its possible effect. Minor inconsistencies in his several statements may not embarrass a truthful witness, but .....

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ed the question whether retrial could be ordered on this ground. ( 7. ) There is yet another ground upon which this appeal can be disposed of. The learned advocate contends that the case of the prosecution is one way as stated in Ex. P. 1 and the inquest report, the evidence for the prosecution as spoken to by the witnesses gives a version in a different way, while the conclusions of the Judge are said to be in yet another direction. No doubt the Judge holds that the prosecution has established .....

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e learned Sessions Judge relying upon Rampuri v. Emperor 1937 Mad WN Cr 269 (C), where the case of 63 Ind App 372; (AIR 1936 PC 253 (2) ) (B), was considered as well as Vellamoonji Govindan, In re, 1932 Mad WN Cr 68 (D), held that it is not correct to say that the amendment to Section 164, Criminal P. C. , overrides Section 29 of the Evidence Act and that as a rule when there is a question of admissibility of particular evidence, it is the Evidence Act that one has to look to. The decisions cite .....

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now. She is not living normally with me. She lives with me for sometime and some time with parents. I came to know that her character was not good. They brought me and my wife, one month and fifteen days back, as there was a marriage in my mother-in-law's house. My wife wag living in aduitery. I told my mother-in-law. I chastised my wife. There was no effect. . At about 3 p. m. yesterday, I saw while my wife was in the house with a dhobi called Narayana. I told my mother-in-law and my broth .....

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and Thirnpathamma, thought "this fellow is likely to die and if he dies, we will be accused' Kotamma said, "stab both. " I heard that. I do not know what happened later. I regained consciousness after the police brought so near me. If the whole of the statement is taken into consideration, as indeed it must be, this statement if it is to be taken as a confession is at the most a confession of attempted suicide. Parts of the statements marie here and there cannot be divested fr .....

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the salutary provisions laid down in Section 164 particularly in Sub-section (S) should have been followed as soon as the Magistrate became aware that the statement of the accused was being Inculpatory and was in the nature of a confession. Section 164, as is well known, applies to the recording of the statements or confessions made by a person to a Magistrate in the course of an investigation or under any law for the time being in force or at any time subsequently. Sub-section (3) which was am .....

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llowing effect: I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence arid hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. Section 364 enjoins that (1) whenever the accused is examined by any Magistrate o .....

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d he shall be at liberty to explain or add to his answers. 2. When the whole is made conformable to What he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused. Those provisions came in for consideration by their Lordships of the Pri .....

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es is a different and not less well recognised rule-namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. This doctrine has often been applied to Courts - Taylor v. Taylor (1875) 1 Ch D 426 (15)-and although the Magistrate acting under this group of section is not acting as a Court yet he is a judicial Officer, and both as matter of construction and of good sense there a .....

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st idle. Any Magistrate of any rank could depose to a confession made by an accused so long as it was not induced by a threat or promise, without affirmatively satisfying himself that it was made voluntarily and without showing or reading to the accused any version of what he was supposed to have said, or asking for the confession to be vouched by any signature. The range of Magisterial confessions would be so enlarged by this Process that the provisions of Section 164 would almost invitably be .....

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me clear to (ho Magistrate from the accused's answers to the Magistrate's question that he was incriminating himself. The learned Judge, King, J. , observed at page 1327 that though the learned Sessions Judge was technically right in holding that he was not bound in the circumstances of the case with which he was dealing to follow the judgment of the Privy Council as the facts wore to some extent distinguishable, at the same time it is very difficult to meet the argument that the reasons .....

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ded in 1923 and being a special provision for Magistrate's recording confessions would not apply to confessions elicited by persons in circumstances mentioned in Section 29 and which are otherwise relevant. The provisions of Section 164, Cr. P. C. , therefore would apply to the particular circumstances contemplated by it. For instance where a confession is made to a police officer under Section 25 or a confession made whilst in custody of a police officer under Section 25 cannot be proved ag .....

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said in Re : Vellamoonji Giundan ILR 55 Mad 711 : AIR 1932 Mad 431 (F), milltates against this view. All that was held in that case was that a confession otherwise admissible in evidence is by virtue of Section 29 of the Indian Evidence Act admissible even though the caution prescribed by Section 164 (3), Cr. P. C. , has not been administered and also that Section 164, Cr. P. C. , does not override Section 29 of the Evidence Act. It is no one's case that Section 164 overrides Section 29 of .....

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fe and according to P. W. 17 he arrested the accused on 10-6-1955 at 10 a. m. The statement of the accused was also recorded on 10-6-1965 though the time of recording is not clear, namely whether it is after alleged arrest or before. This cannot, in my view, make much difference because the accused was already taken into the custody and sent to the hospital with the specific allegation that he had stabbed himself which act was an offence. In any case on the evidence Of P. W. 17 itself, it appear .....

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