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2023 DIGILAW 349 (AP)

Chukka Kantha Rao, Krishna Dist. v. P. P. , Hyd.

2023-02-09

C.PRAVEEN KUMAR, VENKATA JYOTHIRMAI PRATAPA

body2023
JUDGMENT : C.Praveen Kumar, J. Accused Nos.1 and 2 in Sessions Case No.424 of 2012 on the file of the learned XV Additional District and Sessions Judge, Nuzvid are the appellants herein. They were tried for the offence punishable under Section 302 read with 34 IPC for causing the death of one Polimetla Sobhan Babu (hereinafter, referred to as “the deceased”) on 26.03.2009 at 7.45 p.m. at the house of A-1 at Kanumolu Village, Bapulapadu Mandal. 2. Vide judgment, dated 09.06.2016, the learned Sessions Judge convicted A-1 and A-2 for the offence punishable under Section 302 read with 34 IPC and accordingly, sentenced them to suffer imprisonment for life and to pay fine of Rs.5,000/- each, in default of payment of fine, to suffer simple imprisonment for a period of one month each. 3. The facts in issue are as under:- P.W.2 is the wife of the deceased. A-1 and the deceased are neighbours and known to each other. P.Ws.4 to 6 are said to be the residents of Kanumolu Village, Bapulapadu Mandal. On 26.03.2009, at about 2.00 p.m., the daughter of A-1 by name Sukanya pulled some creepers from the fencing of the house of P.W.2 for which, P.W.2 scolded the girl. Later, she went away and informed A-1. A-1 grew wild and came to the house of P.W.2 in the afternoon along with his daughter, quarreled with P.W.2 and also abused her in filthy language. The deceased was not present in the house at that time. A-1 abused P.W.2 stating that she could not conceive children and he would help her in producing children. In the evening after 7.00 p.m., the deceased came to his house by which time, quarrel between P.W.2 and A-1 was continuing. Then, A-1 and A-2 took the deceased to the house of A-1, which is situated nearby the house of the deceased, where A-2 is alleged to have caught hold of both the hands of the deceased by holding them to the back side of his body. Then, A-1 hit the deceased on the head with a spear. Thereafter, A-2 hit the deceased on the back side with a stick used to cut grass. A-1 and A-2 beat the deceased with the above instruments on head and shoulders for which, the deceased fell down after sustaining injuries. There was heavy bleeding to the deceased. Then, A-1 hit the deceased on the head with a spear. Thereafter, A-2 hit the deceased on the back side with a stick used to cut grass. A-1 and A-2 beat the deceased with the above instruments on head and shoulders for which, the deceased fell down after sustaining injuries. There was heavy bleeding to the deceased. At that time, P.W.2, Prakash and Katamala Moshe were present. Immediately, they shifted the injured in an auto belonging to one Kiran to Eluru Government Hospital and admitted him there. Thereafter, he was shifted to Global Hospital, Vijayawada on the advise of the Doctors. After admitting the injured in Global Hospital, Vijayawada, the injured died at 2.30 a.m. on 27.03.2009. Law was set into motion by lodging a report with P.W.11 – Sub Inspector of Police, Hanuman Junction Police Station, which came to be registered as a case in Crime No.51 of 2009 for the offence punishable under Section 302 read with 34 I.P.C. Ex.P-10 is the F.I.R. P.W.12 – Inspector of Police, Hanuman Junction Circle, who took up investigation from P.W.11, visited the scene of offence at Kanumolu Village, at the house of A-1 and noticed blood stained steel bowls and blood stained earth. After observing the scene of offence, he prepared a Scene Observation Report in the presence of P.W.9 and one Nani Babu. Ex.P-6 is the Scene Observation Report. He also prepared a rough sketch of the scene of offence, which is marked as Ex.P-11. From the scene, he visited Global Hospital, Vijayawada where he conducted inquest over the dead body of the deceased in the mortuary of the hospital and prepared a report in the presence of witnesses. Ex.P-5 is the Inquest Report. After conducting inquest, he sent the body for post mortem examination. P.W.10, who was working as an Associate Professor, Department of Forensic Medicine, Siddhartha Medical College, Vijayawada, conducted autopsy over the dead body of the deceased and issued Ex.P-9 – Post Mortem Certificate. The Doctor noticed two injuries and according to him, the cause of death of the deceased was due to head injury and its complications. On 31.03.2009, basing on the information received, P.W.12 went to Kanumolu Village and arrested A-1 and A-2 in the hotel i.e., a small thatched hotel. Their confessional statements were recorded separately. The Doctor noticed two injuries and according to him, the cause of death of the deceased was due to head injury and its complications. On 31.03.2009, basing on the information received, P.W.12 went to Kanumolu Village and arrested A-1 and A-2 in the hotel i.e., a small thatched hotel. Their confessional statements were recorded separately. The confession made by A-2 lead the police to his house from where M.Os.1 and 2 – spear and stick respectively, which were used in commission of offence and confined in bushes, were recovered under Ex.P-8. After collecting all the necessary documents, a charge sheet came to be filed, which was taken on file as P.R.C.No.23 of 2009 on the file of the learned Additional Judicial Magistrate of First Class, Nuzvid. 4. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to them. As the offence is triable by a Court of Sessions, the case was committed to the Court of Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned XV Additional District and Sessions Judge, Krishna at Nuzvid for trial and disposal in accordance with law. 5. Basing on the material available on record, charge, 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. 6. To substantiate its case, the prosecution examined P.Ws.1 to 12 and got marked Exs.P-1 to P-14 and M.Os.1 to 3. No oral or documentary evidence was adduced on behalf of the accused. 7. After the closure of 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. Out of twelve witnesses examined by the prosecution, P.Ws.1, 3 and 7 did not support the prosecution case and were treated hostile by the prosecution. 8. Believing the evidence of the eye witnesses, the learned Sessions Judge convicted A-1 and A-2 and sentenced them, as stated supra. Challenging the same, the present appeal came to be filed by A-1 and A-2. 9. 8. Believing the evidence of the eye witnesses, the learned Sessions Judge convicted A-1 and A-2 and sentenced them, as stated supra. Challenging the same, the present appeal came to be filed by A-1 and A-2. 9. Smt A. Gayatri Reddy, learned counsel for the appellants/A-1 and A-2, mainly submits that though the prosecution has examined P.Ws.2 and 4 to 6 as eye witnesses to the incident, but there are number of circumstances to indicate that they have not witnessed the occurrence. She took us through the evidence of all these witnesses to show that each of the witness gave a different version in their evidence with regard to the manner in which the incident occurred and as such, pleads that their presence at the scene of offence is doubtful. She further submits that when so many witnesses claim to have witnessed the incident, it is strange as to why no one interfered when the deceased was being assaulted, more so, when all of them are related to the deceased. Having regard to the manner in which the investigation is done and the endorsement made in the register at the hospital that a group of persons have attacked, she would contend that these two accused are innocent of the incident and that the incident occurred in total different circumstances. 10. On the other hand, Sri S. Dushyanth Reddy, learned Additional Public Prosecutor, opposed the same contending that though there are slight variations in the evidence of P.Ws.2 and 4 to 6 with regard to the manner in which the incident happened, but their presence at the scene of offence cannot be doubted. According to him, they are natural witnesses whose houses are situated at the scene of offence and as such, they witnessing the incident cannot be doubted. He further submits that the minor discrepancies in the evidence of these four witnesses do not go to the root of the matter, more so, when the attack on the deceased is consistent in all aspects. He would further submit that these witnesses are in no way related to P.W.2 or the deceased and hence, interfering with the incident, as urged by the learned counsel for the appellants, does not arise. 11. He would further submit that these witnesses are in no way related to P.W.2 or the deceased and hence, interfering with the incident, as urged by the learned counsel for the appellants, does not arise. 11. In reply, learned counsel for the appellants would submit that since each of the accused has inflicted a single blow, the nature of offence may be scaled down to Section 304 Part-I I.P.C. In other words, her argument appears to be that if really there was any intention for the accused to kill the deceased, they would have inflicted more number of injuries on the body of the deceased and as such, pleads for scaling down of the offence. 12. The point that arises for consideration is:- “Whether the prosecution has proved the guilt of A-1 and A-2 for the offence punishable under Section 302 read with 34 I.P.C. beyond all reasonable doubt?” 13. POINT:- As seen from the record, PW2 is the wife of the deceased while PWs. 4,5 & 6 speak about the incident in question. The evidence of PW 2 would show that the deceased is her husband. On the fateful day, daughter of A1 by name Sukanya pulled some creepers from the fencing of the house of PW2, to which PW2 chastised her. Later daughter of A1 went away and informed A1 about the same. A1 grew wild and came to the house of PW2 accompanied by his daughter -Sukanya and quarrelled with PW2 apart from abusing her in filthy language. At that time, the deceased was not present in the house. At about 07:00 PM deceased came to the house by which time the quarrel between PW2 and A1, which started in the afternoon, is said to be continuing. It is said that A1 & A2 took the deceased to the house of A1, which is situated near the house of PW2 and deceased, and thereafter A2 caught hold of both the hands of the deceased by holding to the back side of his body and then A1 hit the deceased on the head with a spear and A2 hit the deceased on the back side with a stick, which is used to cut grass. In other words, both the accused beat the deceased with the above instruments on his head and shoulder. There was heavy bleeding and the deceased fell down. In other words, both the accused beat the deceased with the above instruments on his head and shoulder. There was heavy bleeding and the deceased fell down. PW3 and one Prakash shifted the injured in an Auto belonging to one Kiran (not examined) to Eluru Government hospital. On the advise of Doctors at Eluru, the deceased was shifted to Global hospital, Vijayawada. However the deceased died on 27.03.2009 at about 02:30 AM. PW2 was cross examined at length but nothing incriminating came to be elicited to discard her evidence. All the suggestions given with regard to the manner in which the incident took place and the presence of the accused at the scene were denied. It was elicited that the injuries on the deceased were caused with weapons like MOs.1 & 2. 14. From the evidence of this witness, it stands established that there was a quarrel between the daughter of A1 and PW2 when daughter of A1 plucked creepers from the fencing of the house of PW2. When the same was informed to A1 by his daughter, A1 came over to the house of PW2 and quarreled with PW2 by using filthy language. The quarrel between PW2 and A1 continued till evening and at 07:00 PM when the deceased returned home, both the accused caught hold of him, dragged him and thereafter assaulted him leading to his death. 15. PW3, who claims to have taken the deceased to the hospital, did not support the prosecution case and was declared hostile. 16. PW4 was examined as an eyewitness to the incident. According to him, on 26.03.2009 at about 02:00 PM he heard some noise outside his house and on coming out he came to know that daughter of A1 pulled some creepers from the fencing of the house of the deceased and that wife of deceased, PW2, scolded the girl for removing the fencing. On being informed about the same by the daughter of A1, A1 came there and questioned PW2 as to why she has abused his daughter and later left the place. Again at 07:30 PM when the deceased, who was the owner-cum-driver of an auto, was bringing the auto to the house, the same was stopped by A1 and A2. Again there was a quarrel between the accused and deceased. Again at 07:30 PM when the deceased, who was the owner-cum-driver of an auto, was bringing the auto to the house, the same was stopped by A1 and A2. Again there was a quarrel between the accused and deceased. During that quarrel, A1 beat the deceased with the spear on the right side of the head of the deceased and A2 on the back side of the right side shoulder with a stick to which a knife was tied, as a result of which deceased fell down and thereafter both the accused ran away from the spot. According to him, the entire incident took place in front of the house of A1. However, he was also subjected to lengthy cross examination. In the cross examination, he admits that there were never any disputes between accused and deceased at any time and there was no direct quarrel between the deceased and the accused prior to the incident i.e., before stopping the auto on the fateful day. From the evidence of this witness, it can be noticed that there is a slight deviation with regard to the manner in which incident in question occurred. While the fact of quarrel with the daughter of A1 and A1 abusing PW2 being in tune with what PW2 has stated, but insofar as attack on the deceased, his version is that while the deceased was coming to house both the accused stopped him, quarreled with him and in the said quarrel both the accused caused one injury each on the deceased. His evidence also shows that there was no enmity between the accused and deceased at any point of time prior to the incident. 17. PW5 was also examined as an eyewitness to the incident. According to him, after A1 being informed by his daughter that PW2 chastised her for pulling the creepers from the fencing of the house of PW2, A1 is alleged to have gone to the house of PW2 and abused PW2 in filthy language for chastising his daughter. Later at about 07:30 PM deceased came to his house in an auto. At that time A1 came there and took the deceased to his house and questioned as to why PW2 chastised his daughter. Then A1 beat the deceased with a spear on the back side of right ear causing bleeding injury. Later at about 07:30 PM deceased came to his house in an auto. At that time A1 came there and took the deceased to his house and questioned as to why PW2 chastised his daughter. Then A1 beat the deceased with a spear on the back side of right ear causing bleeding injury. Meanwhile A2 also came there and hit the deceased on the shoulder with a knife attached to a stick. In the cross examination, it has been elicited that there are disputes between deceased and A1 previously and that A2 is residing in the house of his brother-in-law though he did not have any own house in the village. He also admits that he has been in the care and custody of the deceased and prosecuting his studies by staying in the house of the deceased. This evidence toes in line to certain extent with the evidence of PWs.2 & 4, but insofar as the incident in question, this witness speaks about A1 alone questioning the deceased and taking him into his house and thereafter beating him with a spear on right ear causing bleeding injury. According to him, after the attack by A1, A2 came and hit the deceased with a knife attached to a stick. 18. PW6 was also examined as an eyewitness to the incident. According to him, on one day, the daughter of A1 was pulling creepers from the fencing of the house of the deceased, to which, PW2, who is the wife of the deceased, chastised her. Then A1 came and quarrelled with PW2 as to why she abused his daughter. Thereafter, in the evening he noticed A2 dragging the deceased to the house of A1 and also noticed A1 hitting the deceased with a spear on the back side of right side ear and A2 beating the deceased with a knife attached to a stick on his shoulder. The evidence of these witnesses is again slightly at variance with the evidence of PW4 since his evidence is to the effect that at about 07:30 PM when the deceased was bringing the auto to his house, A1 & A2 stopped and again there was quarrel between the accused and the deceased and during that quarrel the incident in question took place. Though the evidence of these four witnesses is slightly at variance with each other, but their evidence is consistent with regard to the attack by both the accused over the deceased. Their participation and attack on the deceased gets corroboration from the evidence of the Doctor (PW10) who conducted post mortem examination. In his evidence, he categorically stated about all the injuries on the body of the deceased. It is also to be noted that there are only two injuries on the body of the deceased. 19. Learned counsel for the appellants tried to contend that no reliance can be placed on the evidence of these witnesses as their versions are not consistent with each other. It is no doubt true that there are minor variations in the evidence of these witnesses, who stay around the house of the deceased and the accused. These minor variations, in our view, may not go to the root of the matter so as to disbelieve the entire prosecution case for the reason that the evidence of these four witnesses is consistent with regard to the participation of both the accused. The discrepancy if any would only be as to who dragged the deceased and who attacked the deceased, which discrepancy in our view may not be fatal, in the facts and circumstances of the case, more so, when there are no earlier disputes between the parties and no reason for the witnesses to speak falsehood against the accused. 20. At this stage, Smt Gayatri Reddy, learned counsel for the appellants would contend that even accepting the entire case to be true, it will not amount to an offence punishable under Section 302 read with 34 IPC. 21. From a perusal of the evidence referred to above, it is clear that there was no enmity between the accused and the deceased or between the accused and PW2 prior to the incident. A petty quarrel ensued when daughter of A1 tried to pluck creepers from the fencing of the house of the deceased. When the daughter of A1 informed A1 about PW2 chastising her, A1 went and questioned and also abused PW2 in filthy language. A petty quarrel ensued when daughter of A1 tried to pluck creepers from the fencing of the house of the deceased. When the daughter of A1 informed A1 about PW2 chastising her, A1 went and questioned and also abused PW2 in filthy language. It appears from the evidence of all the witnesses that in the evening at about 07:00 or 07:30 PM, when the deceased returned home with the auto, he was stopped by A1 and A2 and questioned about the quarrel between the daughter of A1 and PW2 and pursuant to the quarrel, the accused beat the deceased with a spear and stick attached with a knife. Each one of them is said to have dealt one blow each on the deceased. 22. The version that deceased was dragged into the house of A1 is not consistent. Only PW2 refers to the said fact. Though the evidence of PW2 speaks about dragging the deceased but the evidence of other witness indicate that the deceased was taken into the house of A1. However blood was found in front of the house of A1, as the evidence of witnesses show that the incident took place in front of the house of A1 which could be either outside the varendah or outside the compound wall. Further incident is preceded by a quarrel pursuant to which the deceased was dragged into the house. In the absence of any enmity between the deceased and the accused and as both the accused gave single blow each, by picking up the weapons lying there, we feel that it is a fit case to hold that it was culpable homicide not amounting to murder but with an intention of causing death or bodily injury likely to cause death. As observed by the Hon’ble Supreme Court in catena of judgments, it is not the number of blows which decide as to whether an offence amounts to culpable homicide amounting to murder, but the circumstances under which the incident took place has to be looked into. 23. As observed by the Hon’ble Supreme Court in catena of judgments, it is not the number of blows which decide as to whether an offence amounts to culpable homicide amounting to murder, but the circumstances under which the incident took place has to be looked into. 23. Taking into consideration the manner and the circumstances in which the incident took place, we feel that it is a fit case where the accused can be convicted under Section 304 Part-I I.P.C. Hence, the nature of offence is altered from Section 302 read with 34 I.P.C. to Section 304 Part-I read with 34 I.P.C. and the sentence of imprisonment is reduced to eight (8) years while confirming the fine imposed. 24. In the result, the conviction and sentence recorded by the learned XV Additional Sessions Judge, Nuzvid vide judgment, dated 09.06.2016, in Sessions Case No.424 of 2012 against the appellants/accused of the offence punishable under Section 302 read with 34 I.P.C. are set aside. However, the appellants/accused are found guilty of the offence punishable under Section 304 Part-I read with 34 I.P.C., and accordingly, they are convicted and sentenced to undergo rigorous imprisonment for a period of eight (08) years while confirming the fine imposed. The period of detention underwent by the appellants/accused during the course of investigation, trial of the case and after conviction shall be given set off under Section 428 Cr.P.C. 25. Accordingly, the Criminal Appeal is partly allowed. Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.