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2023 DIGILAW 74 (AP)

Chanda Siva Kanth v. State Of Andhra Pradesh

2023-01-06

B.V.L.N.CHAKRAVARTHI, C.PRAVEEN KUMAR

body2023
JUDGMENT : (C. Praveen Kumar, J.) 1. Sole accused in Sessions Case No.228 of 2013 on the file of the Court of XV Additional District and Sessions Judge, Nuzvid, is the appellant herein. He was tried for an offence punishable under Section 302 of the Indian Penal Code, 1860 (for short ‘I.P.C’), for causing the death of one Kode Yedukondalu on 20.09.2012 at 7.50 P.M., at Hanuman Junction Bus stand in Nuzvid Town. Vide judgment dated, 08.12.2015, the learned Sessions Judge convicted the accused and sentenced him to suffer imprisonment for life and to pay fine of Rs.10,000/-, in default of payment of fine amount, to suffer simple imprisonment for a period of three months. Challenging the same, the present Criminal Appeal came to be filed. 2. The facts in issue are as under: (i) P.W.1 is the wife of deceased, who was an auto driver, while P.W.2 is the wife of accused and elder sister of deceased. P.W.1 married the deceased about a year prior to the incident and both of them lived at Gopavaram, Musunuru Mandal, which is the in-laws’ house of P.W.1. P.W.2, a native of Kuchipudi village, who is having one daughter and one son, is residing at Kuchipudi village, which is her in-laws place also. It is said that the accused used to harass and beat P.W.2, due to which she used to live one week in the house of deceased and next week with her husband. (ii) While the things stood thus, a month prior to the incident, the accused beat his wife (P.W.2) on the left hand, as a result of which, she sustained grievous injury. She came to the house of deceased along with her daughter and left her son with the accused. On 20.09.2012, as P.W.2 wanted to see her son, went to Kuchipudi. In the afternoon, P.W.2 along with her son came to Nuzvid bus stand to go to her father’s place. At that time, P.W.1 along with her husband (deceased) came to Nuzvid from Gopavaram for purchasing some clothes. While they are purchasing clothes, P.W.2 contacted them informing that she is at Nuzvid bus stand and requested them to come over there. It was about 7.30 P.M., then P.W.2 along with her son boarded the auto of deceased and reached auto point, which goes towards Hanuman Junction. While they are purchasing clothes, P.W.2 contacted them informing that she is at Nuzvid bus stand and requested them to come over there. It was about 7.30 P.M., then P.W.2 along with her son boarded the auto of deceased and reached auto point, which goes towards Hanuman Junction. At that point of time, the deceased requested P.W.2 to board another auto and that he will engage some more passengers to go to Gopavaram. (iii) In the meanwhile, the accused came there and questioned P.W.2 about bringing their son without his knowledge and started beating her at the auto point. When the deceased intervened to rescue P.W.2, accused pushed him aside and stabbed him on his chest with a knife. He is said to have stabbed the deceased thrice on the cheat and also beat on the abdomen of the deceased. As a result of the said injuries, the deceased died on the spot. Immediately, an ambulance was called and the injured was shifted to hospital, where he was declared brought dead. (iv) On 20.09.2012 at about 10.30 P.M., law was set into motion by lodging a report before P.W.11-Sub-Inspector of Police, Nuzvid Police Station, which came to be registered as a case in Crime No.191 of 2012 under Section 302 of I.P.C of Nuzvid Police Station. Ex.P7 is the Original F.I.R. (v) On receipt of a copy of F.I.R from P.W.11, P.W.12- Inspector of Police, Nuzvid took up investigation. During the course of investigation, he visited the scene of offence and posted a constable to guard the scene of offence, as it was late night. On 21.09.2012, he again visited the scene of offence; prepared a rough sketch under Ex.P8; secured the presence of mediators; prepared scene observation report, which is marked as Ex.P3; collected the controlled earth and blood stained earth in polythene covers and obtained the signatures of the mediators. Later, he visited the Area Hospital, Nuzvid and held inquest over the body of the deceased in the presence of mediators and later sent the dead body for Post Mortem examination. Ex.P2 is the inquest report. (vi) P.W.10-Civil Assistant Surgeon, Area Hospital, Nuzvid conducted Post Mortem over the dead body and found stab injuries on the body of the deceased. Later, he visited the Area Hospital, Nuzvid and held inquest over the body of the deceased in the presence of mediators and later sent the dead body for Post Mortem examination. Ex.P2 is the inquest report. (vi) P.W.10-Civil Assistant Surgeon, Area Hospital, Nuzvid conducted Post Mortem over the dead body and found stab injuries on the body of the deceased. He opined that the cause of death was due to stab injury in chest region extended into the chest wall into the left lung and stab injury extending into chest cavity into the heart leading to hemorrhage and shock. Ex.P6 is the Post Mortem report. (vii) P.W.12, who continued with the investigation, arrested the accused on 22.09.2012 at 12.00 Noon and basing on the confessional statement of accused, one shirt and a knife, which are marked as M.Os.1 and 2, were recovered under a cover of mediators’ report, marked as Ex.P4. After collecting all the documents and after completion of investigation, a charge sheet came to be filed, which was taken on file as P.R.C. No.62 of 2012 on the file of the Court of Additional Judicial Magistrate of First Class, Nuzvid. 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 a 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 under Section 302 I.P.C. came to be framed, read over and explained to the accused, to which, the accused pleaded not guilty and claimed to be tried. 4. In support of its case, the prosecution examined PW1 to PW12 and got marked Ex.P1 to Ex.P9, besides marking M.O.1 to M.O.4. 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. On behalf of the accused, no oral evidence was adduced, but got marked Ex.D1-Section 161 Cr.P.C statement of P.W.3. 5. Relying upon the evidence of P.Ws.1 to 4, 6 and 7 coupled with the medical evidence, the learned Sessions Judge convicted the accused. Challenging the same, the present appeal came to be filed. 6. On behalf of the accused, no oral evidence was adduced, but got marked Ex.D1-Section 161 Cr.P.C statement of P.W.3. 5. Relying upon the evidence of P.Ws.1 to 4, 6 and 7 coupled with the medical evidence, the learned Sessions Judge convicted the accused. Challenging the same, the present appeal came to be filed. 6. Smt A.Gayathri Reddy, learned counsel for the appellant, mainly submitted that even accepting the entire case of the prosecution to be true, no offence is made out under Section 302 I.P.C., and as such, requests to scale down the offence. 7. On the other hand, Sura Sainath, learned Additional Public Prosecutor, would contend that the fact that the accused came along with small knife itself indicate that he had an intention to do away the deceased. 8. The point that arises for consideration is: “whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt?” 9. As seen from the record, the fact that it was a case of homicidal death, stands established through the evidence of P.W.10-Civil Assistant Surgeon, who in categorical terms, states that due to stab injury in chest region, the deceased died. 10. Coming to the incident in question, P.Ws.1 and 2 are the eye witnesses to the incident. They, in categorical terms, deposed about the manner in which the incident in question took place. It is said that on 20.09.2012, P.W.2 requested the deceased to come to bus stand at Nuzvid. When P.W.1 and deceased went to bus stand, Nuzvid at about 7.30 P.M., P.W.2, along with her son, boarded the auto of deceased and reached auto point. The accused came to the auto point and questioned P.W.2 about taking away his son, without his knowledge and started beating her. When the deceased intervened to rescue P.W.2, the accused pushed P.W.2 aside and stabbed him on the chest of the deceased with a knife, as a result of which, he died on the spot. 11. From the evidence of P.Ws. 1 and 2, it is clear that on the fateful day, P.W.2 went to the house of her husband (accused) and without the knowledge of her husband, brought her son out, with an intention to take him to the house of P.W.1. 11. From the evidence of P.Ws. 1 and 2, it is clear that on the fateful day, P.W.2 went to the house of her husband (accused) and without the knowledge of her husband, brought her son out, with an intention to take him to the house of P.W.1. She was successful in bringing her son from the house of the accused, but however, when the accused came to know about the same, he came to the auto spot and beat his wife, for forcibly taking away his son without his knowledge. An altercation took place between husband and wife. At that point of time, the deceased, who was there, intervened in the quarrel. Then the accused is said to have stabbed the deceased with a knife on his chest, as a result of which, the deceased died on the spot. 12. There is no dispute that the deceased died because of the stab injury by the accused. Learned counsel for the appellant fairly states that she is not disputing the incident in question, but only seeks scaling down the offence, in view of the manner in which the incident took place. 13. As seen from the record and discussion made above, the accused had no intention, nor came there to kill the deceased. His grievance was against his wife, as she took his son without his knowledge with an intention to take him along with her to the house of P.W.1, where she was living. In that quarrel, the deceased intervened, as a result of which, accused stabbed the deceased with knife. 14. It is no doubt true that about three stab injuries were inflicted on the deceased, out of which, one was a small cut injury over the stomach region. As held by the Apex Court, it is not the number of injuries found in the body of the deceased that are required to be taken into consideration for determining the nature of incident, but also the circumstances under which the incident took place. 15. Ergo, the argument of the learned counsel for the appellant that three stab injuries on the body on the chest region may not be taken as ground to convict under Section 302 I.P.C., but having the manner in which the incident took place, in our view, in the facts and circumstances, cannot be brushed aside. 16. 15. Ergo, the argument of the learned counsel for the appellant that three stab injuries on the body on the chest region may not be taken as ground to convict under Section 302 I.P.C., but having the manner in which the incident took place, in our view, in the facts and circumstances, cannot be brushed aside. 16. Learned Additional Public Prosecutor tried to contend that in view of the fact that he came there with an armed weapon, scaling down of the offence may not be proper. 17. It is true that the accused was armed with knife. Even accepting the entire case of the prosecution, in all probabilities the accused must have come there to attack P.W.2 because it was P.W.2, who took his son from his house, without his knowledge. In fact, when P.W.2, was not even aware about presence of P.W.1 and deceased at Nuzivid, because they came there only to purchase clothes, which was not to the knowledge of P.W.2 as well. In the quarrel that took place between the accused and P.W.2, the deceased intervened, which lead to the incident in question. 18. Hence, taking into consideration the manner in which the incident took place and having regard to the fact that the incident took place in a spur of moment 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 has to be scaled down to one under Section 304 Part-II I.P.C. Hence, the conviction under Section 302 IPC is set-aside and the appellant/accused is convicted for the offence punishable under Section 304 Part-II IPC and sentenced to undergo rigorous imprisonment for a period of ten years. Since the appellant/accused is on bail, in pursuance of the Order, dated 04.10.2021, passed by this Court in I.A. No.1 of 2021, the appellant/accused is directed to surrender himself forthwith before the Additional Judicial Magistrate of First Class, Nuzvid within a period of three weeks from today, and on such surrender, the Magistrate shall, in turn, send the appellant/accused 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 and commit him to the prison. 19. Accordingly, the appeal is allowed in part. Consequently, miscellaneous petitions, if any, pending shall stand closed.