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2009 DIGILAW 490 (AP)

Golluri Komati v. State of A. P.

2009-07-23

D.S.R.VERMA, R.KANTHA RAO

body2009
JUDGMENT (Per D.S.R. Varma, J.) Heard learned counsel appearing for the appellant and the learned Public Prosecutor, appearing for the respondent-State. 2. Appellant is the sole accused in the Sessions Case. 3. This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, by the sole accused, is directed against the judgment, dated 6-12-2006, passed by the VIII Additional District and Sessions Judge (Fast Track Court), Visakhapatnam, in Sessions Case NO.1 06 of 2006, convicting the appellant/accused for the offence punishable under Section 302 of the Indian Penal Code (for brevity "IPC") and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 2001-, in default to suffer simple imprisonment for a period of one month. 4. The case of the prosecution, in brief, is that, the accused is the son and one Badnaik Nageswara Rao (hereinafter referred to as "the deceased")is the grand-son (daughter's son) of P.W. 1; that the accused wanted to give his eldest daughter by name Sumithra, in marriage to the deceased for which the deceased did not agree; that, on the fateful day, the accused went to the house of the deceased and raised the topic of the marriage of his daughter with the deceased, for which the deceased did not agree as he was of the opinion that the accused was not a person of good character, upon which the accused grew wild and beat the deceased with a stone on the backside of his head, due to which the deceased had fell down and died instantly; that, at that point of time, P.W. 1 was present; that, on the next day, P.W. 1 gave a report, under Ex. P-1, to the police, Arukuvalley and that after completion of all the formalities, police laid the charge sheet. 5. In order to bring home the guilt of accused, the prosecution examined P.Ws. 1 to 11 and got marked Exs. P-1 to P-21, in addition to M.Os. 1 to 4, on its behalf. On behalf of the defence, no oral or documentary evidence is adduced. 6. The Court below, having considered the entire material, including the evidence, both oral and documentary, available on record, found the accused guilty of the offence punishable under Section 302 IPC and convicted and sentenced him, as stated above. Aggrieved by the same, the accused has preferred the present Criminal Appeal. 7. 6. The Court below, having considered the entire material, including the evidence, both oral and documentary, available on record, found the accused guilty of the offence punishable under Section 302 IPC and convicted and sentenced him, as stated above. Aggrieved by the same, the accused has preferred the present Criminal Appeal. 7. Now, the point that arises for consideration, in this Criminal Appeal, is - as to whether the Court below has rightly appreciated the material on record in arriving at the conclusion that the accused was responsible for the death of the deceased and liable for punishment for the offence under Section 302 IPC? 8. Except the evidence of P.Ws. 1, 2 and 8 and the report, under Ex. P-1, the other' evidence on record, either oral or documentary, is not very relevant. Hence, the same is not being referred to for the purpose of this Criminal Appeal. 9. P. W. 1, who is no other than the mother of the accused, stated that the deceased was her grand-son (Daughter's son); that the accused is herson; that the accused has four daughters and two sons; that the accused wanted to give in marriage his eldest daughter to the deceased, to which the deceased did not agree; that having got enraged the outright rejection by the deceased, the accused gave a blow with a stone on the backside of the head ofthe deceased, due to which he fell down and died on the spot. She further asserted that she affixed her thumb impression on the report, under Ex. P-1, given to the police and it was she who got the same drafted. 10. Except the above evidence, nothing could be elicited from the cross-examination of P.W. 1 to demolish her testimony, on all material aspects. 11. P.W. 2 is a neighbour of P.W. 1. He spoke in the same manner as was spoken to by P.W. 1. 12. The only thing that was found by the Court below was that P.W. 1 did not state, in her evidence, about the presence of P.W. 2, nor it was stated at the earliest point of time i.e., in the report, under Ex. P-1. 13. Therefore, it is the contention of the learned counsel for the accused that the presence of P.W. 2 has to be doubted. 14. P-1. 13. Therefore, it is the contention of the learned counsel for the accused that the presence of P.W. 2 has to be doubted. 14. In this connection, we are of the view that it is not necessary always that the report, under Ex. P-1, shall contain every details, nor it is necessary for P.W. 1 to state the presence of all other persons, particularly when the witness spoke on all the material aspects. 15. What is material in the present context is - whether P.W. 1 was present at the time when the accused requested the deceased to marry his eldest daughter and when the said request was refused, whether the accused beat the deceased with a stone or not? 16. Further, it is also to be seen that P.W. 2 is not a relative to either side. He is totally an independent witness and when he spoke about his presence, there is no reason to discard his evidence. 17. Furthermore, it is significant to note that on the report, under Ex. P-1, P.W. 2 signed as a witness and it is to be further seen that in Ex. P-1 there is a reference of the presence of P.W. 2 also. 18. Therefore, merely because P.W. 1 did not mention about the presence of P.W. 2, at the time of offence, the evidentiary value of P.W. 2 cannot be brushed aside. The Court below in that regard had committed an error. 19. Therefore, the testimony of P.W. 2, on all material aspects, corroborates the evidence of P.W. 1 and when there is absolutely coherence between the testimony of P .Ws. 1 and 2 and when their evidence s corroborated with the contests of Ex. P-1, there cannot be any hesitation to connect the accused with the offence, with which he was charged. 20. Further, the Doctor, P.W. 8, who conducted postmortem examination on the dead body of the deceased, found the following injuries: 1. Lacerated injury of 1" x W' at the left perito temporal region with contused edges caused due to built and rough object and ante mortem in nature; 2. Abrasion of 1 x l' over the lateral aspect of left eye brows; 3. Contusion of 2" x 2" over the back of the right chest wall; 4. Abrasion of W' x Y2" to the medial malleoulus of the left ankle; 5. Abrasion of 1 x l' over the lateral aspect of left eye brows; 3. Contusion of 2" x 2" over the back of the right chest wall; 4. Abrasion of W' x Y2" to the medial malleoulus of the left ankle; 5. Abrasion over the right knee cap of 1" x 1", all are ante mortem in nature and caused due to rough and blunt objects. 21. In this context, the contention of the learned counsel appearing for the accused is that there was only one injury, as spoken to by P.Ws. 1 and 2, and hence there cannot be 5 injuries on the head of the deceased. 22. But, it is to be seen that there are 3 abrasions and those abrasions can be caused because of scuffle. 23. In fact, the evidence of P.Ws. 1 is as under: "Then the accused found fault with Nageswararao and both of them had an altercation and pushed each other. The accused picked up a stone and hit Nageswararao on the backside of the head. The Nageswararao fell down and died on the spot. 24. From the above, it could be seen that there was a scuffle between the deceased and the accused before the deceased received the injuries. 25. Broadly speaking, the incident had happened because of the rejection by the deceased to marry the eldest daughter of the accused. There was some scuffle and, in that scuffle, the accused suddenly provocated with the rejection on the request of the deceased and, during the altercation, both the of them pushed each other and the accused beat the deceased on his head with a stone. Therefore, it need not necessarily be only one injury that was caused. There was possibility even as per the evidence of P. W. 1 that the deceased had received more injuries because of the scuffle. 26. Further, the cause of death, as spoken to by the Doctor, P.W. 8, in the post-mortem report, under Ex. P-9, was cerebral hemorrhage due to fracture of the skull. 27. Therefore, the evidence on record, as discussed above, is sufficient to record a finding that the accused was responsible for the death of the deceased. 28. The next question that arises for consideration is - as to whether the accused had committed culpable homicide, not amounting to murder? 29. P-9, was cerebral hemorrhage due to fracture of the skull. 27. Therefore, the evidence on record, as discussed above, is sufficient to record a finding that the accused was responsible for the death of the deceased. 28. The next question that arises for consideration is - as to whether the accused had committed culpable homicide, not amounting to murder? 29. In this regard, it is to be seen that there is absolutely no premeditation or preemptive on the part of the accused to kill the deceased. He went to the house of the deceased, requested him to marry his eldest daughter, upon which the deceased refused the said request on the ground that the accused was a man of bad character, which, in normal course, causes provocation to any ordinary person. Sometimes, the same may be in an aggravating manner, depending upon the circumstances. 30. Therefore, as deposed by P .Ws. 1 and 2, the main reason for the accused to attack the deceased was the rejection by the deceased to marry his eldest daughter and also on account of further allegation that the accused was a bad person. This, in normal course, as already pointed out, is sufficient to arose some amount of emotion and anger, which otherwise called as a provocation, and the said provocation was not necessarily premeditated, inasmuch as, there was no preparation at all. 31. The very reason for the accused to go to the deceased was to request him to marry his eldest daughter and hence the question of going with a preparation to kill him does not arise. Therefore, the circumstances are quite obvious that the accused got provocated suddenly because of the rejection to marry his eldest daughter and the reason for such rejection was the accused is a bad person. 32. Having regard to the facts and circumstances, we are of the view that the accused cannot be held to be liable for punishment the offence under Section 300 I.P.C., but only liable for the offence committed under Section 304 Part III PC inasmuch as, his act of causing injury as is likely to cause death, or with the knowledge that it was likely to cause death of the deceased, but, as already pointed out, commits the offence of, culpable homicide. 33. 33. Accordingly and for the foregoing, we find that the Court below was in error insofar as appreciating the evidence on record in recording the conviction for the offence punishable under Section 302 IPC but only liable for the offence committed under Section 304 Part IIIPC., inasmuch as, his act of causing injury as likely to cause death, or with the knowledge that it was likely to cause death of the deceased, but, as already pointed out, commits that offence of culpable homicide. 33. Accordingly and for the foregoing, we find that the Court below was in error insofar as appreciating the evidence on record in recording the conviction for the offence punishable under Section 302 I PC instead of under Section 304 Part IIIPC. Accordingly, the conviction against the accused is modified from the offence under Section 302 IPC to that of Section 304 Part II IPC and consequently the sentence is also liable to be modified from rigorous imprisonment for life to that of rigorous imprisonment for five years. 34. In the result, the Criminal Appeal is allowed in part, setting aside the judgment, dated 6-12-2006, passed by the VIII Additional Districtand Sessions Judge (Fast Track Court), Visakhapatnam, in Sessions Case No.1 06 of 2006, convicting the appellant/accused for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 200/-, in default to suffer simple imprisonment for a period of one month, and instead the conviction is modified to that of Section 304 Part II IPC and the appellant/ accused is sentenced to suffer rigorous imprisonment for five years, after giving set off for the period already undergone by him.