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2005 DIGILAW 989 (AP)

Bobilla Babu Rao v. State Of A. P.

2005-10-24

P.LAKSHMANA REDDY

body2005
( 1 ) THIS revision is filed against the order, dated 15-11-2003, passed in crl. . M. P. No. 201 of 2003 in S. C. No. 308 of 2003 on the file of the learned I Additional assistant Sessions Judge, Warangal. ( 2 ) THE relevant facts, in brief, are as follows :- the revision petitioner herein was the sub-Inspector of Police, Pasra Police station during the period from 1-11-1996 to 21-12-1996. The Inspector of police filed a charge-sheet against the petitioner herein alleging that during the period from 9-12-1996 to 11-12-1996, he unlawfully detained one Bhukya Ramesh (hereinafter referred to as the deceased ) on the ground that he committed theft of self-motor of a tractor belonging to one Bhukya Sammaiah and he caused injuries to the deceased on his buttocks, back and on hands with a view to extract confession from the deceased. Later, on 11-12-1996 when the said Sammaiah gave another report, withdrawing his earlier report regarding the theft of the self motor, the petitioner released the deceased from the unlawful custody and thereafter on 18-12-1996, the deceased was taken to the Government Community Hospital, eturunagaram where he was treated as out-patient and on 20-12-1996 when his condition became very bad, he was admitted as in-patient and thereafter on 21-12-1996, he was shifted to Jaya Nursing Home, hanumakonda, but his condition did not improve, therefore, he was shifted to n. I. M. S. hospital and that on 28-12-1996 the deceased died, and that the doctors, who conducted autopsy, opined that the deceased was suffering from Ulcers in the intestines due to which his stomach and liver enlarged and that the injuries accelerated his death and therefore, the revision petitioner/accused is liable for punishment for the offence punishable under sections 342, 330, 324, 323 and 304 IPC. ( 3 ) ON the said allegation, the learned magistrate before whom the charge-sheet was filed took the case on file for the said offence and after observing all formalities committed the case to the Court of Session, Sessions Division, Warangal by passing the committal order on the basis of which, the learned Sessions Judge took the case on file as Sessions Case and made over the same to the learned I Additional senior Civil Judge, Warangal for the purpose of trial. During the course of hearing of charges, the revision petitioner/accused filed an application seeking discharge of all the charges on the ground that there is no material to frame any of the charges levelled against him and that he is entitled for discharge. But the State opposed the said application. The learned I Additional Sessions judge, after hearing the matter dismissed the petition filed for discharge. Aggrieved by the said dismissal, the present revision petition is filed contending that the learned assistant Sessions Judge ought to have seen that the offence under Section 304 IPC does not at all attract and that according to the medical opinion, the injuries on the deceased are not fatal and they are only simple injuries and that the death of the deceased occurred due to natural cause. He further contended that the learned assistant Sessions Judge failed to appreciate and consider the crucial aspect of sanction to prosecute a public servant and the learned judge failed to observe that once the case is closed, it cannot be reopened and that the order of the learned Assistant Sessions judge, directing to frame charges under sections 342, 330, 324, 323 and 304 IPC is bad in law and is liable to be set aside. ( 4 ) DURING the course of hearing, the learned Counsel for the revision petitioner/accused invited the attention of this Court to the post-mortem certificate, the final opinion of the doctor, who conducted the post-mortem, and also the statements of Dr. S. Hariprasad (L. W. 29) and Dr. Hemantharao (L. W. 30) made under Section 161 Cr. P. C. , wherein they have stated that the death of the deceased occurred due to natural cause and that the deceased was a chronic patient and ulcers were found in his intestines, due to which, his stomach and liver were enlarged and that even in the absence of the injuries the deceased would have died and that the injuries only accelerated the early death in combination of the disease. ( 5 ) LEARNED Counsel for the petitioner/accused, after referring to the medical evidence, submitted that there is no nexus between the injuries and the death of the deceased and that at any rate, it does not attract culpable homicide as provided under section 299 IPC and that there is no material to show that the revision petitioner/accused had neither intention to cause death nor caused injuries with an intention to cause such bodily injuries as is likely to cause death or the revision petitioner has knowledge that he is likely by such act to cause death and therefore, Section 304 IPC does not at all attract. Learned Counsel fairly conceded that so far as the other offences are concerned, the revision petitioner has to face trial before the magistrate and that the matter is to be transferred to the Chief Judicial Magistrate for the purpose of trial in respect of the remaining offences other than the offence punishable under Section 304 IPC. On the other hand, the learned Additional Public prosecutor supported the dismissal order. ( 6 ) THE points that arise for determination in this criminal revision petition are : 1. Whether the order of the learned assistant Sessions Judge directing to frame charges against the accused under Sections 342, 330, 324, 323 and 304 IPC is sustainable in law ? 2. Whether the revision petitioner is entitled for discharge and if so, in respect of what offences ? ( 7 ) POINT Nos. l and 2 :-So far as the offences punishable under Sections 342, 324 and 323 IPC are concerned, there is enough material filed by the prosecution and in fact, the learned Counsel also fairly conceded in this regard and therefore, I have no hesitation to hold that the order to the extent of framing charges under Sections 342, 330, 324 and 323 IPC are sustainable in law. But, so far as the charge under section 304 IPC is concerned, I find considerable force in the contention raised on behalf of the revision petitioner/accused. But, so far as the charge under section 304 IPC is concerned, I find considerable force in the contention raised on behalf of the revision petitioner/accused. ( 8 ) SECTION 304 IPC deals with punishments of culpable homicide not amounting to murder and culpable homicide has been defined under Section 299 IPC, which reads as under : "whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death commits the offence of culpable homicide. " here in the instant case, it is the admitted case of the prosecution that the petitioner/accused caused injuries to the deceased between 9-12-1996 and 11-12-1996 in order to extract the truth regarding the theft of self-motor of a tractor belonging to one bhukya Sammaiah. Therefore, the question of causing injuries with an intention to cause the death of the deceased does not at all arise. Further, as seen from the following injuries found on the deceased : 1. One vertically placed parallel abrasion 13 cms present at the outer side of right arm middle part. 2. On the back of the trunk multiple criss cross abrasions measuring 10 cm X 9 CM skin are present 6 CM below the inferior angle of scapula 4 cms lateral to the mid spinal line with contused under lying sub cuteneous tissues. 3. Both sides buttocks shows blackening of the skin the length measuring 26 cms, the height on the right side buttocks 26 CMs and left side of buttock height of 16 CMs the sub cuteneous tissues showed presence of bruises, the right side buttock muscles on the outer side are blackened. 4. One parallel abrasion present on the right side buttocks near the seerd bone of 10 CMs long with intervening normal skin of peleness. none of those injuries are caused on the vital parts of the body. The injuries were only abrasions on the back of the trunk and on the back of the buttocks. Further, as seen from the medical certificates, and the statements of the doctors under Section 161 cr. none of those injuries are caused on the vital parts of the body. The injuries were only abrasions on the back of the trunk and on the back of the buttocks. Further, as seen from the medical certificates, and the statements of the doctors under Section 161 cr. P. C. , the deceased was a chronic patient and ulcers were found in his intestines due to which his stomach and liver enlarged and that the enlargement of liver deteriorates the life span, which is sufficient to cause death and even in the absence of the injuries, the death would have occurred within a few months. The doctors stated that the injuries accelerated the death in combination of the disease. ( 9 ) THERE is absolutely, no material to show that the revision petitioner/accused had knowledge about the ailments of the deceased. Had he had knowledge about the ailments of the deceased and in spite of such knowledge had he caused such injuries, which accelerated the death of the deceased, then it can be said that the accused committed culpable homicide. But in the instant case, it is not the case of the prosecution that the accused had knowledge about the disease of the deceased and in spite of such knowledge, he caused injuries to the deceased. In the absence of such material, even if the entire evidence gathered by the prosecution is believed as true, it cannot be said that it attracts the offence of culpable homicide. Hence, in my considered opinion, the learned Assistant Sessions judge grossly erred in deciding to frame the charge under Section 304 IPC and to try the same as Sessions Case. Hence, to the extent of the charge under Section 304 ipc, the revision petition is to be allowed and a direction is to be given to frame charges under Sections 342, 330, 324 and 323 IPC against the revision petitioner/ accused and to transfer the same to the chief Judicial Magistrate for the purpose of trial under Section 228 Cr. P. C. These points are answered accordingly. P. C. These points are answered accordingly. ( 10 ) IN the result, the revision petition is partly allowed, setting aside the charge framed under Section 304 IPC and directing the learned Assistant Sessions Judge, warangal to discharge the accused in respect of the offence punishable under Section 304 ipc and to frame charge for the offences punishable under Sections 342, 330, 324 and 323 IPC and transfer the same to the chief Judicial Magistrate for the purpose of trial under Section 228 Cr. P. C.