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Andhra High Court · body

2002 DIGILAW 879 (AP)

PENUPOTHU SRINU v. State Of A. P.

2002-07-16

M.NARAYANA REDDY

body2002
RAMESH MADHAV BAPAT, J. ( 1 ) SOLE accused in Sessions Case No. 277 of 1998 decided by the learned IV Additional sessions Judge, East Godavari at Kakinada is the appellant herein. The accused-appellant was tried by the learned Judge for an offence punishable under Section 302 of the Indian Penal Code. On evidence the learned Judge convicted him for the said offence and sentenced him to suffer imprisonment for life and to pay a fine of rs. 1,000/-, in default, to undergo simple imprisonment for three months. Aggrieved by the aforesaid judgment of conviction and sentence, the accused-appellant filed the present appeal. ( 2 ) THE gravamen of the charge against the accused was that the accused - appellant, pws. 1 and 2 and one Sreenu were working as Kalasies on a cargo boat having registration No. 46, owned by PW5. The deceased was the driver of the said boat. On 9-6-1998 at about 10. 30 a. m. , PWs. l and 2 and the accused were present at the boan. On the previous day all of them agreed to unload the wooden planks belonging to Daveedu Company for Rs. 700/- by way of wages. After unloading, Rs. 500/- was given to the accused and the accused in turn paid Rs. 100/- each to all Kalasies and the balance of Rs. 200/- was to be paid to the deceased. ( 3 ) IT is the further case of prosecution that on the date of incident deceased came on the boat. Then the deceased asked the accused about his money of Rs. 200/ -. On that the accused replied that the Company paid only Rs. 500/- which was adjusted among Kalasies at Rs. 100/- each and an amount of Rs. 200/- was with the Company (sic him ). Then the deceased questioned the accused as to why he had taken his money and whether the accused was the driver of the boat. Then the accused fisted the deceased on his face thrice and kicked him on his stomach. The forehead of the deceased was broken and blood was coming from his nose and mouth and the deceased fell down into the boat. The deceased was taken in a rickshaw to the Government Hospital at kakinada. The police at the Hospital recorded the statement of the deceased and obtained his thumb impression. The forehead of the deceased was broken and blood was coming from his nose and mouth and the deceased fell down into the boat. The deceased was taken in a rickshaw to the Government Hospital at kakinada. The police at the Hospital recorded the statement of the deceased and obtained his thumb impression. PW11 - A. S. I, of i Town Police Station, Kakinada, who was in-charge of the outpost of the Government hospital, Kakinada, recorded the statement of the deceased, which is marked as Ex. P8. Deceased died on the same day by about 5 or 5. 30 p. m. PW2 was examined as direct witnesses to the incident. ( 4 ) PW12 - Head Constable of I Town Police Station, Kakinada, after receiving ex. P8 statement of the deceased, registered a case in Crime No. 73/1998 under Section 325 of the Indian Penal Code. Ex. P9 is the registered FIR. Then he went to the government Hospital and recorded the statement of the deceased - Ex. P10. Thereafter he visited the scene of offence and observed the same in the presence of mediators PWs. 5 and 7 and drafted observation report, which is marked as Ex. P3. The scene of offence was photographed with the help of PW6 under Exs. Pl and P2. He also examined PWs. l, 2, 5, 3 and 4 and others. On the same day at about 6. 30 p. m. , he received Ex. P6 - death intimation, from the Government Hospital and altered the section of law to 302 of the Indian Penal code. The altered FIR is Ex. P11. Subsequently PW13 the Circle Inspector of police took up the investigation and conducted inquest over the dead body of the deceased. The inquest report is Ex. P4. On the same day he arrested the accused. He was produced before the II Additional judicial First Class Magistrate, Kakinada on the next day. The clothes of the deceased were sent for chemical examination, and subsequently he filed the charge-sheet. ( 5 ) THE defence of the accused was of total denial. ( 6 ) IN order to bring the guilt to the home of the accused, prosecution led the evidence of PWs. 1 to 13. The documents produced and proved by them were marked as Exs. Pl to P14. The contradictions were marked as Exs. D1 and D4. ( 5 ) THE defence of the accused was of total denial. ( 6 ) IN order to bring the guilt to the home of the accused, prosecution led the evidence of PWs. 1 to 13. The documents produced and proved by them were marked as Exs. Pl to P14. The contradictions were marked as Exs. D1 and D4. ( 7 ) IN order to prove that the deceased died a homicidal death, prosecution mainly relied upon the evidence of PW13, the Circle inspector of Police, who had conducted inquest over the dead body of the deceased in the presence of PW7. Ex. P4 is the inquest report. ( 8 ) AFTER the inquest was over, the dead body was sent to PW10 for conducting post-mortem examination. PW10 happened to be working as Associate Professor of forensic Medicine, Rangaraya Medical college, Kakinada. On receipt of requisition from the Circle Inspector of Police, he conducted autopsy over the dead body of the deceased and noticed the following external injuries:"1. Contusion of 6 x 4 cm right temporal occipital region of scalp. 2. Sutured wound of 6 cm size approximated with 4 black stitches obliquely present over right forehead region just above the inner aspect of right eyebrow and it is 15 cm to the right of right ear. 3. Abrasion of 5 cm x 2 cm size present over left forehead region 0. 5 cm above the left eyebrow and it is 11 cm to the left of the left ear. 4. Sutured wound of 1. 5 cm size present over upper aspect of ala of the nose. Approximately one stitch is present. 5. Abrasion of 6 x 2 cm size present over tip of the nose. 6. Loss of upper right central incisor and left centre and left lateral incisor teeth with bleeding at their socket, which is fresh red in colour, is present. 7. Contusion of 4 cm x 2 cm mid upper lip region. 8. 2 abrasions of 3 x 2, 3. 5 x 1. 5 cm size present over front of left shoulder region. ( 9 ) ABRASION of 7 x 2 cm size present over back of left shoulder region. " on internal examination he noticed the following internal injuries:"1. (a) On opening external injuries 1,2,3 corresponding contusion of 16 x 6 cm on right temporal parieto occipital region of scalp present below the external injury. ( 9 ) ABRASION of 7 x 2 cm size present over back of left shoulder region. " on internal examination he noticed the following internal injuries:"1. (a) On opening external injuries 1,2,3 corresponding contusion of 16 x 6 cm on right temporal parieto occipital region of scalp present below the external injury. (b) Lacerated injury of 6 cm x 4 cm size surrounded by contusion of 10 x 6 cm size present over right frontal region of the scalp present below the external injury no. 2. (c) Contusion of 6 x 4 cm. size present over left frontal region to scalp present below external injury No. 2. 2. Diffused contusion of brain present below the internal injuries Nos. 1 a), b), c ). 3. Fracture of cervical spine at the level of C4 - C5 vertebrae with contusion of spinal cord at the fractured site. " the Doctor opined that all the injuries were ante mortem in nature and they were sufficient to cause the death in the ordinary course of nature and the death is the cumulative effect of all the external and internal injuries. As per his observation, he issued post-mortem certificate - Ex. P7. Considering the evidence led by the prosecution on the point of homicidal death, we do hold that the deceased did die a homicidal death. ( 10 ) OUT of the witnesses examined, PWs. 1 and 2 are eye-witnesses to the incident. According to their version, on the previous day of the incident they had agreed to unload wooden planks belonging to daveedu Company for Rs. 700/- by way of wages. The wooden planks were unloaded and an amount of Rs. 500/- was handed over to the accused by way of wages. Then the accused gave Rs. 100/- each to them and Rs. 100/- for himself. He retained the remaining Rs. 200/- belonging to the deceased. It further appears from their evidence that on the date of incident the deceased asked the money from the accused. But the accused told him that his money was not given to him. Probably the deceased did not believe the version of the accused, and, therefore, he caught hold of the collar of the accused. Thereupon the accused alleged to have fisted on the face and forehead of the deceased causing fracture to the forehead. But the accused told him that his money was not given to him. Probably the deceased did not believe the version of the accused, and, therefore, he caught hold of the collar of the accused. Thereupon the accused alleged to have fisted on the face and forehead of the deceased causing fracture to the forehead. As a matter of fact, the prosecution witnesses did not depose in court that the shirt of the accused was caught hold by the deceased. But it was so stated in 161 Cr. P. C. statements and that omission has been brought on record. It means, there was a sudden fight between the accused and the deceased on the point of money. ( 11 ) PWS. 3, 4 and 5 are not eyewitnesses, but their evidence shows that there was some galata in the boat and, thereafter, the deceased was removed to Hospital for treatment. PW6 is a photographer. PW7 is the inquest panch. PW8 is the Doctor who had first examined the injured-deceased and issued Ex. XI certificate. PW9 is a doctor who had given intimation regarding the death of the deceased by sending Ex. P6 letter. PW10, as stated earlier, is the doctor who conducted autopsy over the dead body of the deceased. PW11 is the asi of Police, who recorded the statement of the deceased, which is now produced on record as Ex. P8. On the strength of Ex. P8 the offence was registered. In Ex. P8 the deceased had stated that accused had retained rs. 200/- belonging to him and, therefore, the quarrel took place, in which three blows were given by the accused on his face and, therefore, he sustained injuries. Ex. P8 now can be treated as dying declaration, as the deceased is no more. ( 12 ) AS stated earlier, the quarrel took place between the accused and the deceased on the point of distribution of money, in which the deceased had caught hold of the collar of the accused and in order to get rid of the deceased, the accused had fisted three blows on the face of the deceased. Unfortunately the forehead of the deceased was fractured and there was damage to the ear of the deceased and ultimately the deceased died. From this fact, it is evident that there was a quarrel and fight between the accused and the deceased over a petty amount. Unfortunately the forehead of the deceased was fractured and there was damage to the ear of the deceased and ultimately the deceased died. From this fact, it is evident that there was a quarrel and fight between the accused and the deceased over a petty amount. The accused had never intended to kill the deceased as they were working on the same boat. The offence took place all of a sudden. ( 13 ) IT can further be seen from the evidence on record that in the fight accused dealt a blow on the face of the deceased. Unfortunately it resulted in a fracture to the skull of the deceased. The accused was not carrying any instrument. There was no intention on the part of the accused to kill the deceased. Under these circumstances, this Court holds that the accused never intended to cause the death of the deceased or such bodily injury which could lead to death of the deceased. Therefore, we are of the considered view that the order of conviction and sentence recorded against the accused-appellant for the offence punishable under section 302 of the Indian Penal Code is erroneous. We hold, from the evidence on record, that the accused-appellant is liable to be punished for an offence punishable under Section 326 of the Indian penal Code. ( 14 ) ACCORDINGLY the appeal is partly allowed. The accused-appellant is acquitted of the charge punishable under Section 302 of the Indian Penal Code, but is convicted for an offence punishable under Section 326 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- in default, to suffer simple imprisonment for three months.