Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 1410 (AP)

Pelamala Neela Kantam v. State of Andhra Pradesh

2023-10-20

A.V.RAVINDRA BABU

body2023
JUDGMENT : A.V. Ravindra Babu, J. 1. The judgment, dated 30.06.2009, in Sessions Case No. 31 of 2009 on the file of the Court of VII Additional Sessions Judge (Fast Track Court), Visakhapatnam (for short ‘the learned Additional Sessions Judge’), is under challenge in the present Criminal Appeal filed by the appellant, who is the unsuccessful accused. 2. The appellant herein (accused) faced charge under Section 302 of the Indian Penal Code, 1860 (for short ‘the IPC’) pertaining to Crime No. 25 of 2008 of Dumbriguda Police Station, Visakhapatnam. The learned Additional Sessions Judge found the accused guilty of the offence under Section 304 (Part-II) IPC, as against the original charge under Section 302 IPC, convicted him under Section 235(2) Cr.P.C. and sentenced him to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs.1,000/- in default to suffer Rigorous Imprisonment for 1 month. 3. The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court, for the sake of convenience. 4. Sessions Case No. 31 of 2009 arose out of the committal order in Preliminary Registration Case (PRC) No. 4 of 2009 on the file of the Court of Judicial Magistrate of First Class, Araku Valley Chinthapalli (for short ‘the learned Magistrate’) pertaining to Crime No. 25 of 2008 of Dumbriguda Police Station, Visakhapatnam for the offence under Section 302 of IPC. 5. The case of the prosecution, in brief, according to the contents of the charge sheet, as above, is that on 11.07.2008 morning Pujari Bassu (hereinafter referred to as ‘the deceased’), son of Jalandar (late), went to Araku Santha (weekly shandy) along with LW-1 - Pujari Lavakusa, his son, for purchasing essential commodities. After completion of their work, LW-1 and LW-5 - Chattu Appala Raju along with the deceased stood at an auto stand, nearby Araku approach mud road at Girijan Co-operative Corporation (GCC) godown. At 12:00 noon, accused came to the deceased and asked him to give money for consumption of alcohol. The deceased refused to give money for his consumption of alcohol. Due to which, the accused grew wild, took a long stick, broken it and beat the deceased indiscriminately on his right neck, head, throat and mouth with an intention to kill him on account of which, the deceased collapsed with bleeding injuries. On seeing the incident, LW-1 raised cries. The deceased refused to give money for his consumption of alcohol. Due to which, the accused grew wild, took a long stick, broken it and beat the deceased indiscriminately on his right neck, head, throat and mouth with an intention to kill him on account of which, the deceased collapsed with bleeding injuries. On seeing the incident, LW-1 raised cries. On hearing the cries of LW-1, LWs. 5 to LW-10 viz. Chattu Appala Raju, Poli Raju, Shavukari Trinadh Rao, Kotiyada Sanyasamma, Rapaka Pothayya and Poddu Bota Dev rushed to the spot and witnessed the occurrence. LWs. 1 to LW-5 viz. Pujari Lavakusa, Pujari Gummanna, Pujari Damodar, Pujari Manaka and Chattu Appala Raju shifted the deceased to Community Health Center (CHC), Araku Valley and on the way, the deceased succumbed to injuries. On 11.07.2008 at 07:00 p.m., on the basis of the report given by LW-1, LW-20 - M. Eliea Babu, Inspector of Police registered the FIR in Crime No. 25 of 2008 for the offence under Section 302 IPC and took up investigation. During further investigation, he visited the scene of offence on 12.07.2008 at 06:00 a.m., examined the scene of offence, prepared scene observation report and seized the stick and soil with blood stains and control earth under the cover of observation report, attested by LW-13 and LW-14 viz. G. Devaraj and Mukkai Satyanarayana. He prepared rough sketch of the scene of offence and got photographed the same through LW-15 - Bhupathi Lenin Raju, photographer. He conducted inquest over the dead body of the deceased in the presence of LW-11 and LW-12 viz. Buridi Guru Naidu and Buridi Dasaradh and others. He forwarded the dead body to the post-mortem examination. During the post-mortem examination, he seized the apparels of the deceased and they were forwarded to the Chemical Analyst. During inquest, he examined 5 witnesses and recorded their 161 Cr.P.C. statements. On 13.07.2008, he examined LWs. 6 to LW-10 and recorded their statements. He arrested the accused on 12.07.2008 and sent him for remand. On 28.07.2008, LW-16 - Dr. M.V. Sudhakar, Medical Officer, CHC, Araku Valley, issued post-mortem report opining that the deceased died due to cardio respiratory arrest secondary to massive haemorrhage due to lacerated injuries of the great vessel of right side of the neck. On 28.07.2008, the Inspector of Police forwarded the Material Objects to RFSL, Visakhapatnam for chemical analysis. On 28.07.2008, LW-16 - Dr. M.V. Sudhakar, Medical Officer, CHC, Araku Valley, issued post-mortem report opining that the deceased died due to cardio respiratory arrest secondary to massive haemorrhage due to lacerated injuries of the great vessel of right side of the neck. On 28.07.2008, the Inspector of Police forwarded the Material Objects to RFSL, Visakhapatnam for chemical analysis. On 12.12.2008, LW-17 - N. Adinarayana, Assistant Director, RFSL, Karasa, Visakhapatnam issued chemical analysis report opining that the bloodstains are found on all the material objects except control earth. Hence, the charge sheet. 6. The learned Magistrate, Araku took cognizance of the case for the offence under Section 302 IPC. After appearance of the accused and after completing the formalities under Section 207 Cr.P.C. the learned Magistrate committed the case to the Court of Sessions under Section 209 Cr.P.C. Thereafter, it was numbered as S.C. No. 31 of 2009 and made over to the Court of learned Additional Sessions Judge for disposal in accordance with law. 7. After appearance of the accused before the learned Additional Sessions Judge, Visakhapatnam, a charge under Section 302 IPC was framed and explained to the accused in Telugu, for which he pleaded not guilty and claimed to be tried. 8. The prosecution, in order to establish the guilt against the accused, examined PWs. 1 to PW-9 and marked Exs.P-1 to P-12 and MOs.1 to MO.3. 9. After closure of the evidence of the prosecution, accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which he denied the same and he did not let any defence evidence. 10. The learned Additional Sessions Judge, after conclusion of trial, on hearing both sides and after considering the oral and documentary evidence on record, found the accused guilty of the offence under Section 304 (Part-II) IPC, as against the original charge under Section 302 IPC, and convicted him under Section 235(2) Cr.P.C. for the offence under Section 304 (Part-II) IPC. After questioning him about the quantum of sentence, the learned Additional Sessions Judge sentenced the accused to suffer Rigorous Imprisonment for 10 years and to pay a fine of Rs.1,000/- in default to suffer Rigorous Imprisonment for 1 month. 11. After questioning him about the quantum of sentence, the learned Additional Sessions Judge sentenced the accused to suffer Rigorous Imprisonment for 10 years and to pay a fine of Rs.1,000/- in default to suffer Rigorous Imprisonment for 1 month. 11. Felt aggrieved of the same, the un-successful accused filed the present Appeal challenging the judgment of the learned Additional Sessions Judge in convicting him under Section 304 (Part-II) IPC. 12. Though the prosecution has alleged the offence under Section 302 IPC but there is no Appeal filed by the prosecution as against the finding of the trial Court that the charge under Section 302 IPC was not established by the prosecution. So, as there is no Appeal filed by the prosecution challenging the finding of the trial Court that the case under Section 302 IPC is not made out, the scope of this Appeal is confined only to decide whether the prosecution before the Court below proved the offence under Section 304 (Part-II) IPC against the accused. 13. Now, in deciding this Appeal, the points that arise for consideration are: (1) Whether the prosecution before the trial Court proved that, on 11.07.2008 around 12:00 noon at Araku shandy, accused attacked the deceased with a stick and caused his death? (2) Whether the impugned judgment in convicting the accused under Section 304 (Part-II) IPC is sustainable under law and facts and whether are any grounds to interfere with the conviction recorded by the learned VII Additional Sessions Judge (FTC), Visakhapatnam? (3) To what relief? Point Nos. 1 & 2: 14. The accused is defended by Sri A. Rama Krishna, legal aid counsel. Learned legal aid counsel for the appellant would contend that basing on the interested testimony of PW-1 and basing on the evidence of PW-2 and PW-3, who are also close followers of PW-1, the learned Additional Sessions Judge convicted the accused. Accused had no previous criminal record. There was inconsistency between the evidence of direct witnesses. Simply because the deceased refused to give certain amount to the accused for consumption of alcohol, accused would not have gone to the extent of beating the deceased indiscriminately so as to cause his death. There were no prior disputes between the accused and the deceased and in such circumstance accused had no intention at all to cause the death of the deceased. There were no prior disputes between the accused and the deceased and in such circumstance accused had no intention at all to cause the death of the deceased. PW-4, the so called direct witness to the occurrence, did not support the case of prosecution. In spite of various discrepancies in the evidence of PWs. 1 to PW-3, the learned Additional Sessions Judge believed their evidence and erroneously convicted the accused. Accused had no intention to cause death of the deceased. According to him, the defence of the accused is that, he was not at all present at the scene and he was not responsible for the death. Even the evidence on record would not prove the intention against the accused. On erroneous appreciation of the evidence on record, the learned Additional Sessions Judge convicted and sentenced the accused. The sentence imposed against the accused for a term of 10 years is nothing but harsh. He would further submit that, in the event of dismissal of the Criminal Appeal for any valid reason, the sentence imposed against the appellant may be reduced and presently the appellant is aged about 50 years. 15. Sri Y. Jagadeeswara Rao, learned Special Assistant, representing learned Public Prosecutor, would contend that PW-2 and PW-3, who are the independent witnesses, clearly supported the case of prosecution. The evidence of PW-1 has corroboration from Ex.P-1 and has further corroboration from PW-2 and PW-3. The medical evidence is in favour of the case of prosecution. The defence of the accused is nothing but denial. PW-2 and PW-3 have no reason to depose false against the accused. The learned Additional Sessions Judge with valid reasons found the accused guilty of the offence as such the Appeal is liable to be dismissed. 16. PW-1 is no other than the son of the deceased. PW-2 and PW-3 are projected as direct witnesses to the occurrence. PW-4 did not support the case of prosecution. PW-5 is the inquest panchayatdar and PW-6 is the mahazar witness to the observation of scene of offence. PW-7 is the Medical Officer who conducted autopsy over the dead body of the deceased. PW-8 is the Assistant Director, RFSL, Visakhapatnam. PW-9 is the Investigating Officer. 17. The evidence of PW-1, son of the deceased, is that on 11.07.2008, they started at 07:00 a.m. from their house. PW-7 is the Medical Officer who conducted autopsy over the dead body of the deceased. PW-8 is the Assistant Director, RFSL, Visakhapatnam. PW-9 is the Investigating Officer. 17. The evidence of PW-1, son of the deceased, is that on 11.07.2008, they started at 07:00 a.m. from their house. As there was no travel facility, they were going by walk to reach Araku shandy. They used to go to Araku Valley by walk and from there in an auto. They reached the shandy at about 10:00 a.m. and after purchasing the provisions in the shandy, they stood up at about 12:30 p.m. in the auto stand to return to their village. Then the accused came and asked his father for money of Rs.20/-. His father admonished him that every time he used to ask money and stated that there is no money with him. Then the accused went away and pulled one stick from the gudisa (hut) of shandy. Accused beat his father on the head, neck and mouth and other parts. Then, he raised loud cries. Persons who were there in the shandy came there and one Police also came there. His father fell on the ground. Then, they called one auto. He, villagers and his relatives shifted his father to Government Hospital, Araku. On the way, his father died. Then, they kept the dead body in the Government Hospital and later he informed to his family members. Then, he proceeded to Araku Police Station, drafted a report and gave it to Police. Ex.P-1 is the report. He was also present at the time of inquest. 18. PW-2 is direct witness to the occurrence. He deposed that he knows the accused and the deceased who belongs to his village. On that day, after purchasing provisions in the shandy, he waited for an auto to return to Valley. At about 12:00 noon the accused asked money. Then, the deceased admonished him that everyday he was asking for money. Then, the accused picked up a stick and beat the deceased. Then the deceased fell down. The said stick was broken. Then, he picked up the two broken stick pieces and beat the deceased on his neck, mouth and other parts. Police came there, caught hold of the accused and shifted the deceased in an Auto to Government Hospital, Araku. But he died on the way. He accompanied the deceased in an Auto. The said stick was broken. Then, he picked up the two broken stick pieces and beat the deceased on his neck, mouth and other parts. Police came there, caught hold of the accused and shifted the deceased in an Auto to Government Hospital, Araku. But he died on the way. He accompanied the deceased in an Auto. At the time of incident, he was standing nearby the deceased. Witness identified the stick, which was marked as MO.1. 19. PW-3 is another direct witness to the occurrence. He deposed that he knows the accused and the deceased. On 11th day, he went to shandy to purchase provisions and after purchasing provisions, he reached to the auto stand. Then the accused and the deceased were there. The accused asked the deceased for money for arrack. Then the deceased replied that he had no money. Accused brought one stick and beat the deceased on his head and neck. Deceased fell down. PW-1, Police and others shifted the deceased in an Auto and carried him to the Government Hospital and on the way, the deceased died. He was also present at the time of inquest. 20. PW-4 did not support the case of prosecution. According to him, about 10 months ago, the incident occurred. He does not know the accused. He saw the deceased when he was being taken to Hospital. He came to know that there was a quarrel. Prosecution got marked his 161 Cr.P.C. statement by way of confrontation, which is Ex.P-4. 21. PW-5 is the inquest panchayatdar who deposed that at the time of conducting inquest over the dead body of the deceased on 12.07.2008 at Government Hospital, Araku he was physically present. They opined that due to the injuries caused by the accused the deceased died. Ex.P-3 is the inquest report. 22. PW-6, VRO, Araku is the mahazar witness for observation of the scene of offence. He deposed that on 12.07.2008 at 12:00 noon, Police requested him to act as mediator. They seized blood stained earth and control earth. Scene observation report was prepared at his office. Ex.P-4 is the scene observation report. 23. PW-7 is the Medical Officer, who conducted autopsy over the dead body of deceased, and his evidence is that on 12.07.2008, he conducted post-mortem examination over the dead body of deceased at 11:00 a.m. and found the following injuries: “1. Scene observation report was prepared at his office. Ex.P-4 is the scene observation report. 23. PW-7 is the Medical Officer, who conducted autopsy over the dead body of deceased, and his evidence is that on 12.07.2008, he conducted post-mortem examination over the dead body of deceased at 11:00 a.m. and found the following injuries: “1. Small deep lacerated wound of 2 CMs length horizontally placed over lower margin of right side mandible with no active bleeding. 2. Blackish brown dark contusion over right side of neck and extending to centre of neck of 7 x 7 CMs size. 3. 5 x 5 CMs swelling over angle of the mandible of right side. No bleeding of the contusion. On exploring it contains clot of 5 x 5 CMs with no fracture of mandible.” He further spoke about the internal injuries. He issued post-mortem report. Ex.P-5 is the post-mortem report. MO-1 can cause injury to the deceased. Cause of death is due to cardio respiratory arrest secondary to massive haemorrhage due to lacerated injury of great vessels of right side of neck. 24. PW-8 is the Assistant Director of RFSL, Visakhapatnam. He deposed that he examined all the Material Objects 7 in number. He found human blood on Item Nos.1 to 5 and 7. He issued Ex.P-6 - RFSL report. 25. PW-9 is the Investigating Officer, who deposed that on 11.07.2008 at about 19:00 hours, PW-1 came to Police Station and presented a report basing on which, he registered the same as a case in Crime No. 25 of 2008 for the offence under Section 302 IPC and he sent original FIR along with report to Court at Araku and submitted copies of FIR to all the concerned. Then, he examined PW-1 in Police Station. On 12.07.2008, he proceeded to the scene of offence, observed the same and prepared rough sketch of the scene. He drafted scene observation report. He seized stick, bloodstained earth and control earth in the presence of two mediators and drafted mediators report. He proceeded to the Government Hospital, Araku and secured witnesses LWs. 1 to LW-5, examined and recorded their statements. He secured the panchayatdars and conducted inquest over the dead body of the deceased in their presence. On the same day at 09:30 p.m., he arrested the accused at bus stand and sent him to judicial custody. On 13.07.2008, he proceeded to Araku shandy, secured LWs. 1 to LW-5, examined and recorded their statements. He secured the panchayatdars and conducted inquest over the dead body of the deceased in their presence. On the same day at 09:30 p.m., he arrested the accused at bus stand and sent him to judicial custody. On 13.07.2008, he proceeded to Araku shandy, secured LWs. 6 to LW-10 and recorded their statements. On 28.07.2008, he received postmortem report and sent the Material Objects to RFSL, Visakhapatnam. On 12.12.2008 after receipt of RFSL report, he filed charge sheet against the accused on 19.12.2008. Ex.P-7 is the FIR. Ex.P-8 is the mediators report dated 12.07.2008. Ex.P-9 is the rough sketch of the scene of offence. Exs.P-10 to P-12 are the photographs. MO.2 is the control earth and MO.3 is bloodstained earth. 26. As seen from Ex.P-1, which is the report lodged by PW-1 to the Inspector of Police, it reads in substance as if that on 11.07.2008 morning he along with his father went to Araku shandy to purchase provisions and they could complete purchase and when they were standing at auto stand, accused came there and demanded his father to pay money to consume liquor and when his father refused to do so, accused brought a big stick and beat his father on the head, neck, throat and mouth of his father with force. Due to the severe bleeding injuries, his father fell on ground and on hearing his cries, others came there and when he was being shifted to Araku Hospital, he died. 27. The evidence of PW-1 has corroboration from the contents of Ex.P-1. Coming to the evidence of PW-1 in cross-examination, nothing is elicited to disbelieve his evidence. He deposed in cross-examination that the distance between auto stand and shandy is very nearer. He stated to Police that accused pulled the stick from a hut. No wordy altercation took place between his father and the accused. He was very nearer to his father when the accused met his father. The hut from which the accused pulled the stick was backside of his father. Accused beat his father from backside. After his father fell down, accused beat his father on neck and mouth. He denied that accused never committed any offence, never talked with his father, did not ask any amount and that he did not beat his father. He denied that he is deposing false. 28. Accused beat his father from backside. After his father fell down, accused beat his father on neck and mouth. He denied that accused never committed any offence, never talked with his father, did not ask any amount and that he did not beat his father. He denied that he is deposing false. 28. During cross-examination of PW-2, he deposed that the accused picked up MO.1 from a shandy hut. The auto stand and the hut, from which MO.1 was pulled, are at a distance of 20 feet. He denied that he was not present by the side of deceased and there is no possibility for him to hear any cries and that he is deposing false. 29. During cross-examination, PW-3 deposed that he did not see from which place accused brought the stick. He did not interfere and rescue the deceased due to fear. He denied that he is deposing false. 30. It is to be noted that during the entire cross-examination of PWs. 1 to PW-3, no omissions or contradictions are elicited. So, absolutely the case of the prosecution as projected in Ex.P-1 report and the evidence of PWs. 1 to PW-3 with regard to the manner in which the incident occurred is consistent throughout. It is to be noted that PW-2 and PW-3 are the independent witnesses to the occurrence. No animosity between PW-2 and PW-3 with the accused was elicited or suggested to them during their cross-examination. They withstood the cross-examination. PW-2 and PW-3 were also the persons who were present at the time of shandy at the time of incident. They noticed the deceased and the accused because they belong to his village. So, the presence of PW-2 and PW-3 at the time of occurrence is fully established by the prosecution. They have no reason to depose false against the accused. 31. In my considered view, the testimony of PW-1 has cogent support from the evidence of PW-2 and PW-3, independent witnesses. The medical evidence is supporting the manner of attack made by the accused on the deceased. 32. PW-5 is the inquest panchayatdar. PW-6 is the mahazar witness for the seizure of MO.1 from the place and observation of the scene of offence. PW-9 is the Investigating Officer, who deposed about the investigation conducted by him as pointed out. The medical evidence is supporting the manner of attack made by the accused on the deceased. 32. PW-5 is the inquest panchayatdar. PW-6 is the mahazar witness for the seizure of MO.1 from the place and observation of the scene of offence. PW-9 is the Investigating Officer, who deposed about the investigation conducted by him as pointed out. During cross-examination, PW-9 confirmed that on 12.07.2008 he proceeded to the scene of offence i.e. Araku shandy at 06:00 a.m. He denied that MO.1 was not seized from the scene of offence and it was planted. He denied that his investigation is not correct. Nothing was suggested to PW-6, mahazar witness, that MO.1 stick was planted. Absolutely, PW-6 had no necessity to sign Ex.P-4 in the Police Station as suggested to him. The evidence of PWs. 1 to PW-3 proved the manner of attack with MO.1 by the accused over the deceased. The manner of attack has support from the medical evidence. Aforesaid 3 injuries are attributed to the accused in the manner of attack. PW-7 deposed that the cause of death was on account of cardio respiratory arrest secondary to massive haemorrhage due to lacerated injury of great vessels of right side of neck. 33. The prosecution adduced cogent evidence before the trial Court in the form of PWs. 1 to PW-3 and the medical evidence to prove the allegations against the accused. Absolutely, there was no necessity for PW-1 to file a false report against the accused for no fault of him. The evidence of PWs. 1 to PW-3 is fully believable. Simply because PW-4 turned hostile, the case of the prosecution cannot be thrown out. 34. Having regard to the above, this Court is of the considered view that the prosecution before the learned VII Additional Sessions Judge (FTC), Visakhapatnam proved beyond reasonable doubt that on 11.07.2008 at about 12:00 noon the accused, as the deceased refused to pay the amount to consume alcohol, made an attack on the deceased with a stick indiscriminately and caused his death. 35. As against the original charge under Section 302 IPC, the learned Additional Sessions Judge found the accused guilty of the offence under Section 304 (Part II) IPC. Admittedly, the incident took place when the deceased refused to pay money to the accused, in a spur of moment. 35. As against the original charge under Section 302 IPC, the learned Additional Sessions Judge found the accused guilty of the offence under Section 304 (Part II) IPC. Admittedly, the incident took place when the deceased refused to pay money to the accused, in a spur of moment. The evidence on record reveals that the accused had no intention to kill the deceased but by beating the deceased with stick indiscriminately on vital parts of the body, accused would have knowledge that by doing such an act, it is likely to cause his death. In my considered view, the learned Additional Sessions Judge rightly found the accused guilty for the offence of culpable homicide not amounting to murder as against the original charge under Section 302 IPC. 36. Turning to the contention of learned counsel for the appellant, that in the event of dismissal of the Appeal for any valid reason, the sentence may be reduced, this Court is of the considered view that there is no dispute that presently the appellant is aged about 50 years. This Appeal has been pending since the year 2009. As pointed out, the evidence on record shows that the accused must have knowledge that his act is likely to cause death though he had no intention to cause death. It appears that the learned Additional Sessions Judge imposed the maximum sentence of 10 years. However, having regard to the present age of the appellant and the weapon used by him, I am of the considered view that the ends of justice will meet if the sentence imposed against the appellant is reduced to 7 years. 37. With the above said modification, the Criminal Appeal is liable to be allowed in part while maintaining the fine imposed against the accused but by modifying the default clause as that of Simple Imprisonment from Rigorous Imprisonment. Point No. 3: 38. In the result, the Criminal Appeal is allowed in part modifying the Rigorous Imprisonment of 10 years imposed against the appellant/accused in Sessions Case No. 31 of 2009, dated 30.06.2009, on the file of the Court of VII Additional Sessions Judge (Fast Track Court), Visakhapatnam to that of 7 years. The fine imposed against the accused is maintained and the default sentence should be Simple Imprisonment instead of Rigorous Imprisonment. The rest of the judgment in all other aspects stands confirmed. 39. The fine imposed against the accused is maintained and the default sentence should be Simple Imprisonment instead of Rigorous Imprisonment. The rest of the judgment in all other aspects stands confirmed. 39. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court including the trial Court record, if any, to the trial Court on or before 30.10.2023 and on such certification, the trial Court shall take necessary steps to carry out the remaining sentence imposed against the appellant/accused in S.C. No. 31 of 2009, dated 30.06.2009, and to report compliance to this Court. A copy of this judgment be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry. 40. Consequently, Miscellaneous Applications pending, if any, shall stand closed.