R. Kantha Rao, J.@mdashThis is an appeal from the judgment, dated 13.05.2003 passed by the II Additional Sessions Judge (Fast Track Court), Ongole in S.C. No. 477 of 1996 whereby and whereunder the sole appellant was convicted for the offence punishable u/s 304(1) IPC and sentenced to undergo rigorous imprisonment for a period of seven years and also to pay a fine of Rs. 1,000/-.
2. Originally the appellant was tried for the charge u/s 302 IPC and at the conclusion of the trial, he was found guilty for the offence u/s 304(1) IPC and was sentenced to punishment as mentioned above. Challenging the said order of conviction and sentence, the appellant preferred this appeal.
3. Shortly stated, the facts leading to filing of the appeal, according to the prosecution are as follows:
The deceased (Nune Ramanamma) is the wife of the appellant (Nune Koteswara Rao). The appellant had first wife and also two children through her. He married the deceased as second wife and subsequent to the said marriage, his first wife expired. The deceased was also earlier married to another person and was separated from him due to some disputes and later married the appellant. The deceased also kept a mistress at Chilakaluripeta, he was habituated to vices and was not looking after the deceased and her children. He sold away the property and spent the entire amount for performing the marriage of the daughter through his first wife and also for the welfare of his son through his first wife. The deceased became sick and was suffering from disease of uterus as well as ulcer in the stomach. The appellant did not provide her any medical treatment. The parents of the deceased admitted her in a private nursing home whereat hysterectomy operation and the operation relating to ulcer were conducted and the entire amount was spent by the parents of the deceased.
4. While the deceased was at her parents'' house, on account of differences with the appellant, the appellant used to go there and insist upon her to come along with him for coolie work for which the deceased was refusing. On that, there used to be some quarrels between the appellant and the deceased. Three days prior to the incident, the appellant came to the house of the parents of the deceased, insisted upon the deceased to come along with him for coolie work and when the deceased did not agree, he left the house threatening the deceased that he would do away with her life. The said incident was witnessed by PWs.1 to 5 and others.
5. While so, on 05.01.1996 at about 3.00 p.m. the deceased was sitting on a cot in the vacant site in front of her parents'' house and was braiding Nune Nagalaxmi. PW-1 (Patra Ashoka) was washing the clothes. PW-2 (Nune Nagaraju) who is the son of the deceased was playing with the daughter of PW-1 in the vicinity of the venue of the offence. The appellant came near the deceased arming with an axe and hacked her on the left side of the neck. The deceased fell down on the ground crying aloud. On hearing her cries, PW-1 who was washing the clothes rushed to the spot immediately and tried to rescue the deceased. In that process, she sustained an injury on the right index finger. Again the appellant hacked the deceased on the left side of the ribs. On receiving the said injuries, the deceased met with instantaneous death. PW-2 the son of the appellant also came in the meanwhile on hearing the cries of his mother and witnessed the incident. Thereafter, on the advise of PW-1, he went to Tangutur Police Station and informed the police that his father hacked his mother to death. PW-3 (Patra Narsaiah) the father of the deceased subsequently came to the house and was informed by Nune Nagalaxmi, the daughter of the deceased about the offence committed by the appellant and he found the deceased lying with injuries.
6. On receiving the information about the occurrence from PW-2, PW-9 (P. Stalin), Head Constable made an entry in the general diary, took PW-2 along with him to the venue of offence, recorded the statement of PW-1 and basing on her statement, he registered a case in Crime No. 2 of 1996 under Sections 302 and 324 IPC. The F.I.R. was marked as Ex.P-6. PW-12 (Kalika Prasada Reddy) is the investigating officer, he took over investigation from PW-9 and after completing the investigation, he filed the charge sheet. PW-7 (Vidyulatha) is the doctor running a private nursing home at Tangutur and she conducted hysterectomy operation on the deceased. PW-8 (Rajendra Prasad) is the doctor who examined PW-1 and issued Ex.P-5 wound certificate, noticing the following injury:
i) A transverse incised injury on palmar aspect of right index finger at proximal inter phalangal joint 1/4" x 1/4" x skin deep. PW-11 (Dr.M.Ramachandra Rao) is the autopsy surgeon who conducted post mortem examination on the deadbody of the deceased and he found the following injuries:
i) 8 1/2 x 2" muscle deep laceration from lower part of left neck to upper part of front of left arm, involving left carotic vessles and fracturing left clavity,
ii) A 4 x 2" muscle deep laceration below left ear extending left side of neck vertically,
iii) 4" x 1 1/2" muscle deep laceration from left side of root of neck to upper part of left back,
iv) 4 1/2" x 3" laceratioin left loin through which lacerated kidney came out,
v) 3 x 4 1/4" scratch on right shoulder,
vi) 4" x 2" bone deep laceration left upper back.
In his opinion, the cause of death of the deceased was due to shock and haemorrhage as a result of receiving multiple anti mortem injuries and the injuries are sufficient in the ordinary course to cause death.
7. The prosecution in order to establish the guilt of the accused examined P.Ws-1 to 12, marked Exs.P-1 to P-12 and M.Os-1 to 8. The learned trial Court on a consideration of oral and documentary evidence on record convicted and sentenced the appellant to punishment as mentioned above.
8. Now the point for determination in this appeal is whether the order of conviction and sentence passed by the learned trial Court requires any interference in this appeal?
9. The main contention urged on behalf of the appellant in this appeal is that the Investigating Officer got recorded the statements of P.Ws-1 to 3 u/s 164 Cr.P.C. through the Magistrate, but the said statements were not furnished to the appellant during the course of the trial, therefore an adverse inference has to be drawn against the case of the prosecution and the appellant is entitled for benefit of doubt. Reliance is placed by the learned Counsel appearing for the appellant on Singam Narsa Goud v. State of A.P. rep., by its Public Prosecutor, High Court of A.P. Hyderabad 2007(1) ALT 231 (D.B)(A.P.) wherein it was laid down that when the statements of the witnesses recorded by the Magistrate u/s 164 Cr.P.C. was not produced and were not furnished to the accused an adverse inference has to be drawn against the prosecution.
10. Now it has to be seen whether the above mentioned preposition is applicable to the facts of the present case. Before examining the issue, it is essential to refer to the following decisions of the Supreme Court.
1.
2. Bharat Petroleum Corporation Ltd v. N.R. Vairamani Vairamani AIR 2004 SC 4778 wherein it was laid down that Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid''s theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes their words are not to be interpreted as statutes.
11. Therefore while adverting to the contention put forth on behalf of the appellant the fact situation in the instant case has to be examined in the light of the factual position emerging in the decision of the Division bench of this Court relied upon by the learned Counsel appearing for the appellant. In the case relied upon by the learned Counsel, the entire case was rested on circumstantial evidence and the Division bench of this Court while deciding the case had given a categorical finding that the circumstantial evidence relied upon by the prosecution is not sufficient to find the accused guilty. Whereas in the instant case there are two eye witnesses to the occurrence and one among them is an injured witness. No circumstance has been placed on record by the defence indicating false implication of the appellant by the prosecution.
12. P.W-1 Patra Asokha had categorically stated in her deposition before the trial Court that on the date of incident at about 3.00 p.m., she was washing the clothes and the deceased was combing the hair of L.W-3 and arranging the plait, she suddenly heard the cries of the deceased and found the appellant hacking the deceased with an axe, the appellant hacked the deceased on the neck twice and when she intervened and tried to rescue the deceased she received injury on the right little finger. Her evidence also discloses that P.W-2 arrived at the venue of offence and witnessed the incident and thereafter on her advice he went to the police station to inform the incident. Whereas P.W-2 (Nune Naga Raju) a child witness who is no other than the son of the deceased stated in his deposition that he was aged eight years on the date of incident which took place at 3.00 p.m. While he was playing with his sister''s daughter, according to him he saw the appellant hacking the deceased with an axe on the neck, on the chest, on the left side of the ribs and thereafter left the venue of offence by leaving the weapon of offence there itself. Except some minor discrepancies, the evidence of these two witnesses remained unshattered on material particulars. Absolutely there was no motive attributed to these witnesses to falsely implicate the appellant in the grave crime.
13. Further a statement recorded u/s 164 Cr.P.C. is not a substantive piece of evidence, it can be used only for the purpose of corroboration or contradiction of the maker of it. The object is to keep the witness in a fix not resiling from his earlier statement. It is also not obligatory on the part of the investigating agency to get the statements of the witnesses recorded u/s 164 Cr.P.C.
14. In Ramesh Singh v. State of A.P. AIR 2004 SC 4545 the Supreme Court held that the fact that the statements of the witnesses were recorded u/s 164 Cr.P.C. would not by itself discredit their evidence before the Court more so when their presence at the time of incident cannot be doubted and there was sufficient consistency as to the role played by the accused in regard to the assault.
15. The Supreme Court further laid down that the totality of circumstances could hardly be ever similar in all cases. Therefore the decision in the earlier case can be treated as precedent only if facts and circumstances in such earlier cited case is in paramateria in all respects with facts and circumstances of case in hand.
16. As pointed out by me earlier, the facts and circumstances of the present case are entirely different from the fact situation emerging from the decision rendered by the Division bench of this Court in Singam Narsa Goud1 relied upon by the appellant. More over in the present case the appellant did not raise the issue of non-furnishing of statements u/s 164 Cr.P.C. in the trial Court. For the first time he raised the issue in this appeal. No question was put to the investigating officer in the course of the cross-examination about non-furnishing of the statements of P.Ws-1 to 3 recorded u/s 164 Cr.P.C. The said point was also not even argued before the learned trial Court. For the first time the appellant seeks to reject the entire testimony of P.Ws-1 and 2 on the mere ground that the statements of the witnesses recorded by the Magistrate u/s 164 Cr.P.c. were not furnished to him in the trial Court. In my view the contention urged is without any substance since no prejudice is caused to the appellant. The testimony of P.Ws-1 and 2 is of highly reliable character and the same cannot be brushed aside on the mere technical ground of non-furnishing of statements of P.Ws-1 to 3 recorded u/s 164 Cr.P.C. in the trial Court.
17. In the instant case the presence of P.Ws-1 and 2, the eyewitnesses at the venue of offence is considered to be quite normal and they are natural witnesses. No serious motive has been attributed to both the witnesses as to why they resorted to falsely implicate the appellant leaving the real culprit. The veracity of their testimony has to be tested basing on the probability factor irrespective of the fact whether their statements recorded u/s 164 Cr.P.C. were furnished to the appellant or not. In my considered view the fact of non-furnishing of statements of eyewitnesses recorded u/s 164 Cr.P.C. to the appellant alone is not capable of demolishing the testimony of eyewitnesses before the trial Court if it is otherwise credible and trustworthy. The trial Court, therefore, did not commit any mistake in placing reliance on the evidence of P.Ws-1 and 2 to base the conviction of the appellant. The finding of the learned trial Court does not call for any interference in this appeal.
18. For the foregoing reasons, the order of conviction and sentence passed by the trial Court against the appellant is confirmed and the appeal is dismissed.
