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2019 DIGILAW 156 (AP)

Killo Donnu v. State of A. P.

2019-07-27

J.UMA DEVI, T.RAJANI

body2019
JUDGMENT : J. Uma Devi, J. 1. Assailing the judgment and conviction and sentence passed in S.C. No. 97 of 2013, on the file of VII Additional Sessions Judge (Fast Track Court), Visakhapatnam, whereby the appellant was sentenced to suffer imprisonment for life and to pay fine of Rs. 500/- in default to suffer simple imprisonment for three months, the present appeal is filed by him. 2. The allegations made against the accused by the prosecution were that he killed the deceased Killo Gennu, to whom P.W. 1 gave birth out of her wedlock with her former husband, before she contacted second marriage with him. The appellant though lost the right hand up to forearm, he was capable of attending to the work of cutting of fire wood and breaking the stones with his left hand. He was a drunkard and was habituated to take money forcibly from P.W. 1, whom he married after the death of her former husband to meet his bad vices such as drinking etc. P.W. 1 was blessed with two male children after her marriage with the accused. Though the deceased was staying with his maternal grandfather, he was visiting P.W. 1 frequently. About three months prior to the death of the deceased, P.W. 1 along with the deceased went to Visakhapatnam to eke out their livelihood by doing collie work. During that time, the accused stayed at Attimala Village. On 12.2.2012, the accused went to Visakhapatnam and brought on P.W. 1 and deceased to his house on 13.2.2012. On 14.2.2012 at 5.00 p.m., when the accused demanded P.W. 1 to give money which she earned by doing coolie work, she said that she spent all the amounts she earned through coolie work for her needs; on that there was altercation between her and the accused. During the time of altercation accused enraged and gave a blow on her with reverse portion of M.O.1 axe, but she could somehow escaped from the said blow and that the blow fell on the deceased who was besides her and thus he died on the spot. After the said incident accused left the scene of offence leaving the axe there itself. Based on the complaint given by P.W. 1, a case in Crime No. 10 of 2012 was registered under Section 302 IPC against the accused and was investigated into. 3. After the said incident accused left the scene of offence leaving the axe there itself. Based on the complaint given by P.W. 1, a case in Crime No. 10 of 2012 was registered under Section 302 IPC against the accused and was investigated into. 3. The Sub Inspector of Police, Ananthagiri Police Station, to whom P.W. 1 approached along with V.R.O., Konapuram Panchayat (P.W. 4), to give a complaint, after registration of the case based on the written complaint she submitted, issued the express Ex. P.5 F.I.R. and sent a copy of Ex. P.1 complaint and Ex. P.5 to the learned Magistrate and gave information about the registration of the case to the Circle Inspector of Police, Araku. Immediately after getting the information about the registration of the case, the C.I. of Police P.W. 6 rushed the scene of offence and posted a constable to safeguard the scene of offence. Upon securing the presence of the P.W. 4 Korra Jagannadham, who scribed the complaint and another panch witness L.W. 10, P.W. 6 observed the scene of offence and prepared its rough sketch under Ex. P.6 and seized the blood stained earth from the scene of offence. He also seized the crime weapon M.O.4 under the cover of Ex. P.2, observation panchanama, of the scene of offence in the presence of P.W. 4 and others and got the scene of offence photographed with his digital camera. P.W. 6 held inquest over the dead body of the deceased and found one injury on the rear portion of the left side of the head of the deceased swelling over the jaw. He recorded the statements of P.Ws. 1, 2, L.W. 2 J. Ramu, L.W. 6 B. Rama Chandar and S. Appanna L.W. 7 and also the statement of P.W. 4. During the course of inquest held over the dead body of the deceased. After completion of the inquest over the dead body of the deceased, he forwarded the dead body to the Medical Officer for the purpose of autopsy. The material objects seized from the scene of offence were sent to F.S.L. and the accused was arrested by the C.I. of Police, 16.2.2012. After receipt of original copy of the postmortem report and the report from the Forensic Science Laboratory, on the material objects sent for examination, charge sheet was filed by him. 4. The material objects seized from the scene of offence were sent to F.S.L. and the accused was arrested by the C.I. of Police, 16.2.2012. After receipt of original copy of the postmortem report and the report from the Forensic Science Laboratory, on the material objects sent for examination, charge sheet was filed by him. 4. The learned Judicial Magistrate of the First Class, Araku Valle, after complying with all the required formalities, committed the case to Court of Sessions Division at Visakhapatnam and the Court of Sessions Division made over the case to the learned VII Additional District and Sessions Judge for disposal according to law. 5. The prosecution to establish the guilt of the accused that he killed the son of P.W. 1 by giving a blow on the rare portion of his head with reverse' portion of M.O.1 axe, examined 7 witnesses and marked Exs. P.1 to P.14 and M.Os. 1 to 7. The learned VII Additional District and Sessions Judge, Visakhapatnam on appreciation of the evidence of the prosecution witnesses and the material placed before her by the prosecution, found that the prosecution could bring home the guilt of the accused for the offence under Section 302 IPC and accordingly sentenced him to suffer imprisonment for life and to pay fine of Rs. 500/- and in default simple imprisonment for three months. 6. Being aggrieved by the judgment so passed, the appellant is before this Court by way of preferring this appeal. 7. The contention of the appellant is that P.W. 1 gave two versions in her evidence. As per one of her versions, the accused had no intention to kill the deceased and that the death of the deceased took place accidentally. The discrepancies in the evidence of P.W. 1 itself were enough to hold that the prosecution failed to prove its case. Considering the distinct versions made by the P.W. 1, the Court below ought to have given the benefit of doubt to the" accused. 8. In the light of the above contentions raised on behalf of the accused, the only point which needs to be answered is, whether the prosecution has placed sufficient evidence for establishing the guilt of the accused under Section 302 IPC and whether the evidence so placed is convincing and inspiring the confidence of the Court to sustain the conviction? 9. In the light of the above contentions raised on behalf of the accused, the only point which needs to be answered is, whether the prosecution has placed sufficient evidence for establishing the guilt of the accused under Section 302 IPC and whether the evidence so placed is convincing and inspiring the confidence of the Court to sustain the conviction? 9. We have gone through the judgment of conviction, which is impugned in the present appeal and also the evidence on record. 10. As per the prosecution story, the deceased, Killo Gennu, born to P.W. 1 out of her marital relationship with her former husband who died subsequently. After the death of her former husband, she married the accused and was blessed with two male children. Though the deceased was staying with his grandfather after the P.W. 1 married the accused, he was coming to her frequently. Three months prior to his death, P.W. 1 along with him went to Visakhapatnam to eke out her livelihood by doing coolie work. Just one day prior to the death of the deceased, the deceased and P.W. 1 were brought to the house of the accused by himself on the evening of 14.2.2012, on which day the death of the deceased took place there was an altercation between the accused and the P.W. 1 over the issue of money which she earned by doing coolie work at Visakhapatnam. When she replied that she spent all the amounts she earned through coolie to fulfill her needs, the accused enraged and picked up an axe from the house and tried to beat her on reverse portion of her head with rare portion of axe M.O.1, but the blow, which he gave fell on the rare side of the head of the deceased accidentally and thereby he died on the spot. 11. The above version of the prosecution itself would indicate that the accused had no intention to kill P.W. 1 or the deceased; when he gave blow on rare side portion of the head of the P.W. 1, with reverse side of axe which he picked up from his house during the course of altercations that took place between him and P.W. 1, the blow he gave accidentally fell on the deceased and due to which he died on the spot. The very framing of charge under Section 302 IPC by the Court below appeared to be wrong and thus the Court below ought to have framed the charge under Section 301 IPC. The incident as narrated by the prosecution itself occurred when there was a sudden quarrel between the P.W. 1 and the accused over the issue of money she earned during her stay at Visakhapatnam. The above version of the prosecution was also supported by P.W. 2 Buridi Jagannadham neighbour of the accused. It is testified by P.W. 2 that on Tuesday, during evening hours at about 5.00 p.m., he heard huge cries of P.W. 1 and immediately he rushed to her house and found the accused demanding P.W. 1 to give to him, and gave a blow on P.W. 1 with an axe. The Civil Assistant Surgeon to whom the body was forwarded for conducting postmortem examination found a lacerated injury of size 8 x 2 c.m., over the right occipito parietal area. The manner in which blow was given with reverse portion of an axe would itself indicate that there was absence of mens rea on the part of the accused to kill P.W. 1. One injury was found on right parietal area of the deceased and it was due to the accidental blow fell on him when the accused tried to give such blow on P.W. 1 with whom he altercated just prior to the incident over the issue of money she earned through coolie work during her stay at Visakhapatnam along with the deceased. 12. The sudden quarrel that ensued between P.W. 1 and the accused over the issue of money receiving by P.W. 1 provoked the accused to give a blow on her with rear portion of the axe, which he picked up from his house but such blow was received by the deceased, who was besides her by that time and thus, he died on the spot. 13. The evidence of P.Ws. 1 and 2 itself would indicate that there was an exchange of words between P.W. 1 and the accused just prior to the incident and during that time the accused enraged and gave a blow with the reverse portion of the axe picked by him from the house that against on any of the part of her body, and it, accidentally fell on the deceased who was present besides her. 14. 14. During the course of post-mortem examination one injury was noticed and all these facts born by record themselves were enough to hold that the accused had no intention to kill the P.W. 1 or the deceased and that the blow given with the reverse portion of the axe was not aimed on any part of the body of P.W. 1. 15. At this juncture, it is relevant to state briefly the observations made by the Apex Court in Ram Prakash Singh v. State of Bihar, (1989) 9 SCC 497. The text in this case law in nutshell are that "As a result of some misunderstanding between them their relations had become strained. Deceased Ramswarath Singh used to tell others that Ram Prakash Singh owed some money to him and was not paying the same. On the day of the incident, that is on 29-6-1976, accused Ram Prakash Singh met Ramswarath Singh near the choraha of Mauza, Tilak Nagar. Ram Prakash Singh enquired from Ramswarath Singh as to why he was unnecessarily maligning him. That led to a hot exchange of words between them. During this altercation Ram Prakash Singh took out a knife and gave one blow to Ramswarath Singh. The arguments advanced by the learned counsel for the appellant were that accused Ram Prakash and deceased Ramswarath had met accidentally and in a sudden quarrel which had taken place between them, both the deceased and the accused had become very angry and during the altercation that followed, in the heat of passion, accused Ram Prakash had given one knife blow. He had not tried to give a second blow even though Ramswarath had not fallen down. He further submitted that the doctor, who was examined in this case, has also not stated that the injury which was caused was sufficient in the ordinary course of nature to cause death. He, therefore, submitted that the conviction of the appellant under Section 302 IPC is not proper and illegal. The Court noticed considerable substance in the contention raised by the learned counsel for the appellant and made the following observations. The fact that the accused and the deceased were friends and were working together in the credit investment bank opened by Ram Prakash Singh is not in dispute. The fact that a hot exchange of words took place is also deposed by all the three eyewitnesses. The fact that the accused and the deceased were friends and were working together in the credit investment bank opened by Ram Prakash Singh is not in dispute. The fact that a hot exchange of words took place is also deposed by all the three eyewitnesses. The evidence further shows that only one knife blow was given by the appellant without aiming it at any particular part of Ramswarath's body. The doctor, who had performed the post-mortem examination, has not stated that the injury, which was caused to the deceased, was sufficient in the ordinary course of nature to cause death. But for the sudden quarrel on that day there was no other reason for the appellant to cause an injury to his friend. Therefore, in view of the facts and circumstances of this case it will have to be held that his conviction under Section 302 IPC is not proper and that he should have been convicted only under Section 304 II IPC" 16. In this case when there was a sudden quarrel between the accused and P.W. 1 over the issue of money, the accused tried to assault her by giving blow with reverse side of axe without aiming on a particular part of her body, such blow fell accidentally on the deceased who was with her, and thus died on the spot. Due to non establishment of mens rea on the part of the accused to kill the P.W. 1 or the deceased by the prosecution, and the injury caused to the deceased due to a single blow said to be given to P.W. 1 which accidentally fell on him and the then injury resulted the death, we opine that his conviction under Section 302 IPC is not proper and the same can be converted to Section 304 part II IPC. As the appellant remained in jail, for substantial period, we are of the view that the ends of justice will meet if he sentenced to imprisonment for a period of which he has already undergone. 17. We accordingly allow the appeal in part by converting the conviction and sentence of the appellant from Section 302 IPC to Section 304II of IPC. 18. 17. We accordingly allow the appeal in part by converting the conviction and sentence of the appellant from Section 302 IPC to Section 304II of IPC. 18. In the result, the conviction and sentence imposed by the trial Court by judgment, dated 29.01.2014, in Sessions Case No. 97 of 2013, passed by the Court of VII Additional Sessions Judge, (Fast Track Court), Visakhapatnam, for the offence under Section 302 IPC, is hereby set aside. 19. However, the appellant is found guilty for the offence under Section 304 Part II IPC and sentenced to imprisonment, which he has already undergone during investigation, trial and after conviction. The appellant shall be set at liberty forthwith, if he is not required in any case. The fine amount, if any, paid by the appellant shall be refunded to him. 20. As a sequel, pending miscellaneous petitions, if any, shall stand closed.