THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.44 of 2007 Date: 14-10-2009 Between Gadusukuti Durga Rao … Appellant/Accused No.2 and The State of Andhra Pradesh, Rep. by its Public Prosecutor … Respondent/State THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.44 of 2007 Judgment: (per R.Kantha Rao, J.) This appeal is directed against the judgment dated 29-9-2006 passed by the learned V Additional Sessions Judge (Fast Track Court), Eluru, West Godavari district in Sessions Case No.66 of 2003, whereby and whereunder the appellant-accused No.2 was convicted for the offence punishable under Section 302 of IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.200/-, in default to undergo simple imprisonment for a period of two months. Challenging the said order of conviction and sentence, accused No.2 preferred the appeal. 2. Briefly stated, the prosecution case is as follows: (a) Accused 1 and 2 and one Rajulapati Surya Rao (hereinafter referred to as ‘the deceased’) are residents of Korumamidi village in Nidadavole Mandal of West Godavari district. Accused No.1 was running a toddy shop. On 08-01-2002 at about 8 p.m., a quarrel ensued between accused No.1 and L.W.3-Gadusukuti Surya Prakasa Rao @ Bodiyya. In the course of the said quarrel on the ground that L.W.3 did not repay the debt, accused No.1 being infuriated went inside the house, brought a knife used by toddy-tappers and attacked L.W.3 with the said knife with a view to kill him. G.Anantha Lakshmi (P.W.8), who is the wife of L.W.3, came to the rescue and she received hack injury while warding off the blow caused by accused No.1. In respect of the said incident, on the report lodged by P.W.8 a case in Crime No.1 of 2002 under Section 307 of IPC was registered in Samisragudem Police Station. (b) After lodging a report at the instance of P.W.1, deceased and L.W.3, the caste-elders called accused No.1 with a view to settle the dispute. But, accused No.1 did not appear before the caste-elders though they waited till midnight. (c) On the same day at about 1 a.m., i.e., on 08/09-01-2002, accused 1 and 2 came to the house of L.W.3, abused him and his family members in filthy language. L.W.3 and his family members hid themselves in the vicinity to escape from the proposed assault by accused 1 and 2. (d) In the meanwhile, L.W.7-Ghanta Kondaiah went to the house of the deceased and informed the incident to him. The deceased came out of his house holding a stick and was proceeding towards the house of L.W.3. On the way he found accused 1 and 2 talking to each other in front of the house of L.W.8-Kasani Surya Rao. The deceased questioned the high-handed act of accused 1 and 2 in attacking his younger sister P.W.8, who is the wife of L.W.3. Thereafter, there was a quarrel between accused 1 and 2 on one side and the deceased on the other during the course of which, accused 1 and 2 attacked the deceased with toddy-tapping knives with which they were arming. Accused No.1 hacked the deceased with the knife on his hand and right thigh and caused bleeding injuries. Accused No.2 hacked the deceased with toddy-tapping knife on his hand as well as on the left calf and caused bleeding injuries. The deceased in defence resisted the attacked by accused 1 and 2 with the stick in his hand during the course of which, accused 1 and 2 also received injuries. P.W.2, nephew of the deceased, who was witnessing the incident, rushed to the house and informed the same to P.W.1, brother of the deceased, whereupon P.Ws.1 to 3 and others rushed to the spot and found accused 1 and 2 with knives. On seeing them, accused 1 and 2 fled away. As the facility for transport was not available in the village, the deceased could not be shifted to the Government Hospital at Nidadavole till 4 a.m., on 09-01-2002. However, unfortunately, within 10 minutes after reaching the hospital, the deceased succumbed to the injuries. (e) Subsequently, basing on the report lodged by P.W.1, P.W.13-Sub Inspector of Police, Samisragudem Police Station, registered a case in Crime No.2 of 2002 under Section 302 of IPC at 5.30 a.m., on 09-01-2002. P.W.12-Inspector of Police, Nidadavole Circle, investigated into the offence and after completing investigation, he filed charge-sheet. (f) Pending trial before the learned trial Court, the case against accused No.1 was abated as he died. (g) The prosecution, in order to prove the guilt of accused No.2 before the learned trial Court, examined P.Ws.1 to 14, marked Exs.P-1 to P-19 and M.Os.1 to 8. The appellant (accused No.2) did not propose to examine any defence witnesses but marked Exs.D-1 to D-3. (h) The learned trial Court, on a consideration of the entire evidence available on record, convicted the appellant for the offence under Section 302 of IPC and sentenced him to punishment, as mentioned above. 3. We have heard Dr. K.Satyanarayana Rao, learned Counsel for the appellant-accused No.2 and the learned Public Prosecutor for the respondent-State. 4. The learned Counsel for the appellant would submit that the conviction was recorded by the learned trial Court basing on the evidence of interested witnesses, which consists of material inconsistencies and discrepancies; that the evidence on record indicates that there were also injuries on the person of accused 1 and 2, which the prosecution did not satisfactorily explain and as such, the appellant is entitled for benefit of doubt. In the alternative, the learned Counsel would submit that even if the evidence is believed, absolutely there is no material to record a conviction for the offence under Section 302 of IPC against the appellant as the evidence clearly indicates that absolutely there was no intention or knowledge on the part of the appellant to kill the deceased. 5. On the other hand, the learned Public Prosecutor would contend that the evidence of P.Ws.1, 2 and 14 is reliable and the learned trial Court rightly convicted the appellant for the offence under Section 302 of IPC, which needs no interference in this appeal. 6. Now, the point for determination in this appeal is -- whether the conviction and sentence recorded by the learned trial Court against the appellant can be sustained ? 7. Point :- The evidence of P.W.1, who is no other than the younger brother of the deceased, discloses that at about 1 a.m., on the date of incident while he was at his house, P.W.2, his nephew, came and informed him that accused 1 and 2 hacked the deceased with knives at the threshold of the house of Chikkala Surya Rao @ Kasani Surya Rao (L.W.8). On that, he rushed to the spot and noticed the deceased in a pool of blood and also accused 1 and 2 standing there arming with knives. His evidence further discloses that accused 1 and 2 proclaimed that if anybody comes in their way, they will be met with the same fate as that of the deceased. P.W.1 also identified M.Os.1 and 2 knives as the ones possessed by accused 1 and 2 at the time of attack on the deceased. 8. It is the evidence of P.W.2, nephew of the deceased, before the learned trial Court that at about 1 a.m., on the intervening night of 08/09-01-2002 accused 1 and 2 came upon their house arming with knives and shouted against the inmates, whereupon he and the other family members hid themselves in the vicinity of their house. He hid himself near the fence of his house. P.W.3 went to call the deceased and on that, the deceased started proceeding to their house. When the deceased came near the house of L.W.8-Kasani Surya Rao, he found accused 1 and 2 arming with weapons and accused 1 and 2 pounced upon the deceased and hacked the deceased with knives. According to this witness, accused No.2 hacked the deceased with a knife on the right thigh. After witnessing the incident he rushed to the house of P.W.1 and informed him about the same and thereafter, he, P.W.1 and other family members arrived at the place of occurrence and found accused 1 and 2 arming with knives. This witness also stated that accused 1 and 2 proclaimed that if anybody whispers any word about the incident they will be murdered. 9. P.W.3, who is a distant relative of the deceased, spoke about the fact of he, P.Ws.1 and 2 and others rushing to the place of occurrence after knowing about the incident and that they noticed accused 1 and 2 going away arming with knives of toddy-tappers. He also stated about the fact of accused 1 and 2 proclaiming that if anybody whispers about the incident they will be met with the same fate. 10. P.W.14, who is no other than the son of the deceased, also claims to have witnessed the incident, but in view of the material contradictions in his deposition to the effect that he stated before the Police that on coming to know about accused 1 and 2 hacked his father at the house of L.W.8-Kasani Surya Rao at about 1 a.m., he rushed to the place of occurrence and he found his father in a pool of blood, the evidence of this witness cannot be taken into consideration. However, the evidence of the remaining witnesses is not discredited to any extent in the course of cross-examination on material particulars and therefore, rightly it was relied upon by the learned trial Court. 11. Further, the evidence of the abovementioned witnesses receives corroboration from the medical evidence. P.W.6, the doctor, who conducted post-mortem examination on the body of the deceased, found the following ante-mortem injuries: (1) Rigor mortis: Present in lower limbs. An incised wound skin deep ½ deep in length X 1/4th inch in of width at the level of scapula spine ½ inch from the midline on the left side; (2) An incised wound 2½ inches X 1 inch, muscle deep, 5 inches above the lateral malleolus of right leg. Dried blood seen on the right leg; (3) 1 inch above the wound No.2 incised wound ½ inch X ¼ inch; (4) On the back of the left leg from the lateral malleolus to the tapering edges 6½ inches above the lateral malleolus 7 inches in length X 2 inches width X 2½ inches depth, bone and muscles exposed bleeding seen; (5) Right thigh incised wound 3 inches above the patella to the back of the thigh 6 inches X 2 inches X 2½ inches bleeding from the wound muscle deep on the medial side of the right knee. P.W.6 also stated in her evidence that the injuries found on the body of the deceased could be possible with weapons like M.Os.1 and 2 knives. This apart, through the evidence of P.W.10 -- a mediator and P.W.12 -- the Investigating Officer, the prosecution proved recovery of M.Os.1 and 2 weapons in pursuance of the disclosure statements made by the appellant and accused No.1. 12. Another important fact requires attention is that there are injuries on the person of the appellant and accused No.1, which are proved through P.W.11, the then Civil Assistant Surgeon, Government Hospital, Nidadavole, who examined the appellant and accused No.1 and all the injuries are, in the opinion of P.W.11, simple injuries. The prosecution, however, explained the injuries by demonstrating that while the deceased was resisting the attack by the appellant and accused No.1 with a stick, the appellant and accused No.1 also received injuries. Further, from the facts spoken to by P.Ws.1 to 3, there is no manner of doubt whatsoever that the appellant and accused No.1 are the aggressors since they came upon the house of prosecution party arming with weapons at about 1 O’ Clock in the night. The very fact that they came arming with weapons in the midnight clearly indicates that they are the aggressors and they provoked the deceased and also they commenced the attack in the first instance. 13. The prosecution also proved through the evidence of P.Ws.1 to 3 regarding the motive for the commission of offence against L.W.3-G.Surya Prakasa Rao @ Bodiyya at 8 p.m., and the subsequent Panchayat proposed to be convened by the village-elders at the instance of P.W.1 and the deceased. 14. From the above, absolutely we have no hesitation to concur with the finding of the learned trial Court that accused 1 and 2 hacked the deceased with knives. But, we are unable to accept the part of the finding insofar as it relates to the conviction under Section 302 of IPC. The reason being, from the evidence on record it is obvious that the appellant and accused No.1 did not at all aim at the vital parts of the body of the deceased. They caused injuries only on the legs of the deceased. The appellant (accused No.2) supposed to have caused injury on the left leg of the deceased. Apparently, the intention is only to cause grievous hurt but not to do away with the deceased. Further, their act is also not pre-meditated since they did not expect the presence of the deceased at the relevant time. It is only on the information conveyed by L.W.7-Ghanta Kondayya, the deceased came to the place of occurrence and he saw accused 1 and 2 and questioned them about the high-handed action, which ultimately resulted in the provocation by the appellant and accused No.1 to attack the deceased. It is also borne out from the record that the deceased succumbed to the injuries, which were caused on the lower limbs and other non-vital parts of the body. As medical aid could not be provided in time on account of non-availability of transport facility, the deceased died of profuse bleeding, which was not at all anticipated by the appellant and accused No.1. Therefore, in our considered view, the appellant could only be convicted for the offence of voluntarily causing grievous hurt by deadly weapon, but not for the offence under Section 302 of IPC, which was erroneously recorded by the learned trial Court. 15. Consequently, the conviction of the appellant- accused No.2 for the offence under Section 302 of IPC is altered to one under Section 326 of IPC, and the sentence of imprisonment passed by the learned V Additional Sessions Judge (Fast Track Court), Eluru, West Godavari district, dated 29-9-2006, in Sessions Case No.66 of 2003, against the appellant-accused No.2 is reduced to the period already undergone by him in connection with this case, which is about more than three years. The appellant, who is now undergoing jail sentence in the present case, shall be set at liberty forthwith, if he is not required in any other case. With the above modification in the conviction and sentence, the appeal is partly allowed. _________________________ JUSTICE D.S.R.VARMA _________________________ JUSTICE R.KANTHA RAO 14th October, 2009. Ak