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2022 DIGILAW 70 (AP)

Lekkala Krishtappa v. State Of A. P.

2022-01-19

C.PRAVEEN KUMAR, K.MANMADHA RAO

body2022
JUDGMENT: The sole accused in Sessions Case No.175 of 2013 on the file of the learned Additional Sessions Judge, Hindupur, is the appellant herein. He was tried for an offence punishable under Section 302 of Indian Penal Code (‘I.P.C.’) for causing the death of one Lekkala Narappa (hereinafter referred to as ‘the deceased’) on 13.08.2012 at about 9:00 A.M. at Sathyamma Temple by beating him with a pestle on the abdomen. Vide judgment, dated 07.09.2015, the learned Sessions Judge convicted the accused for the offence punishable under Section 302 I.P.C. and sentenced him to suffer Rigorous Imprisonment for life and also to pay a fine of Rs.10,000/-, in default, to undergo Simple Imprisonment for a period of six months. 2. The facts, as revealed in the evidence of the prosecution witnesses, are as under: PWs.1, 6 and 7 are the sons and PW.5 is the wife of the deceased. PWs.2 and 3 were examined as eye witnesses to the incident. Prior to the date of incident, one Aswarthamma was indebted to a tune of Rs.4,000/- to PW.6, who is the son of deceased. In that regard, there were some disputes between them. Because of disputes, the accused is said to have bore grudge against the family of the deceased leading to the incident in question. It is said that on 13.08.2012 at about 9:00 A.M., while PW.1 was at Sathyammagudi in his village along with the deceased, the accused came there along with a pestle, provoked the deceased and then beat him with the pestle causing bleeding injury. Immediately, PW.1 along with PWs.6 and 7 took the injured to Sathyasai General Hospital, Puttaparthy. On the advice of Doctors at Puttaparthy, they have taken the deceased to K.K.Hospital, Anantapuram for better treatment and from thereto Manipal Hospital, Bangalore. On 14.08.2012 at about 8:00 P.M., PW.1 went to Puttaparthy Urban Police Station and lodged a report. Ex.P.1 is the said report. Basing on the said report, PW.10 - C.I. of Police registered a case in Crime No.101 of 2012 for the offence punishable under Section 324 I.P.C. against the accused. After lodging the report, PW.1 proceeded to Bangalore on receipt of information about the death of the deceased. PW.10 - C.I. of Police, who registered the crime, examined PW.1 and recorded his statement. After lodging the report, PW.1 proceeded to Bangalore on receipt of information about the death of the deceased. PW.10 - C.I. of Police, who registered the crime, examined PW.1 and recorded his statement. On 15.08.2012, he visited the scene of offence and prepared a rough sketch of the scene, which is marked as Ex.P.9. He also recorded the statements of PWs.2 to 5. On receipt of intimation about the death of the deceased, he altered the Section of law from 324 I.P.C. to 302 I.P.C. and issued Ex.P.10 - altered F.I.R. He then went to Bangalore and shifted the dead body from Manipal Hospital to Bowring and Lady Curzon Hospital, Bangalore where he held inquest over the dead body in the presence of PW.8. Ex.P.12 is the inquest report. After conducting inquest, he sent the body for post-mortem examination. PW.9 - Associate Professor, Forensic Medicine Department at Lady Curzon and Victoria Hospital, Bangalore conducted postmortem examination over the dead body of the deceased and opined that the cause of death was due to peritonitis consequent upon blunt injury to the abdomen. PW.10, who continued with the investigation, examined the witnesses and arrested the accused on 26.08.2012 at Peddakammavaripalli Village. Pursuant to confession made, MO.1 - weapon used in the commission of offence was recovered. After collecting all necessary documents, a charge sheet came to be filed, which was taken on file as P.R.C.No.99 of 2012 on the file of Judicial Magistrate of First Class, Penukonda. 3. On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court of Sessions, the matter was committed to the Sessions Court under Section 209 Cr.P.C. Basing on the material available on record, charge as referred to above came to be framed, read over and explained to the accused in Telugu, to which, the accused pleaded not guilty and claimed to be tried. 4. In support of its case, the prosecution examined PWs.1 to 11 and got marked Exs.P.1 to Ex.P.13. Out of 11 witnesses examined by the prosecution, PWs.2, 3, 4 and 8 did not support the prosecution case and were declared hostile by the prosecution. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied. Out of 11 witnesses examined by the prosecution, PWs.2, 3, 4 and 8 did not support the prosecution case and were declared hostile by the prosecution. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied. In support of his case, he examined DWs.1 to 4 and got marked Exs.D.1 to D.4 and D.4A. 5. Believing the evidence of PWs.1, 5, 6 and 7 coupled with the medical evidence, the learned Sessions Judge convicted the accused. Assailing the said conviction and sentence imposed, the present appeal came to be filed. 6. Smt. A.Gayatri Reddy, learned counsel for the appellant, mainly submits that there is absolutely no legal evidence available on record to connect the accused with the crime. According to her, PWs.2 and 3, who were shown as eye witnesses to the incident in First Information Report, did not support the prosecution case and were declared hostile by the prosecution. Coming to the evidence of PWs.1, 6 and 7, she would contend that, on their own showing they came to the scene of offence after the incident and thereafter shifted the injured to the hospital. Since First Information Report is silent with regard to the presence of PWs.6 and 7 coupled with the admission in the evidence of PW.7 that he alone was present along with the third person, she vehemently contends that the prosecution has set up these three witnesses as eye witnesses to the incident. She would further contend that these two witnesses cannot be relied upon as they are close relatives/sons of the deceased, more so, when independent witnesses did not support the prosecution case. In any event, she would contend that since the death was due to peritonitis and in the absence of any external injury on the body of the deceased and as the assault was on the abdomen, she would contend that the nature of offence requires to be scaleddown. 7. In any event, she would contend that since the death was due to peritonitis and in the absence of any external injury on the body of the deceased and as the assault was on the abdomen, she would contend that the nature of offence requires to be scaleddown. 7. On the other hand, Sri K.Srinivasa Reddy, learned Public Prosecutor, opposed the same contending that in the absence of any evidence to show that the deceased was suffering with any ailment at the time of commission of offence and having regard to the nature of injury caused and weapon used, the argument of learned counsel for the appellant that the offence under Section 302 I.P.C. requires to be scaled-down cannot be accepted. Coming to the merits of the case, he would contend that the First Information Report is not an ‘Encyclopedia’, which should contain all the details. It is not a case where non-mentioning of PWs.6 and 7 as witnesses to the incident in the F.I.R. casts a doubt on their presence at the scene. According to him, PWs.6 and 7 are natural witnesses present at the scene along with their father, who is the deceased in this case. He would further contend that since they were present at the scene, they were able to take the deceased to the hospital immediately, which fact is not disputed by the accused while cross-examining the witnesses. Having regard to the manner in which the incident took place coupled with the evidence of PWs.1, 6 and 7, he would contend that the prosecution has proved the guilt of the accused beyond all reasonable doubt and as such, conviction and sentence imposed by the trial Court requires no interference. 8. The point that arises for consideration is: “Whether the prosecution was able to prove the guilt of accused for the offence punishable under Section 302 I.P.C. beyond all reasonable doubt?” 9. In order to appreciate the rival arguments advanced, it would be appropriate to refer to the evidence of PWs.1, 5, 6 and 7. 10. Insofar as motive aspect is concerned, the prosecution mainly relied upon the evidence of PWs.5, 6 and 7 to prove the same. It is no doubt true that about four years prior to the incident, one Aswarthamma fell indebt a sum of Rs.4,000/- to PW.6, who is the son of PW.5 and deceased. 10. Insofar as motive aspect is concerned, the prosecution mainly relied upon the evidence of PWs.5, 6 and 7 to prove the same. It is no doubt true that about four years prior to the incident, one Aswarthamma fell indebt a sum of Rs.4,000/- to PW.6, who is the son of PW.5 and deceased. There was some dispute with regard to repayment of the amount. Because of which, the accused said to have some grudge against the family of the deceased. Though an amount of Rs.4,000/- was taken as hand loan by the sister-in-law of the accused from PW.6 about four years prior to the incident, but there is no evidence on record to show that any incident relating to non-payment of the amount took place couple of days or months prior to the incident in question. 11. Coming to the incident in question, PW.1 in his evidence categorically deposed that on 13.08.2012 at about 9:00 P.M., he along with his deceased father were at Sathyamma Temple in the village. At that time, the accused came there along with a pestle provoked his father and beat him with the said pestle. Immediately, he along with his brother PW.7 took the deceased to Sathyasai General Hospital, Puttaparthy and from thereto K.K.Hospital, Anantapuram and then to Manipal Hospital, Bangalore where he died on 15.08.2012. Law was set into motion by PW.1 by lodging a report at Puttaparthy Urban Police Station. 12. PW.1 was cross-examined at length, wherein it was elicited that except the demand of money, there is no other reason for the incident in question. He admits that accused was not indebted to any of his family member. He further admits that there was exchange of words between his father and the accused. He further admits that the accused did not beat his father by picking up a pestle, which was lying there. But, however, admits that in First Information Report, he mentioned that the accused beat his father with a pestle that was lying there. It was also elicited that there is no documentary evidence on record to show that the relative of the accused is indebted to them a sum of Rs.4,000/-. All other suggestions given with regard to the manner in which the deceased was taken to hospital, and the treatment given were denied. 13. It was also elicited that there is no documentary evidence on record to show that the relative of the accused is indebted to them a sum of Rs.4,000/-. All other suggestions given with regard to the manner in which the deceased was taken to hospital, and the treatment given were denied. 13. Before proceeding further, it would be appropriate to refer to the First Information Report given by PW.1. In the said report, though there is no reference to names of other persons/ witnesses, who were present at the time of incident, the said report categorically speaks about the dispute with regard to nonpayment of amount of Rs.4,000/- to PW.6; the accused abusing the deceased before the incident in question; picking up a pestle lying there and then beating the deceased in the abdomen. 14. From the evidence of PW.1 coupled with the contents of Ex.P.1 report, it is clear that there were some disputes in the family of the accused and deceased with regard to non-payment of Rs.4,000/-, which was taken four years prior to the incident and on the date of incident, the accused came to Sathyamma Temple where PW.1 was there, picked up quarrel with the deceased, picked up a pestle, which was lying there and then beat him with a pestle. Though PW.1 tried to improve his case in the Court by saying that the accused went to his house and brought a pestle, the said version appears to be an improvement as the version in the First Information Report is something different namely that he picked up a pestle that was lying at the scene i.e., temple. As stated earlier, PWs.2, 3 and 4, who were examined as eye witnesses, did not support the prosecution case and were declared hostile by the prosecution. 15. Coming to the evidence of PW.5, who is none other than wife of the deceased, she in her evidence deposed that on the date of incident at about 9:00 P.M., the accused came to her house with a pestle in his hand and warned that, somebody will die today in their house and further states that they can do whatever they want. According to her, when on reaching Sathyammagudi, noticed the accused beating the deceased with pestle on the abdomen, as a result of which, he fell down. After falling down, the accused again beat the deceased. According to her, when on reaching Sathyammagudi, noticed the accused beating the deceased with pestle on the abdomen, as a result of which, he fell down. After falling down, the accused again beat the deceased. Thereafter, PW.7 is said to have reached the scene of offence and shifted the injured to the hospital. 16. This evidence of PW.5 cannot be accepted for the reason that in her earlier statement, she did not state before the police that she followed the deceased to Sathyammagudi. That being the position, a doubt arises as to whether really she was present at the scene of offence. Apart from that, PW.1 in his cross-examination categorically admits that the accused did not beat the deceased after he fell down, which is contrary to the evidence of PWs.5, 6 and 7, who claim to be present at the scene of offence. 17. PWs.6 and 7 are the sons of the deceased. Much comment has been made by the learned counsel for the appellant with regard to their presence at the scene of offence. While PWs.6 and 7 in their evidence in chief, categorically deposed about they being present at Sathyammagudi on 13.08.2012 at 9:00 P.M. and witnessing the incident and thereafter, shifting the injured to the hospital. But, the learned counsel for the appellant would contend that in view of the earlier statement made before the investigating officer namely PW.6 not mentioning about hearing of the cries and then proceeding to temple and PW.7 not stating before him that he followed his father to Sathyammagudi and not stating that he alone took the deceased to hospital coupled with the fact that PW.7 failed to mention about he witnessing the accused beating the deceased, there is any amount of doubt about PWs.6 and 7 not witnessing the incident question. 18. We are not in agreement with the argument of learned counsel for the appellant with regard to presence of PWs.6 and 7 at the scene. Even assuming for the sake of argument that PW.7 has not witnessed the accused beating the deceased at Sathyammagudi and that he was not present at the scene and that he came to the scene after the incident in question as deposed by PW.5, but the evidence of PW.6 remains unchallenged in fact it is not the case of PW.5 or any other witness that PW.6 was not present at the scene. Even the investigating officer in his evidence does not depose anything contrary to the evidence of PW.6 or dispute his presence at the scene. Though the name of PW.6 is not reflected in the First Information Report, but as First Information Report is not an ‘Encyclopedia’, which should contain all the details, more so, in a case of this nature where the dispute was between the family members with regard to non-payment of debt, there is no reason to disbelieve the presence of PW.6. One other reason to believe the evidence of PWs.1 and 6 is the medical evidence corroborating the evidence of PWs.1 and 6 in all material aspects. Therefore, we hold that the prosecution has established the incident in question and the involvement of the accused in the commission of the offence. 19. At this stage, learned counsel for the appellant tried to contend that even accepting the entire prosecution case to be true, it may not amount to an offence under Section 302 I.P.C. 20. As seen from the contents of First Information Report lodged by PW.1, the accused is said to have objected and beat on the abdomen of the deceased by picking up the pestle lying at the scene. Though PW.1 in his evidence before the Court gave a different version, which is to the effect that the accused went home and brought the pestle with which he attacked the deceased, in the cross-examination, as stated earlier, he admits that in the First Information Report he categorically stated that the accused picked up pestle, which was lying there, and beat the deceased. Therefore, the argument of learned counsel for the appellant that the accused never came there with an intention to do away with the deceased cannot be brushed aside. Apart from that, the evidence of PW.9 - Doctor shows that there were no external injuries on the body of the deceased. It would be appropriate to extract the evidence of PW.9 - Doctor, which is as under: “The body was kept in body cooler, it was told me that he was treated at Manipal Hospital, Bangalore earlier. There was an addressive plaster in the front of middle of the abdomen, on removable of plaster, there was 20 cms long stapled injury was present. Then on the right side of the abdomen there was ileostomy wound surgically made. There was an addressive plaster in the front of middle of the abdomen, on removable of plaster, there was 20 cms long stapled injury was present. Then on the right side of the abdomen there was ileostomy wound surgically made. On internal examination of the dead body I found the following injuries, except the abdomen all other organs are intact. In the abdomen cavity there was 600 ml of purulent and reddish brown fluids found. All the abdominal organs are covered by fibronous material. I am of the opinion that the death was due to peritonitis consequent upon blunt injury to the abdomen sustained. The P.M. certificate is issued by me is marked as Ex.P7. Witness identified his signature on the same.” 21. In the cross-examination, PW.9-Doctor admits that he did not find any bleeding injury on the body and there was only a blunt injury, which is a contusion. He further admits that 20 cms long injury is only a surgical injury and except surgical injury, he did not find any injury on the body of the deceased. It would be appropriate to extract answers elicited in the cross-examination of PW.9, which are as under: “It is true to suggest that by mere appearance, it is not possible to give the correct age of a person. I did not find any bleeding injury on the body. It is true to suggest that by blunt injury it is meant contusion. I did not find any injury of 20 cms long, it is only surgically injury. Except surgical injury I did not find any injury on the body of the deceased.” 22. From the evidence of PW.9, it is clear that the death was due to peritonitis consequent upon blunt injury to the abdomen and the death was nearly three days after the incident. Peritonitis as defined in medical dictionary is as under: “inflammation of the peritoneum, typically caused by bacterial infection either via the blood or after rupture of an abdominal organ”. 23. In the instant case, the cause of death was due to injury to abdomen. In the instant case, peritonitis, as observed by the Doctor, could be due to injury to abdomen but one thing to be noted here is that the accused never came there on any information furnished. 23. In the instant case, the cause of death was due to injury to abdomen. In the instant case, peritonitis, as observed by the Doctor, could be due to injury to abdomen but one thing to be noted here is that the accused never came there on any information furnished. Further, there was a quarrel prior to the incident, which is evident from the evidence of PW.6 and PW.1. Thereafter, he said to have picked up a pestle, which was lying there and beat on the abdomen of the deceased. Therefore, it cannot be said that the accused came there with an intention to cause the death. If really he had any intention to cause death, he would come there armed with a weapon and even with the pestle, he would have dealt a blow on a vital part of the body. Though the accused beat the deceased on the abdomen, there was no external injury. But the age of the deceased (who was aged about 70 years then) must have hastened his death within couple of days. Having regard to the manner in which the incident took place and nature of injury found, coupled with the fact that the accused never came there armed with a weapon, as is evident from the First Information Report vis-à-vis admission of PW.1 in the cross-examination, we feel that this is a case where the nature of offence can be scaled-down to Section 304 Part-II I.P.C. 24. Hence, the conviction and sentence recorded against the appellant/accused in the judgment dated 07.09.2015 in Sessions Case No.175 of 2013 on the file of the learned Additional Sessions Judge, Hindupur, for the offence punishable under Section 302 I.P.C. is set aside and the appellant is convicted under Section 304 Part-II I.P.C. and sentenced to undergo rigorous imprisonment for a period of seven years. The period of imprisonment already undergone by the appellant/accused as remand prisoner shall be given set off under Section 428 Cr.P.C. Consequently, the appellant/accused shall be set at liberty forthwith on completion of seven years imprisonment, if not required in connection with any other case or crime. With the above modification, the Criminal Appeal is partly allowed. Consequently, miscellaneous petitions, if any, pending shall stand closed.