THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARA CRIMINAL APPEAL No.2608 OF 2004 BETWEEN: Kethagani Koteswara Rao, S/o.Chinnaiah … A AND The State of A.P. rep. by its P.P. … Res THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.2608 OF 2004 JUDGMENT: The appellant/A1 was convicted by the lower Court under Section 326 I.P.C. and was sentenced to rigorous imprisonment of six years and to fine of Rs.50/-. Questioning the same, A1 filed this appeal. The lower Court framed charges under Section 302 I.P.C. against A1 and under Section 302/34 I.P.C. against A2 and A3. After trial, the lower Court found A2 and A3 not guilty of the charges and A1 guilty under a minor offence under Section 326 I.P.C. 2. PW1 is father of the deceased and PW2. A2 is brother of PW1. A1 and A3 are sons of A2. The dispute between the parties is in relation to tapping of tree belonging to Balakrishna Reddy (PW.9) located in front of PW.12’s house in Epuru Venkannapalem Village. It is prosecution case that on 02.06.1996 at about 6:00 A.M., when the deceased went towards the disputed toddy tree, all the accused attacked him and that A1 was armed with Thunagalakarra, used for tapping toddy and that A1 pounced upon the deceased and dealt two heavy blows on head with Thunagalakarra, causing head injury and that when the deceased fell down with injuries, A1 to A3 ran away. Ultimately, the deceased died while undergoing treatment in Apollo Hospital, Nellore. Plea of A1 is one of total denial and not guilty. After trial, the lower Court found A1 alone guilty under Section 326 I.P.C. 3. In this appeal, it is contended by the appellant’s counsel that there is delay in giving report to the Police and that even though PWs 1 and 2 took the injured/deceased to Muthukur, to a native Doctor while going in front of the Police Station, they did not choose to give report to the police and that it is only after the deceased died in Apollo Hospital, Nellore, the Police went there and obtained report-Ex.P1 from PW1 and that it was sent to Muthukur Police Station on the point of jurisdiction and that by the time the case was registered, it was 8:00 P.M. on 03.06.1996 and that later, original FIR was sent to the Magistrate. PW18 is the then Head constable in VI Town Police Station, Balajinagar, Nellore. At 5:00 P.M., he received Ex.P9- hospital intimation on 02.06.1996 from Apollo hospital and he went there by 6:30 P.M. Since the injured/deceased was in unconscious State, he recorded Ex.P1 statement of PW1 and sent the same along with a memo to Muthukur Police Station on the point of jurisdiction. Thus, actual delay is only between 6:00 A.M. to 6:30 P.M. on 02.06.1996. Even though there is Police Station in Muthukur, to which village PW1 took the injured to a private Doctor, PW1 was in a hurry to get his son who received injuries treated medically. Therefore, he did not bother himself in giving report to the Police. On the advice of the local Doctor at Muthukur, PW1 along with the injured, rushed to Apollo hospital, Nellore, for better treatment. In those circumstances, there can be no adverse comment on the delay in giving report to the Police because PW1 was more interested in saving life of his son, who is the deceased than in giving report to the Police. The delay of about 12 hours in giving report to the Police is in no way fatal to the prosecution case. This is not a case which occurred due to factions, in which event, there may be every likelihood of roping in innocent persons from the opposite faction on confabulations and consultations by taking time. 4. Even though the prosecution examined PWs 1, 2 and 12 as eye witnesses to the occurrence, PW12 did not support the prosecution case and turned hostile to the prosecution. There is only evidence of PWs 1 and 2 who are father and brother of the deceased to speak to the occurrence. Other witnesses PWs 3 to 10 speak about motive leading to the offence and also basing on information received by them subsequent to the offence. When there is evidence of eye witnesses to the occurrence, motive loses importance and takes rear seat. Even though PWs 1 and 2 are closely related to the deceased, their evidence cannot be brushed aside on that ground alone and their evidence is liable to be scrutinized more carefully. It is contended by the appellant’s counsel that evidence of PWs 1 and 2 is not liable to be believed because of the infirmities in their evidence. Presence of PWs 1 and 2 at the time of offence at the scene is noted in Ex.P1 itself. Since it was morning 6:00 A.M., all the family members were going to Palmyra trees for tapping toddy. Presence of PWs 1 and 2 and they witnessing the offence cannot be doubted and it is but natural and their evidence is but natural. 5. It is evidence of PW1 that when he was coming towards his two sons, he heard loud sound from a Palmyra tree (toddy tree) and that he heard loud cries from top of tree where PW2 was tapping toddy and that by that time, he noticed A1 beating the deceased with Thunagalakarra and that A1 beat the deceased second time on head and that A1 gave another blow on shoulder of the deceased. He says that he noticed the incident personally and that the deceased suffered swelling on head and became unconscious. In cross-examination of PW1 and PW20, it is elicited that PW1 did not state to the Police during investigation under Section 161(3) Cr.P.C. to the effect that on the date of incident, he was also tapping toddy where the deceased was tapping toddy. From this, it is sought to be contended by the appellant’s counsel that PW1’s presence at the scene cannot be believed. From the above omission, one cannot jump to the conclusion that PW1 was absent at the scene by the time of offence. Effect of the said omission in PW1’s earlier statement will only make the Court to omit to read that portion of PW1’s examination-in-chief. There is no other omission in previous statement of PW1 with regard to he proceeding to the scene, along with his two sons. The fact that he omitted to state about he tapping toddy where the deceased was tapping toddy, will not lead to the conclusion that PW1 was absent at the scene by the time of offence. 6. PW1 denied the suggestion that he never saw A1 beating the deceased. He reiterated that A1 gave forcible blow with Thunagalakarra on head of the deceased. He described Thunagalakarra as the instrument for tapping of toddy. He says that it is of 3 feet and is more than fist size. In cross-examination, he says that it is of the size of his hand. PW1 gave explanation for not giving report to the Police at Muthukur, by saying that since his son had not received bleeding injuries, he did not think of reporting the matter to the Police. 7. It is evidence of PW2 that he and PW1 went for toddy tapping and that the deceased also accompanied them for tapping toddy. He says, he was tapping toddy from the tree of PW12 and that PW1 was tapping toddy from another tree at a distance of 10 meters away from him and that the deceased was standing near him on metal road. PW2 says that A2 and A3 were hiding in the midst of trees and A1 came and beat the deceased on head with Thunagalakarra and that he heard loud sound because of blow given by A1 and that immediately, he raised cries loudly and that again, A1 gave second blow on head of the deceased due to which the deceased fell down and that A1 beat another blow on shoulder of the deceased and that when he, PW1, PW12 and his mother Kameswaramma rushed there, the accused went away from that place. In cross-examination, PW2 deposed that he did not notice the first blow given by A1 with Thunagalakarra on head of the deceased, but he heard sound of that blow. PW2 further says that Malli Venkataratnam, PW12 and his mother, Kameswaramma also witnessed the incident. It is contended that Venkataratnam and Kameswaramma were not examined. Kameswaramma’s son, who is examined as PW12, turned hostile to the prosecution. Even though scene of offence is located near metal road, since the offence took place during early hours of the day at about 6:00 A.M., there may not be many passers by through that metal road. Non-examination of Malli Venkataratnam and Kameswaramma may not be material because the prosecution examined three of the eye witnesses to the occurrence. PW12 is no other than son of Kameswaramma. On scrutiny of evidence of PWs 1 and 2, I do not find any infirmities in their evidence in order to disbelieve the same. The lower Court who had opportunity to observe demeanor of the said witnesses, came to the conclusion that their evidence is believable. 8. In Ex.P12- post- mortem certificate and evidence of the Medical Officer- PW21, the following injuries on the deceased are noted: 1. A curved sutured wound on left tempero parietal region of skull measuring 24cms in length with surrounding contusion. The front end was situated 1.5cms above the pinna of left ear. Concavity facing downwards on the left side. 2. Contusion on right fronto tempero parietal region of skull 12x6.5cms x skin deep, b) on left frontal and left parietal region of skull 4.5x3.5cm x skin deep and 5x4.5x0.5cm skin deep respectively, c)on occipital region of skull 6x5cms skin deep 3. Abrasion on back of left and right elbow 1x1cm and 1x0.5cm respectively; b) on front of left hip 3x0.5cm on dissection: Sub scalp haematoma on the above mentioned region 4. Missing (craniotomy) left tempero parietal bones 9x8cm with five burr-holes were found 5. Comminuted fracture of right fronto tempero parietal bone, occipital bone, left parietal and frontal bones 6. Laceration of left fronto tempero parietal lobes 9x7.5x1-1.5cm b) occipital lobe 3.5x1.5x1cm; c) on right fronto tempero parietal lobes 10.5x2-2.5x1.5-2cm 7. Sub dural and sub arachnoid haemorrhage seen all over the brain 8. Haemorrhage seen in the lateral ventricles, mid brain, pons and medulla. The above mentioned injuries were dark brown in colour and antemortem in nature. 9. PW21 finally opined that the deceased died of head injuries. The head injuries include comminuted fracture of right fronto tempero parietal bone, occipital bone. It is contended that no injury is found on shoulder of the deceased even though as per evidence of PWs 1 and 2, A1 inflicted short blow on his shoulder. Absence of any injury on shoulder of the deceased indicate that the said blow was not severe blow in order to cause external or internal injury to the deceased. Oral evidence of PWs 1 and 2 is corroborated by medical evidence also in this case. Thus, on cumulative reading of the entire evidence on record, the lower Court rightly came to the conclusion that it was A1 who inflicted head injury on the deceased. Inspite of death occurring due to head injuries suffered by the deceased in the hands of A1, the lower Court gave lot of margin for A1 in finding him not guilty either under Section 302 I.P.C. or under Section 304 I.P.C., but finding him guilty only under Section 326 I.P.C. I do not find any circumstances in this appeal to come to a different conclusion from that of the lower Court. 10. It is contended by the appellant’s counsel that even for offence under Section 326 I.P.C., imprisonment of six years is on higher side. 11. In the result, the Criminal Appeal is dismissed, but altering period of imprisonment from six years to five years. ______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dated:28.09.2011 ysk THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARA CRIMINAL APPEAL No.2608 OF 2004 Dated:28.09.2011 ysk