THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 1098 of 2004 26th July, 2011 Between: Sarium Sankuru … Appellant / accused And The State of Andhra Pradesh rep by Public prosecutor … Respondent THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 1098 of 2004 JUDGMENT: This appeal is directed against the conviction and sentence passed by the I-Additional Sessions Judge, Khammam, in S.C.No.217 of 2002 on 23.12.2003. The appellant herein was prosecuted for offence under Section 302 IPC alleging that on 08.11.2001 at about 20:00 hrs, the deceased Seethamma went to the house of Kannaiah to call PW2-Payam Bhadraiah, and there the accused picked up quarrel with the deceased as to why she sent the cock to her father without his consent; and as the deceased replied him in a rude manner questioning his authority, the accused got wild and picked up a sickle and slashed the deceased on her face, hand and head and caused multiple injuries. The same was witnessed by PWs.2 and 3. PW2 also attempted to shift the deceased to the hospital in a bullock cart, but she died on the way. On the complaint of PW1, a case was registered in Crime No.42 of 2011 under Section 302 IPC by PW10 and took up the investigation. After completion of investigation, charge sheet was filed against the accused for offence under Section 302 IPC. The learned Sessions Judge framed the charge under Section 302 IPC against the accused and the accused pleaded not guilty for the said charge. The prosecution in order to establish the above said charge, examined PWs.1 to 12 and marked Exs.P1 to P11 and MOs.1 to 4. No oral or documentary evidence was adduced on behalf of the accused. Taking into consideration the said oral and documentary evidence, the learned Sessions Judge has found the accused guilty for the offence under Section 304 Part-I IPC and convicted and sentenced to undergo Rigorous Imprisonment for ten years and pay a fine of Rs.100/-, in default to suffer Simple Imprisonment for two months. Aggrieved by the said conviction and sentence, the present appeal is filed by the accused. Now the point that arises for consideration is whether the prosecution could able to establish the charge under Section 304 Part- I IPC against the accused beyond reasonable doubt. The learned counsel for the appellant has pleaded that the evidence of PWs.2 and 3 who were said to be eye witnesses is contradictory to each other and as such their evidence cannot be relied upon and further pleaded that the accused had no intention to cause the death of the deceased, and the prosecution has failed to establish the charge under Section 304 Part-I IPC. On the other hand, the learned Public Prosecutor pleaded that the eye witnesses PWs.2 and 3 have categorically stated about the accused attacking the deceased and causing multiple injuries and the evidence of PWs.7 and 9 establishes the death of the deceased was due to the said injuries, and as such the prosecution was able to establish the charge under section 304 Part-I IPC. The case of the prosecution is that the deceased’s husband owned a fighting cock which was being maintained by the accused. After death of the husband of the deceased Paida Seethamma, she sent the said fighting cock to her father’s house for which the accused questioned the deceased on 08.11.2001 at 20.00 hrs and a quarrel took place in that regard and when the deceased questioned the authority of the accused, he grew wild and picked up a sickle and slashed on her face, hand and head and caused multiple injuries and when she was being shifted to the hospital, she died on the way. PW1, the V.A.O of Aravapalli village, after coming to know about the incident through the Village servant, went to the spot and enquired about the incident and lodged report-Ex.P1. PW2 is the nephew of the deceased and he has stated that his father and mother died when he was a child and thereafter he was brought up by the deceased Seethamma and her husband, and the husband of deceased Seethamma died ten days prior to the death of the deceased. The deceased was murdered at 8.00 P.M. two years back when she was coming for him to the village where he was working under Madakam Kannaiah. At that time, PW2 was returning to his house from the place of work. The accused had a quarrel with Seethamma with regard to the fighting cock as he wanted to use it in cock fighting. When Seethamma refused to give him the cock for that purpose, the accused attacked her with a sickle and caused injuries on the right side of ear, forehead, left side of chest and right side of ribs, and in his presence and in the presence of S.Narayana, and thereafter, the accused left that place. Since Seethamma fell down, they shifted her on a bullock cart belonging to Pulla Rao to go to Government Hospital, Kukkunuru and on the way she died with injuries. In the cross examination, he has stated that Kannaiah was not present at his house at that time. LW3-Narayana was present. The quarrel between the deceased and the accused took place for about ten minutes. He denied about his not witnessing the incident and deposing falsely at the instance of the police. PW3-Salavam Narayana is stated to be another eye witness to the incident. He has also supported the version of PW2 in all respects and he also specifically stated about the accused attacking Seethamma on right ear, forehead, chest and on right arm with a sickle. He has categorically stated that he has witnessed the incident in the electricity street light; and himself and PW2 and others took Seethamma on a bullock cart belonging to Pulla Rao but she has succumbed to injuries on the way. In the cross examination he has stated that he does not know about the disputes between the accused and the deceased Seethamma, and that a quarrel took place in front of the house of the accused; he was at his house at the time of quarrel and the accused threatened him that he would be killed if he interfered with him. PW4-Madakam Kannaiah also supported the version of PWs.2 and 3 with regard to the incident, but whereas PWs.2 and 3 has not spoken about the presence of PW4 at the time of the incident. Therefore, the evidence of PW4 cannot be relied upon. Therefore, from the evidence of PWs.2 and 3, who are the eye witnesses to the incident, the prosecution could able to establish that the accused attacked the deceased Seethamma with a sickle when she refused to give the fighting cock to him for the purpose of cock fighting and the accused caused injuries on the right ear, forehead, chest, and right arm and she died on the way to the hospital. PW5-Amaravarapu Pulla Rao on whose bullock cart the deceased was shifted to the hospital also supported the version of PWs.2 and 3, about his providing the bullock cart at the request of PWs.2 and 3 to take the deceased to the hospital. With regard to the death of the deceased Seethamma, the prosecution has examined PW7, the inquest mediator who had categorically stated about his acting as mediator of inquest and found cut injuries on the right eye, forehead, right jaw and on the right hand. PW9 is the doctor who conducted autopsy on the body of the deceased, found 2/3rd of right palm cut at right wrist and hanging at right thumb, and all the vessels and radial artery cut, laceration of 3” x ½“ on the forehead extending horizontally, laceration of 1” x 1” on left zygomatic region, laceration of 3” x ½ “ on left cheek, laceration of 1” x ½ “ on right temporal region, and he stated that all the said injuries are possible by a weapon like sickle and the death of the deceased was due to shock caused by multiple injuries. According to the investigating officer PW10, he arrested the accused on 11.11.2001 and recovered the sickle MO4 at his instance. PW8 is the mediator for recovery of MO4 and he also stated about his presence at the time of arrest of the accused and recovery of MO4- sickle under the cover of panchanama-Ex.P4 and according to him, the police has seized the blood stained sickle. The investigating officer- PW11 has sent the MOs.1 to 4, clothes of the deceased, controlled and blood stained sickle-MO4 for FSL, Hyderabad through Court for chemical analysis. Ex.P7-report shows that blood was detected on item Nos.1, 3 to 6. The original of blood stains on item Nos.1, 3 to 6 is human and the blood group of the item Nos.3, 4 and 5 was detected as AB. Apart from the said evidence, the prosecution has examined PW12-the Junior Civil Judge, Yellandu who recorded confession of the accused under Section 164 of Cr.P.C. In the said statement recorded by PW12, the accused confessed about committing the offence. There is nothing in the cross examination to disbelieve the recording of the 164 Statement of the accused by the Magistrate as nothing was elicited in the cross examination that the said confession was made the accused at the instance of police or under threat or coercion. Therefore the said confession made by the accused before PW12 is a voluntary confession. Thus as observed above the prosecution could able to establish the death of the deceased was due to multiple injuries and as per evidence of PWs.2 and 3, the said injuries were caused by the accused. The learned counsel for the appellant has pleaded that the accused had no intention to cause the death of the deceased and he only caused injuries on provocation by the deceased and as such offence under Section 304 Part-II IPC only be attracted and not under Section 304 Part-I IPC. The learned Sessions Judge has also found that the accused had no intention to cause the death of the deceased, but he attacked the deceased with a sickle and caused injuries likely to cause death. The injuries caused to the deceased were severe in nature and caused the death of the deceased. Therefore, the contention of the appellant’s counsel cannot be accepted. Thus the learned Sessions Judge has rightly come to the conclusion that the accused has committed the offence and convicted him under Section 304 Part-I IPC. With regard to the quantum of sentence, the learned Sessions Judge sentenced to undergo Rigorous Imprisonment for ten years and also pay a fine of Rs.100/-, in default to undergo Simple Imprisonment for two months. The appellant’s counsel has pleaded for reduction of the sentence on the ground that the appellant had no intention to cause the death of the deceased and the act is only due to sudden provocation. In view of the relationship between the accused and the deceased and as per the evidence adduced by the prosecution, the accused had no intention to cause the death of the deceased, and as she refused to give the fighting cock, he got wild and caused injuries. Therefore, in the circumstances, I feel the punishment imposed is too harsh for the alleged offence. Hence the sentence of Rigorous Imprisonment of ten years is reduced to Rigorous Imprisonment of four years. In the result, the conviction of the accused for the offence under Section 304 Part-I IPC is confirmed but the sentence of Rigorous Imprisonment for a period of ten years and pay a fine of Rs.100/-, in default to undergo Simple Imprisonment for two months, is modified as Rigorous Imprisonment for a period of four years and pay a fine of Rs.100/- in default to undergo Simple Imprisonment for two months. Accordingly, the appeal is partly allowed. _____________________________ JUSTICE P. DURGA PRASAD 26th July, 2011 KSM