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2022 DIGILAW 1500 (AP)

Nellore Brahmaiah v. State of A. P.

2022-12-22

B.V.L.N.CHAKRAVARTHI, C.PRAVEEN KUMAR

body2022
JUDGMENT C.PRAVEEN KUMAR, J. - Heard Ms.Aishwarya Nagula, learned counsel representing Sri H. Prahalada Reddy, learned counsel for the appellant/accused and learned Additional Public Prosecutor for the respondent/State. 2. The present appeal came to be filed challenging the conviction and sentence imposed by Trial Court in Sessions Case No.189 of 2013 on the file of VI Additional District and Sessions Judge, S.P.S.R. Nellore District, wherein the sole accused was found guilty for the offence punishable under Sec. 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced to undergo imprisonment for 'Life' and to pay fine of Rs.500.00, in default of payment of fine, to suffer simple imprisonment for a period of 15 days. 3. The substance of the charge against the accused, is that, on 30/10/2012 at about 8.30 a.m., at the house of P.W.10, Sangam Mandal, S.P.S.R. Nellore District, the accused hacked one Nellore Veeraiah (hereinafter referred to as 'deceased') with an axe on the back and left side of the head, leading to instantaneous death. 4. The facts as culled out from the evidence of prosecution witnesses, are as under: (i) The accused and material prosecution witnesses are residents of Anasuyanagar village. The deceased was also resident of the same village. P.W.4 had three sons, who are accused, deceased and L.W.7/Nellore Prasad. P.W.1 is wife, P.W.2, P.W.3 and P.W.4 are sons of the deceased. The deceased was the junior paternal uncle of P.W.5, while P.W.6 is the cousin of P.W.7. (ii) It is said that P.W.4 has partitioned the property equally among his sons. The accused and L.W.7/Nellore Prasad sold their respective shares, but the deceased retained his share of property and was cultivating the same. About two months prior to the incident, accused and his wife went to the house of deceased and requested him to sell 10 ankanams of site, but the deceased refused to part with his share, as he was having three sons. (iii) One day prior to the incident, accused again went to the house of deceased at about 6.00 p.m., and requested him to give 10 ankanams, but the deceased refused. Then, the accused threatened the deceased with consequences. It is said at that time P.W.1, P.W.2, P.W.3 and L.W.4/Nellore Laxmanudu were present in the house. (iii) One day prior to the incident, accused again went to the house of deceased at about 6.00 p.m., and requested him to give 10 ankanams, but the deceased refused. Then, the accused threatened the deceased with consequences. It is said at that time P.W.1, P.W.2, P.W.3 and L.W.4/Nellore Laxmanudu were present in the house. (iv) On the fateful day i.e., on 30/10/2012 the deceased, P.W.1 to P.W.3 and L.W.4/Nellore Laxmanudu went to their agricultural field and after completing their work, returned to their house. It is said that at about 8.30 a.m., when the deceased was at the centre, accused came from behind, armed with an axe and beat the deceased with the said axe. On receiving the said injury, the deceased fell down. The incident was also witnessed by P.W.6 to P.W.8 and P.W.10. On hearing the cries of deceased, P.W.1 came to the spot. The villagers, who gathered there, questioned the accused, pursuant to which he fled away from the scene of offence with the axe. (v) It is said that P.W.1, P.W.2 and L.W.4/Nellore Laxmanudu along with L.W.8/Nellore Narasaiah took the deceased in an auto and by the time they reached reservoir, 108 ambulance came and thereafter, the injured was shifted into 108 ambulance. The deceased was brought to the Government Hospital, Nellore, where he lost his last breathe at about 10.00 a.m. (vi) The law was set into motion by P.W.1 by lodging a report with P.W.15. Ex.P.1 is the said report. Basing on the said report, a case in Crime No.96 of 2012 of Sangam Police Station came to be registered on 30/10/2012. Ex.P.5 is the FIR. Further investigation in this case was taken up by P.W.18, who went to the scene of offence, situated at Sangam village and secured the presence of P.W.12, prepared scene observation report, which is placed on record as Ex.P.9. He also prepared a rough sketch, which is marked as Ex.P.10. He then examined P.W.1 to P.W.4 and P.W.12 to P.W.16 and at the scene of offence conducted inquest over the dead body of the deceased in the presence of P.W.2. Ex.P.3 is the Inquest Report. (vii) After completing the inquest proceedings, the dead body was sent to Post-Mortem examination. P.W.13, Civil Assistant Surgeon, DSR Headquarters Hospital, Nellore conducted autopsy over the dead body of the deceased, who noticed two injuries on the head. Ex.P.3 is the Inquest Report. (vii) After completing the inquest proceedings, the dead body was sent to Post-Mortem examination. P.W.13, Civil Assistant Surgeon, DSR Headquarters Hospital, Nellore conducted autopsy over the dead body of the deceased, who noticed two injuries on the head. He further opined that the death occurred due to shock and injury. Ex.P.4 is the Post- Mortem examination report. The Doctor also opined that the injuries are caused with a blunt object. (viii) P.W.18 arrested the accused on 5/11/2012 and sent him to the judicial custody. Pursuant to confession, M.O.6 axe was discovered and after completion of investigation, a charge sheet came to be filed before the Court of Additional Judicial Magistrate of First Class, Kovur, which was taken on file as P.R.C.No.8 of 2013. 5. On appearance of accused, copies of case documents, as required under Sec. 207 Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C., ') were supplied to him. As the case is triable by a Court of Sessions, the same was committed to the Court of Sessions under Sec. 209 Cr.P.C. Accordingly, the same was made over to the Court of learned VI Additional District and Sessions Judge, S.P.S.R. Nellore District for trial and disposal in accordance with law. 6. On appearance of accused, charge as referred to earlier, came to be framed, read over and explained to the accused in Telugu, to which, he pleaded not guilty and claimed to be tried. 7. In support of case, prosecution examined P.W.1 to P.W.18 and got marked Ex.P.1 to Ex.P.16 and M.O.1 to M.O.6. After completion of prosecution evidence, the accused was examined under Sec. 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied, but no defence evidence was adduced in support of his plea. 8. Relying upon the evidence of eye-witnesses, more particularly, P.W.6 to P.W.8 and P.W.10 coupled with the evidence of P.W.2 and P.W.3, learned Sessions Judge convicted the accused. Challenging the same, present appeal came to be filed. 9. Ms. Aishwarya Nagula, learned counsel representing Sri H. Prahalada Reddy, learned counsel for the appellant/ accused would submit that there are number of circumstances to indicate that P.W.6 to P.W.8 and P.W.10 have not seen the incident. She further submits that because of disputes in the family, the appellant was roped in as an accused. 9. Ms. Aishwarya Nagula, learned counsel representing Sri H. Prahalada Reddy, learned counsel for the appellant/ accused would submit that there are number of circumstances to indicate that P.W.6 to P.W.8 and P.W.10 have not seen the incident. She further submits that because of disputes in the family, the appellant was roped in as an accused. She further submits that the entire dispute is with regard to only 10 ankanams of site. Learned counsel further submits that the evidence of P.W.6 to P.W.8 and P.W.10 is a complete improvement from what they have stated in their earlier statements, which is evident from the answers elicited in the cross-examination of Investigating Officer and as such, their evidence cannot be believable. She would further contend that the presence of P.W.2 and P.W.3 is highly doubtful, for the reason that when they have gone to their agricultural fields in the morning hours, question of they returning at 8.30 a.m., itself appears to be doubtful. She further submits that there is no altercation between the accused and the prosecution party in respect of any incident which was alleged to be happened on the previous day and as such, the incident which happened on that day warrants scaling down of offence; more so, when the blunt portion of the axe was used. 10. On the other hand, Sri S.Dushyanth Reddy, learned Additional Public Prosecutor opposed the same contending that though there are some omissions in the earlier statements of eye-witnesses, but the said omissions do not go to the root of the matter. According to him, not only the family members were present at the time of incident, but also independent witnesses whose evidence cannot be disbelieved, more so, when it is gets corroborates from the medical evidence. Hence, pleads that the conviction and sentence imposed by the Trial Court warrants no interference. 11. The point that arises for consideration is:- "Whether the prosecution has proved its case and whether is it a fit case to scale down the offence to Sec. 304-II of IPC?" 12. POINT:- The relationship between the parties is not in dispute. P.W.4, who is the father of accused, deceased and L.W.7/ Nellore Prasad partitioned the properties between them. While the accused and L.W.7/Nellore Prasad sold away their respective shares, the deceased claims to have retained his share. POINT:- The relationship between the parties is not in dispute. P.W.4, who is the father of accused, deceased and L.W.7/ Nellore Prasad partitioned the properties between them. While the accused and L.W.7/Nellore Prasad sold away their respective shares, the deceased claims to have retained his share. About two months prior to the incident, the accused is said to have gone to the house of P.W.4 and requested the deceased to give 10 ankanams of land to him, but the deceased refused to part with his share as he has three sons. A day prior to the incident, the accused again went to the house of deceased and requested him to give 10 ankanams, but when the deceased again refused to part with his share, the accused said to have threatened him and left the house. On the very next day i.e., on 30/10/2012 the incident in question took place. 13. P.W.2 and P.W.3 speak about the incident which took place prior to the present incident. Insofar as the incident in question is concerned, not only P.W.2 and P.W.3 but also P.W.6, P.W.7, P.W.8 and P.W.10 speak about the incident. According to P.W.3, on the fateful day while they were returning to their house after attending agricultural works, accused came from behind and beat the deceased with an axe, as a result of which he fell down and died while he was taken to hospital in an auto. P.W.2 and P.W.3 were cross-examined at length, but we feel that nothing useful came to be elicited to discard their testimonies. The suggestion given to P.W.2 and P.W.3 that they have not witnessed the incident, was denied. But, one fact which was elicited in the evidence of P.W.2 is that no altercation took place when the accused came to their house, a day prior to the incident. 14. P.W.6, P.W.7 and P.W.8, who are the independent witnesses, were examined to speak about the incident. P.W.6 in his evidence states that on the fateful day, he was standing at the centre to go to coolie work. At that point of time, the deceased came to him along with P.W.2, P.W.3 and L.W.4/ Nellore Laxmanudu after completing the agricultural work. At that time, the accused beat the deceased on the backside of his head with an axe, as a result of which, the deceased collapsed. At that point of time, the deceased came to him along with P.W.2, P.W.3 and L.W.4/ Nellore Laxmanudu after completing the agricultural work. At that time, the accused beat the deceased on the backside of his head with an axe, as a result of which, the deceased collapsed. It is said that after boarding the deceased in an auto, the witnesses present there asked the accused stating "xxx xxx?xxx" i.e., 'what you have done'. The version of P.W.2 with regard to incident in question gets corroboration not only from the evidence of P.W.6 but also P.W.7, P.W.8 and P.W.10. 15. The learned counsel for appellant tried to contend that the omissions in their statements which are elicited through the evidence of eye-witnesses and Investigating Officer would demolish the prosecution case. In order to appreciate the same, it would be appropriate for us to refer to the same. 16. P.W.18 is the Investigating Officer, who examined all these witnesses. Coming to the presence of P.W.2 and P.W.3, it is to be noted that in the FIR, which is given by P.W.1, there is no reference to the deceased holding an axe. Further, P.W.1 did not mention in Ex.P.1 that the accused beat the deceased from backside. According to him, P.W.2 in his statement recorded under Sec. 161 Cr.P.C., did not state that he along with P.W.3, L.W.4/Nellore Laxmanudu and deceased were returning to their house after completing the agricultural work. P.W.2 also did not state in his earlier statement about the accused beating the deceased from backside. Further, P.W.1 and P.W.2 did not state in their statements about P.W.10 accompanying them to the hospital in an auto. P.W.3 also did not state that he accompanied P.W.2 and L.W.4/Nellore Laxmanudu to the agricultural land and also about P.W.10 accompanying in the auto while shifting the deceased to the hospital. 17. From the answers elicited in cross-examination of Investigating Officer, the learned counsel would contend that there is any amount of doubt with regard to presence of P.W.2 and P.W.3 at the scene and they witnessing the incident in question coupled with the fact of accused being armed with an axe. Insofar as accused holding an axe is concerned, the FIR is not an encyclopaedia which should contain every fact. Insofar as accused holding an axe is concerned, the FIR is not an encyclopaedia which should contain every fact. However, a perusal of FIR along with report would show that at about 8.30 hours, when they came to the house of Nellore Penchalaiah, accused hacked the deceased with an axe on the rear and left side of head and on seeing them, they rushed to spot by raising cries and found the deceased in a pool of blood. Therefore, the omission which is elicited was with regard to accused holding an axe, but it is nobody's case that he was armed with an axe at that time. This omission, in our view may not matter much or go to the root of the case. 18. Even assuming that P.W.2 and P.W.3 have not seen the incident, but the fact remains that on their own saying and from the answers elicited makes it clear that on seeing the incident only they rushed to the scene of offence. The version of prosecution, in our view, get corroborates from the evidence of independent witnesses, who were examined as P.W.6 to P.W.8 and P.W.10. It may be true that P.W.6 to P.W.8 and P.W.10 were not examined at the time of inquest, but, they are not family members to be present there, therefore, one cannot expect them to be present at the time of inquest which was held in their house situated at Nellore. Therefore, non-mentioning of their names in the inquest proceedings, in our view may, not be fatal. 19. The discrepancy pointed out by the learned counsel was with regard to usage of words by the witnesses against the accused after the incident. It is to be noted here that each witnesses use different phrases against the accused after the incident, like [XXXXXXXX] etc. The phrases used though different, in our view, it may not affect the prosecution case. These four witnesses being independent witnesses, who are examined by the investigating agency immediately and who came forward when the investigating agency visited the spot, cannot be ignored on the ground that they were not examined at the time of inquest. 20. Having regard to the above, we feel that the prosecution has proved the incident in question viz., involvement of accused in commission of offence. 20. Having regard to the above, we feel that the prosecution has proved the incident in question viz., involvement of accused in commission of offence. At this stage, learned counsel for the appellant would contend that in view of evidence of the Doctor, who conducted post-mortem examination and the evidence on record to the effect that single blow was given, pleads for scaling down of offence. The evidence of eye-witnesses and the case of prosecution is that while the deceased along with others was present at village centre, accused came from backside and dealt a blow on the head with an axe. There was only one blow given by the accused, which is not disputed by prosecution. As a result of the said blow, the deceased fell down and thereafter, he was taken to the hospital, where he was declared as 'dead'. The evidence of Post-Mortem Doctor shows two injuries on the body of deceased, while both injuries were on same place. 21. P.W.13, who conducted Post-Mortem Examination, speaks about a depressed fracture of skull over parietal and occipital region above the right ear and another injury was depressed fracture above that 4 cms apart from the first injury and both injuries were cavity deep. Therefore, from the above, it is clear that both injuries were separated by a distance of 4 cms and both of them were on the parietal and occipital region of the head. Having regard to the above, the argument that both these injuries are possible by a single blow, cannot be brushed aside. But, one fact which is to be noted here is that, in crossexamination of P.W.13, he deposed that the injuries under Ex.P.4 Post-Mortem certificate, will be sustained by usage of blunt object of an axe. 22. Ergo, if really the intention of accused, who is none than the brother of deceased, is to cause death of deceased, he would have used the sharp edge portion or metal portion of the axe. The fact that medical evidence discloses usage of blunt object of an axe which is wooden portion of the axe, it can be said that accused may not be having intention to cause death of deceased. More so, when a single blow was given with the wooden portion of the axe. The fact that medical evidence discloses usage of blunt object of an axe which is wooden portion of the axe, it can be said that accused may not be having intention to cause death of deceased. More so, when a single blow was given with the wooden portion of the axe. Apart from the above, it is also to be noticed that P.W.1, who is wife of deceased, in her crossexamination states that on the date of incident, the deceased was holding an axe, but she never insisted the deceased to participate in a fight. The deceased went to the police station and when he turned back, the accused beat him on his head and with the back portion with an axe. On the date of incident also, she prevented the deceased not to participate in the fight. It would be appropriate to extract the same which is as under: 'On the date of the incident deceased was holding the axe. I never insisted the deceased to participate in a fight. The deceased went to the police and by that time he turned towards his back and the accused beat him on his head on the back portion with the axe. On the date of the incident I prevented the deceased to not to participate in the fight.' 23. Further, the evidence on record also shows that except the incident which happened on the previous day and that too without an altercation between the accused and deceased, no other incident occurred between them. In Hanuman Vs. State of Haryana, 1994 Supreme Court Cases (Crl) 146. it was held in para No.3, as under: "It is during such a situation the appellant is alleged to have dealt a blow with blunt side of the axe on the head of the deceased. In these circumstances, it is difficult to hold that either Clause I or III of Sec. 300 is attracted. However, the appellant must be attributed knowledge that by inflicting such a blow he was likely to cause the death of the deceased." 24. Further, if really the appellant had an intention to cause death, he would have used the sharp or metal portion of the axe. However, the appellant must be attributed knowledge that by inflicting such a blow he was likely to cause the death of the deceased." 24. Further, if really the appellant had an intention to cause death, he would have used the sharp or metal portion of the axe. Having regard to the Judgment of the Hon'ble Apex Court referred to above and the manner in which the incident took place, we feel that it is a fit case to scale down the offence. Hence, the conviction under Sec. 302 of IPC and sentence of imprisonment for 'life' is set-aside. Instead, we convict the appellant for the offence punishable under Sec. 304 Part-II of IPC and sentenced him to undergo rigorous imprisonment for a period of five (5) years. The appeal is partly allowed. 25. In the result, the conviction and sentence recorded by the learned VI Additional District and Sessions Judge, S.P.S.R. Nellore District vide Judgment, dtd. 26/4/2016, in Sessions Case No.189 of 2013 against the appellant/accused for the offence punishable under Sec. 302 of IPC, are set aside. Instead, the appellant/accused is found guilty for the offence punishable under Sec. 304 Part-II of IPC and accordingly, the sentence imposed to undergo imprisonment for 'life', is modified to that of five (05) years. Accordingly, with the above modification in conviction and sentence, the criminal appeal is partly allowed. Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.