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2022 DIGILAW 169 (AP)

G. M. Eswar Rao v. Public Prosecutor, Hyderabad

2022-02-09

C.PRAVEEN KUMAR, K.MANMADHA RAO

body2022
JUDGMENT : C. PRAVEEN KUMAR, J. 1. Accused Nos. 1 and 2 in Sessions Case No. 566 of 2014 on the file of learned Additional Sessions Judge, Hindupur who are the appellants herein, were tried for the offence under Section 302 read with Section 34 of Indian Penal Code, 1860 [for short “I.P.C.”] for causing the death of one A. Venkateswara Rao [deceased] who is the husband of A.2. 2. Vide Judgment, dated 17.06.2015, learned Sessions Judge convicted both the accused for the offence under Section 302 r/w. Section 34 I.P.C. and sentenced each one of them to suffer Rigorous Imprisonment for Life and also to pay a fine of Rs. 5000/- each, in default, to suffer Simple Imprisonment for two years each. Assailing the same, the present appeal came to be filed. 3. The facts, in issue, are as under: (i) A.2 is the wife of the deceased while A.1 is the father of A.2. PW-1 is the brother, PW-2 is the sister and PW-5 is the mother of the deceased. PW-1 was working as an Inspector, in Land Army Corporation Limited, Bellary. The marriage between the deceased and A.2 took place at Hindupur about 12 years prior to the date of his giving evidence. A.2 along with A.1 were staying at Model Colony, Hindupur Town. Initially, the deceased and A.2 lead their marital life at Siriguppa for four years, thereafter, they shifted to Hindupur and started staying with A.1 along with their two children. The deceased took the house of A.1 on mortgage on condition that he would pay Rs. 25,000/- to A.1 and started working as a Tailor in the Tailoring shop of PW-2. (ii) While so, on 13.10.2013 at about 5.00 P.M. PW-2 went to the house of the deceased to invite him and his family members for ‘Ayudhalapuja’ in view of ensuing Durga festival. She stayed in the house till the deceased reached his house which was 10.00 P.M. by then. On entering the house, the deceased questioned A.2 about the source of her income for purchase of the almarah. A quarrel ensued between husband and wife regarding purchase of almarah. She stayed in the house till the deceased reached his house which was 10.00 P.M. by then. On entering the house, the deceased questioned A.2 about the source of her income for purchase of the almarah. A quarrel ensued between husband and wife regarding purchase of almarah. Immediately, at that point of time, A.2 caught-hold of the hands of the deceased from backside while A.1 said to have dealt a blow on the left side of the head and also on the middle of the head and also near the ear of the deceased with a stick. On receiving the injuries, the deceased fell down and thereafter both the accused bet the deceased with hands and legs. PW-2 who was present at the scene, witnessed the incident. Thereafter, PW-2 fell unconscious for a few seconds and after she woke up, noticed the neighbours gathered at the scene and with their help she shifted the deceased to Government Hospital, Hindupur where the doctors declared the deceased as brought dead. (iii) At about 1.00 A.M. on 14.10.2013, PW-8-Inspector of Police received the death intimation of the injured from Government Hospital, Hindupur. Immediately, he along with Head Constable rushed to Government Hospital and found the dead body in the mortuary. He posted a guard at the mortuary room. Along with PW-2 and one auto driver, PW-8 visited the scene of offence which is in-front of the residential house of the accused. After posting a guard at the scene, he requested PW-2 to give a report. She informed that her blood relatives are on the way to Hindupur and after their arrival she will furnish the information. At about 10.00 A.M. PW-1 is said to have lodged a report before PW-8 which lead to registration of a case in Crime No. 108 of 2013 under Section 302 r/w. Section 34 I.P.C. Ex.P7 is the copy of the F.I.R. At about 11.15 A.M. PW-8 left the Police Station and in the presence of PW-6, inquest over the dead body of the deceased. Ex.P2 is the inquest report. After completing the inquest proceedings, he sent the dead body for Post Mortem examination. (iv) PW-7 Civil Assistant Surgeon at Government Hospital, Penukonda conducted autopsy over the dead body of the deceased on 14.10.2013 between 3.25 P.M. and 4.30 P.M. Ex.P6 is the Post Mortem Certificate. Ex.P2 is the inquest report. After completing the inquest proceedings, he sent the dead body for Post Mortem examination. (iv) PW-7 Civil Assistant Surgeon at Government Hospital, Penukonda conducted autopsy over the dead body of the deceased on 14.10.2013 between 3.25 P.M. and 4.30 P.M. Ex.P6 is the Post Mortem Certificate. According to him, the deceased would have died due to hemorrhagic shock, 16 to 24 hours prior to the Post Mortem examination. The doctor also noticed that injury no. 1 is sufficient to cause the death of the deceased. PW-8 continued with the investigation, got the scene of offence photographed and also prepared a rough sketch of the scene. He arrested the accused on 15.10.2013 in the presence of PW-6 and others. On examination, the accused is said to have confessed about the commission of offence. Ex.P4 is the relevant portion of the confession. His confession led to discovery of a stout stick [M.O.1] the weapon alleged to have been used by the accused in the commission of offence. The said stick was seized under Ex.P5 [Mediators report]. 4. After collecting Forensic Laboratory report and all the necessary documents, PW-8 filed a Charge-Sheet, which was taken on file as P.R.C. No. 06 of 2014 on the file of the learned Judicial Magistrate of First Class, Hindupur, for the offence punishable under Section 302 r/w. 34 IPC. 5. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C. were supplied to them. As the offences are triable by Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned Additional Sessions Judge, Hindupur for trial and disposal in accordance with law. 6. Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, they pleaded not guilty and claimed to be tried. 7. To substantiate its case, the prosecution examined PWs. 1 to 8 and got marked Exs.P1 to P11 and M.Os.1 to 8. After the closure of the Prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. 7. To substantiate its case, the prosecution examined PWs. 1 to 8 and got marked Exs.P1 to P11 and M.Os.1 to 8. After the closure of the Prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. Though, no oral evidence was adduced, they got marked Exs.D1 to Ex.D4 in support of their plea. Having regard to the evidence of PWs. 1 and 2 which gets corroboration from medical evidence, the learned Additional Sessions Judge convicted the accused. Challenging the same, the present Criminal Appeal came to be filed. 8. Sri. N. Ranga Reddy, learned counsel appearing for appellants/accused, mainly submits that the entire case rests on the evidence of PW-2, who was examined as an eye witness to the incident. According to him, there are number of circumstances indicate that PW-2 was not present at the time of incident. He mainly submits that PW-2 having gone to the house of deceased at 5.00 P.M. staying there till 10.00 P.M. appears to be improbable. He further submits that if PW-2 really was present in the house of the deceased, her evidence should get corroboration from the medical evidence, but the same is lacking. In any event, he would submit that in the absence of any motive being established for the cause of the death of the deceased, and as the incident happened in a spur of movement, the conviction may be scaled down from Section 302 I.P.C. to 304 Part-II I.P.C. 9. Sri. S. Dushyanth Reddy, learned Additional Public Prosecutor opposed the same, contending that there is nothing unusual in PW-2 being present in the house of the deceased from 5.00 P.M. to 10.00 P.M. He further submits that there is no inconsistency in the evidence of PW-2 vis-a-vis the medical evidence since the evidence of the doctor would show existence of injuries on head and on the right and left side of the face of the deceased. Having regard to the above, the conviction and sentence imposed by the trial Court, warrants no interference. 10. The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt? 11. Having regard to the above, the conviction and sentence imposed by the trial Court, warrants no interference. 10. The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt? 11. As stated above, PW-1 is the brother, PW-2 is the sister, PW-3 is the cousin while PW-4 is the mother of the deceased. Before dealing with the evidence of PW-2, who was examined as eye witness to the incident, it would be appropriate to refer to the evidence of PW-4, to know the backdrop of the case. She, in her evidence deposed that the deceased and A.2 got married about 12 years prior to his death and after marriage both of them lead a happy marital life for four years at Siriguppa. Thereafter, they came down to Hindupur and started residing in the house of A.1, on taking the house for mortgage, on payment of Rs. 25,000/- as mortgage money. The said fact of deceased and A.2 living in the house of A.1, who is the father-in-law of the deceased gets corroboration from the evidence of PWs. 1 to 3 as well. The evidence of PW-2 also establishes that she runs a Tailoring shop and the deceased was working as a Tailor in her shop. 12. On 13.10.2013 at about 5.00 P.M. PW-2 is said to have gone to the house of the deceased to invite him and his family members for ‘Ayudhalapuja’ in view of Dasara festival. The deceased returned home on 10.00 P.M. at which point of time an altercation took place between A.2 and the deceased, when the deceased questioned A.2 as to how she raised money for purchase of an almarah. At that point of time, A.1 came there with a stout stick and beat the deceased, while A.2 caught-hold of the hands of the deceased from backside. When the deceased fell down, both of them beat the deceased with hands and legs. At that point of time, A.1 came there with a stout stick and beat the deceased, while A.2 caught-hold of the hands of the deceased from backside. When the deceased fell down, both of them beat the deceased with hands and legs. This part of the evidence of PW-2 is sought to be challenged by learned counsel for the appellants mainly on two grounds that, if really PW-2 went to the house of the deceased on the date of incident at 5.00 P.M. for inviting him and his family members for ‘Ayudhalapuja’ in view of Dasara Festival, her presence in the house of the deceased till arrival of the deceased at 10.00 P.M. is very much doubtful. Secondly on the ground that PW-2 evidence is inconsistent with the medical evidence. 13. In so far as the first circumstance is concerned, it is to be noted that the deceased is none other than the brother of PW-2 and in-fact the deceased was working in her shop. Therefore, there is nothing unusual in PW-2 going to the house of the deceased at 5.00 P.M. and staying there till the arrival of his brother, for extending invitation. Things would have been different and the arguments of learned counsel for the accused would have caused some force, had the incident took place at the house of stranger where one cannot expect PW-2 to stay there till arrival of the person, who was to be invited. As the invitation is to her brother there is nothing unusual to doubt her presence at the house of the deceased. 14. Coming to the second circumstance namely the inconsistency between the oral evidence and the medical evidence. It is to be noted here that the medical evidence is an opinion evidence and if the evidence of eye witness inspires confidence and if the said evidence is truthful, the same can be acted upon. Even otherwise, in the instant case, the evidence of PW-2 would show that A.1 cause their armed with stick on hearing the quarrel between the deceased and A.2. Then A.2 caught-hold of the hands by bending them backside while A.1 beat the deceased on the head and also middle of the head and near the nose of the deceased. In a situation like this, one cannot expect PW-2 to say in precise the place where the blows were dealt. Then A.2 caught-hold of the hands by bending them backside while A.1 beat the deceased on the head and also middle of the head and near the nose of the deceased. In a situation like this, one cannot expect PW-2 to say in precise the place where the blows were dealt. Even otherwise, the evidence of doctor would show that there was an injury external from root of the nose extending up to the center of the forehead with irregular margins and exposing nasal bones and also another injury on right side forehead, 4 cms. above the right eyebrow while the fourth injury is on the right side forehead with irregular margins with clotted blood. Therefore, the argument of the learned counsel for the accused that since the medical evidence and the oral evidence are inconsistent, the entire evidence of prosecution has to be doubted, cannot be accepted. The medical evidence is only an opinion evidence and the evidence of PW-2 establishes the existence of injuries on the face, which injury got extended up to the center of the forehead. Further, in the cross-examination, the doctor categorically admits that the injuries 1 to 3 are lacerated and injury number one alone is sufficient to cause the death of the deceased, whereas the other injuries are not sufficient to cause the death of the deceased. 15. At this stage, learned counsel for the accused would submit that in the absence of any motive and as everything is happened in a spur of movement pleads that it may not be an offence under Section 302 I.P.C. PW-2 is only a witness to speak as what happened on that night. She in her evidence categorically deposed that at 10 P.M. when her brother entered the house. He noticed an almarah in the house he questioned his wife as to how she could raise funds for purchase of the said almarah. At that point of time, a quarrel took place between them with regard to the said almarah. Then A.1 came there with a stout stick. On seeing the same, A.2 caught-hold of the deceased, bent his hands backside and then A.1 beat with a stick and caused injuries on the hand of the deceased. At that point of time, a quarrel took place between them with regard to the said almarah. Then A.1 came there with a stout stick. On seeing the same, A.2 caught-hold of the deceased, bent his hands backside and then A.1 beat with a stick and caused injuries on the hand of the deceased. Except this incident in question, no evidence has been adduced by the prosecution to show existence of any ill-will or disputes between A.1 and A.2 on one side and deceased on other side. As the attack is an outcome of the said incident, which took place immediately prior to the incident, we feel that it is a fit case where the nature of offence has to be scaled down from Section 302 I.P.C. to Section 304 Part-II I.P.C. At this stage, learned counsel for the accused would submit that both the accused were in jail for nearly 5½ years from the date of conviction of Sessions Judge and only in the month of October, 2020 they were released on bail by this Court in terms of Judgment of Batchu Rangarao and Others vs. State of A.P. 2016 (3) ALT (Crl.) 505 (AP). 16. Having regard to the fact that A.1 is aged about 75 years and A.2 being a lady, who only caught-hold of the hands of the deceased at the time of alleged offence, we feel that ends of justice would be made if the sentence and imprisonment of both the accused is reduced to a period already undergone. 17. Accordingly, the Criminal Appeal is allowed in part. The conviction and sentence recorded against the appellants/A.1 and A.2 in the Judgment dated 17.06.2015 in Sessions Case No. 566 of 2014 on the file of learned Additional Sessions Judge, Hindupur, for the offence punishable under Sections 302 read with Section 34 I.P.C. is scaled down and the sentence and imprisonment of both the accused is reduced to the period of imprisonment already undergone. Consequently, the appellants/A.1 and A.2 are acquitted for the said offence. The appellants/A.1 and A.2 shall be set at liberty forthwith, if they are not required in any other case or crime. 18. Consequently, miscellaneous petitions, if any, pending shall stand closed.