Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 390 (AP)

Gujjala Mouli v. State Of A. P.

2023-02-15

C.PRAVEEN KUMAR, VENKATA JYOTHIRMAI PRATAPA

body2023
JUDGMENT: (C. Praveen Kumar, J.) 1. Accused No. 1 in Sessions Case No. 34 of 2015 on the file of II Additional Sessions Judge, Parvatipuram, is the Appellant herein. Originally, Accused No.1 along with two [02] others were tried for the offence punishable under Section 302 of Indian Penal Code [‘I.P.C.’]. By its Judgment, dated 19.08.2016, the learned Sessions Judge, while acquitting Accused Nos. 2 and 3, convicted Accused No. 1 and sentenced him to suffer rigorous imprisonment for life for the offence punishable under Section 302 of I.P.C. and to pay fine of Rs.1,500/-in default to undergo rigours imprisonment for a period of three months. 2. The gravamen of the charge against the Accused is that, on 26.11.2013 at 5.00 P.M., all the accused caused the death of Gujjala Simhadri [‘deceased’] by beating him with hands and kicking him on his stomach and chest. 3. The facts, in issue, are as under: i) PW1 is the wife; PW2 is the son; PW3 is the elder brother, of the deceased while Accused No. 2 is the mother and Accused No. 3 is the sister of Accused No. 1. The house of the accused and the deceased are situated adjacent to each other and there were disputes between them, with regard to raising of a common wall. ii) On 26.11.2013 at 9.00 A.M., PW1 and deceased went to their fields and returned home at 5.00 P.M. During that period, Accused No. 2 and 3 was laying slab on the joint wall with the help of coolies. At that point of time, PW1 and deceased questioned Accused No. 1 to 3 about laying of a slab on the joint wall without settling the disputes. A quarrel ensued between the accused and deceased. At that point of time, Accused No. 1 came there, abused PW1 in filthy language and threatened to kill her. When the deceased tried to rescue PW1, all the accused fisted the deceased with hands. Thereafter, when the deceased got up, Accused No.1 again kicked the deceased on his chest, side ribs and stomach. On receiving the blows, the deceased fell down and could not get up due to severe pain. When PW1 raised cries, her mother-in-law, by name, Jogamma, came there and gave water to the deceased. Thereafter, when the deceased got up, Accused No.1 again kicked the deceased on his chest, side ribs and stomach. On receiving the blows, the deceased fell down and could not get up due to severe pain. When PW1 raised cries, her mother-in-law, by name, Jogamma, came there and gave water to the deceased. Having regard to the condition of the injured [deceased], 108 ambulance was called and by the time the ambulance came, the deceased died, as such he was not taken to hospital. PW1 is said to have informed relatives at 8.30 P.M. On receipt of phone call, police also arrived at the scene, where PW1 lodged a report [ExP5]. iii) PW11 – Sub-Inspector of Police, Seethanagaram Police Station, registered a case in Crime No. 140 of 2013 basing on Ex.P5 for the offence punishable under Section 302 I.P.C. Ex.P6 is the First Information Report. Further investigation, in this case, was taken up by PW13, who on receipt of Ex.P6 [F.I.R.], proceeded to the scene of offence. At the scene, he conducted scene observation proceedings in the presence of mediators. Ex.P2 is the scene observation report. He also got prepared a rough sketch of the scene under Ex.P8 and got photographed the scene of offence through PW10 under Ex.P5. Thereafter, he conducted inquest over the dead body in the presence of PW9. Ex.P3 is the inquest report. The mediators examined at the time of inquest opined that, the accused beat the deceased with hands. After conducting inquest, the body was sent for postmortem examination. iv) PW12 – Civil Assistant Surgeon, Community Health Center, conducted autopsy over the dead body and issued Ex.P7 – the post-mortem certificate. According to him, the cause of death was due to cardio respiratory arrest due to massive internal haemorrhage; due to fracture of right four lower ribs causing liver laceration due to internal bleeding. v) While things stood thus, Accused No. 1 to 3 went to Tahsildar Office and confessed about the commission of offence. The statements of the accused were recorded by PW7 and PW8 under Ex.P1. Thereafter, PW7 and PW8 handed over the accused to PW13 [Inspector of Police], who remanded them to judicial custody. After deleting the name of one Gujjala Naresh, a charge-sheet came to be filed, which was taken on file as P.R.C. No. 10 of 2014 on the file of Additional Judicial Magistrate of First Class, Bobbili. 4. Thereafter, PW7 and PW8 handed over the accused to PW13 [Inspector of Police], who remanded them to judicial custody. After deleting the name of one Gujjala Naresh, a charge-sheet came to be filed, which was taken on file as P.R.C. No. 10 of 2014 on the file of Additional Judicial Magistrate of First Class, Bobbili. 4. 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 same was committed to Court of Sessions 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, to which, the Accused pleaded not guilty and claimed to be tried. 5. In support of its case, the prosecution examined PW1 to PW13 and got marked Ex.P1 to Ex.P8. After completion 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 prosecution witnesses, to which they denied, however, no evidence was adduced in support of their plea. 6. Believing the evidence of PW1, PW4 and PW6, the learned Sessions Judge convicted Accused No.1 while acquitting Accused No. 2 and 3 for the offence punishable under Section 302 I.P.C. Against this conviction, the present Appeal is filed by Accused No. 1. 7. (i) Sri.T. Nagarjuna Reddy, learned Counsel appearing for the Appellant/Accused No.1, mainly submits that, there are number of circumstances to indicate that neither PW4 nor PW6 were present at the scene of offence. He submits that, if they were present at the scene, nothing prevented them to refer their names in the First Information Report or at-least at the time of the inquest. Since, they came forward as eye witness, long after the incident, pleads that, no reliance can be placed on the said evidence. (ii) Insofar as PW1 is concerned, the learned Counsel would contend that, in the absence of any injury on her body, when the evidence of PW4 indicates that she was assaulted with an iron beam, her presence at the scene is also doubtful. In view of the above, he would contend that, none of the witnesses, projected as eye witnesses, have seen the incident, as such, the accused is entitled for benefit of doubt. 8. (i) Sri. In view of the above, he would contend that, none of the witnesses, projected as eye witnesses, have seen the incident, as such, the accused is entitled for benefit of doubt. 8. (i) Sri. S. Dushyanth Reddy, learned Additional Public Prosecutor appearing for the State, opposed the same contending that, these minor discrepancies pointed out by the learned Counsel for the Appellant do not go to the root of the matter. According to him, it is not necessary that names of all the eye witnesses have to be mentioned in the inquest or in the First Information Report. In other words, he would submit that, the F.I.R. is not an encyclopedia, which should contain all the details and it is only to know the actual cause of death and, as such, non-mentioning the name in the First Information Report and inquest, do not falsify the case of the prosecution. (ii) Insofar as PW1 is concerned, learned Additional Public Prosecutor would contend that, she is natural witness and merely because the assault with iron beam was not mentioned by PW1, does not make her presence doubtful, as the evidence of prosecution witnesses gets corroboration from medical evidence, hence pleads that conviction and sentence imposed warrants no interference. 9. In reply, Sri. T. Nagarjuna Reddy, learned Counsel appearing for the Appellant/Accused No.1, would contend that, even accepting the entire case of the prosecution is true, no offence under Section 302 of I.P.C. is made out, since the incident is an outcome of a quarrel relating to the accused raising a slab on common wall. 10. The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the Accused No.1 beyond doubt for the offence punishable under Section 302 I.P.C.? 11. In order to appreciate the rival arguments advanced, it would be just and proper to refer to the evidence of PW1, PW4 and PW6. 12. PW1 is the eye witness to the incident. According to her, on the date of incident, at about 4.30 or 5.00 P.M., she noticed the accused laying slab on the joint wall. When she questioned Accused No. 1 to 3 about the same, Accused No. 1 is said to have abused and threatened to kill her. 12. PW1 is the eye witness to the incident. According to her, on the date of incident, at about 4.30 or 5.00 P.M., she noticed the accused laying slab on the joint wall. When she questioned Accused No. 1 to 3 about the same, Accused No. 1 is said to have abused and threatened to kill her. When her husband [deceased] intervened and questioned the accused as to why they are abusing PW1, all the accused fisted him, as a result of which, the deceased fell down. When he got up, Accused No. 1 again kicked him on chest, side ribs and stomach, as a result of said blow, the deceased again fell down and could not get up. 13. From the evidence of this witness, it is clear that she only speaks about the accused assaulting the deceased, and the quarrel which took place between PW1 and the accused prior to the incident in question, with regard to laying of slab on the common wall without paying the amount agreed in settlement of dispute. PW1 was cross-examined at length, but nothing came to be elicited to discredit her testimony. On the other hand, the answers elicited show that, she was present in the upstairs portion at that point of time. It would be useful to extract the said portion, which is as under: “It is not true to suggest that A.1 was not present at the scene of offence. The incident occurred in the upstairs. I was also present there in the upstairs at the time of the incident. It is not true to suggest that my husband was suffering from heart ailment.” 14. From the answers elicited in the cross-examination of PW1, it stands established beyond doubt that she was present at the time of the incident. One another fact, which requires to be noted here is that she does not speak about the assault on herself by any of the accused. 15. Coming to the evidence of PW4 and PW6, PW4 is a ‘Mason’, working at the site. According to him, at about 4.00 or 5.00 P.M., Accused No. 2, 3 and PW4, one Atchuta, Yerakayya and Nedunuri Krishna, went upstairs for laying beam work. PW1 and deceased also came there and obstructed them from laying beam, as payment was not made as agreed upon. PW1 sat on the joint wall and obstructed from laying a slab. According to him, at about 4.00 or 5.00 P.M., Accused No. 2, 3 and PW4, one Atchuta, Yerakayya and Nedunuri Krishna, went upstairs for laying beam work. PW1 and deceased also came there and obstructed them from laying beam, as payment was not made as agreed upon. PW1 sat on the joint wall and obstructed from laying a slab. Meanwhile, there was an altercation between the deceased, Accused No. 2 and 3. In that altercation, the deceased slapped Accused No. 2 and pushed one another. Thereafter, Accused No. 1 came there and questioned Accused No. 2 about the incident. Accused No.2 narrated as to what had happened to Accused No.1. Meanwhile, when PW1 obstructed, Accused No. 1 pulled her down and beat her with iron beam on her head. Immediately, the deceased intervened, then Accused No.1 kicked the deceased on his stomach, as a result of which, he fell down. 16. The evidence of PW4 would show that, as if Accused No.1 beat PW1 with iron beam on her head, apart from kicking the deceased on his stomach. In-fact, PW1 was not even sent to doctor for examination. This version of PW4 was spoken to even by PW6, namely, attack on PW1. But, we are not inclined to accept the fact of PW1 being attacked with iron beam. Had PW1 been attacked, definitely, there would have been some injuries on her body. But, this piece of evidence does not establish that PW1 was not present at that point of time, since, the evidence of PW4 corroborates the evidence to the extent that PW1 was present and Accused No.1 assaulting the deceased. 17. Coming to the evidence of PW6; he also speaks about the attack on the deceased by Accused No. 1 in the manner spoken to by PW1. The evidence of this witness is silent with regard to attack on PW1. His evidence is only to the effect that Accused No. 1 came from ground floor to the upstairs and pushed PW1. Coming to the evidence of PW6; he also speaks about the attack on the deceased by Accused No. 1 in the manner spoken to by PW1. The evidence of this witness is silent with regard to attack on PW1. His evidence is only to the effect that Accused No. 1 came from ground floor to the upstairs and pushed PW1. Even assuming for the sake of argument that the evidence of PW6 cannot be believed, for the reason that his name does not figure in the First Information Report or inquest, but, as observed by us, the evidence of PW1 inspires confidence to believe her to be an eye witness to the incident, more so, when her presence in the upstairs at that point of time, cannot be doubted. Further, the evidence of PW1 gets corroboration from other evidence in all quarters. Further, the evidence of doctor [PW12] also supports the case of the prosecution with regard to the injuries sustained by the deceased. Hence, we hold that no ground is made to disbelieve the evidence of PW1 and PW6 with regard to assault on the deceased. Accordingly, even if the evidence of PW6 is excluded from consideration, as urged by the learned Counsel for the Appellant, still the evidence of PW1, in our view, can be accepted, as it gets corroboration from the medical evidence. 18. Insofar as extra-judicial confession is concerned, the learned Counsel for the Appellant tried to contend that, there was no necessary for the accused to go and make a confession before PW7 [V.R.O] disclosing the commission of the offence. Though, the Additional Public Prosecutor opposed the same, but, we feel that there was no reason for Accused No.1 to 3 to confess about the commission of the offence before PW7. Things would have been different had confession was made seeking help or protection from the police, but, it does not appear to be so. Hence, we are not inclined to accept the extra-judicial confession made before PW7 [V.R.O] by all the accused. But, since, PW1 can be treated as a sterling witness; we believe her evidence to hold that there was an incident on that day, in which the deceased was assaulted by Accused No.1. 19. Sri. Hence, we are not inclined to accept the extra-judicial confession made before PW7 [V.R.O] by all the accused. But, since, PW1 can be treated as a sterling witness; we believe her evidence to hold that there was an incident on that day, in which the deceased was assaulted by Accused No.1. 19. Sri. T. Nagarjuna Reddy, learned Counsel appearing for the Appellant/Accused No.1 submits that, since PW1 in her evidence states that she cannot identify the report, as she is illiterate and she is not a signatory, her evidence cannot be believed, more so, when she is disowning the report. We have perused the evidence of record and also the evidence of PW1. It is not a case where PW1 is disowning the report. PW1 in her evidence admitted that she is a illiterate lady and as such, she cannot identify the report. But, she clearly states that, she is not signatory, meaning thereby that she has to put thumb impression. The said fact was corroborated by the evidence of PW11, who categorically states that, on receiving a call; he proceeded to the scene of offence and collected the written report [PW5] at the spot from PW1. Therefore, the argument that entire fabric of the case collapses because of denial of PW1 in lodging a report, cannot be accepted. 20. At this stage, Sri.T. Nagarjuna Reddy, learned Counsel appearing for the Appellant/Accused No.1, would contend that, since the incident happened pursuant to a quarrel between two neighbours with regard to laying of a slab over a common wall, pleads for scaling down of the offence. Learned Additional Public Prosecutor opposed the same. 21. As seen from the evidence available on record, more particularly, the evidence of PW1, there was some mediation in which the accused were directed to pay some money to PW1 and others. But, without paying any money, the accused were laying a slab over a common wall, in respect of which a quarrel ensued and the accused abused PW1 in filthy language and also threatened to kill her. At that point of time, her husband [deceased] intervened, which lead to a quarrel between the accused and the prosecution party. But, without paying any money, the accused were laying a slab over a common wall, in respect of which a quarrel ensued and the accused abused PW1 in filthy language and also threatened to kill her. At that point of time, her husband [deceased] intervened, which lead to a quarrel between the accused and the prosecution party. During said quarrel, Accused No. 1 is said to have fisted the deceased on his stomach, as a result of which the accused fell down and later on when he got up, Accused No. 1 again kicked him on his chest, side ribs and stomach, as a result of which the deceased fell and could not get up due to severe pain. 22. From the above, it is clear that, prior to the incident there was a quarrel between PW1 and the accused with regard to laying of slab over the common wall for payment of money as agreed before the mediators. 23. Therefore, it can be said without any hesitation that there was a quarrel between two neighbours pursuant to which, the incident in question took place. As seen from the record, initially the deceased was fisted as a result of which, he fell down and, thereafter, he was alleged to have been kicked with legs, leading to his death. Therefore, it cannot be said that, the accused had any intention to cause the death of the accused. If really the intention was to cause death, definitely, they would have used weapon or stick or iron beam, which were lying there, to cause the death of the deceased. 24. Taking into consideration the manner in which the incident in question took place and in the absence of any ill-will, motive or prior enmity between the accused and the deceased, we are of the view that the conviction of the Appellant/Accused No.1 has to be scaled down to one under Section 304 Part-II of I.P.C. Hence, the conviction under Section 302 IPC is set-aside and the Appellant/Accused No.1 is convicted for the offence punishable under Section 304 Part-II I.P.C. and sentenced to undergo rigorous imprisonment for a period of seven years. Since the Appellant/Accused No. 1 is on bail in pursuance of the Order, dated 06.10.2021, passed by this Court in I.A. No.1 of 2021, the Appellant/Accused No.1 is directed to surrender himself forthwith before the II Additional Judicial Magistrate of First Class, Visakhapatnam, and on such surrender, the Magistrate shall, in turn, send the Appellant/Accused No. 1 to the jail concerned for serving the remaining sentence. In case of failure to surrender, the Magistrate shall take steps for securing the presence of the Appellant/Accused No. 1 and commit him to the prison. 25. Accordingly, the appeal is allowed in part. Consequently, miscellaneous petitions, if any, pending shall stand closed.