HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL No.1534 of 2005 JUDGMENT: The conviction of the accused for an offence punishable under Section 304 Part-II of the Indian Penal Code and the consequential sentence imposed by the judgment, dated 29.06.2005 in Sessions Case No.294 of 2004 on the file of the VI Additional District and Sessions Judge (Fast Track Court), West Godavari District at Narasapur are the subject matter of the present appeal. 2. The accused was charge-sheeted by the Inspector of Police, Palakol for an offence punishable under Section 302 of the Indian Penal Code (for short ‘the IPC) in Crime No.36 of 2004 of Yelamanchili Police Station alleging that Polukonda Tatarao is the elder brother of the accused and on 11.04.2004 at about 12 noon, Polukonda Vijayakumari, the junior paternal aunt of the accused and the deceased, picked up some dry coconut planks from the field claimed to be in the possession of the accused, for which the accused abused her. The deceased reprimanded him for abusing their aunt and the accused grew wild, went inside the house, picked up a sharp tappers knife and hacked Tata Rao in the lower abdomen, on which the intestines of Tata Rao came out. Immediately, Polukonda Vijayakumari, Polukonda Chitti Mariyamma and P.Sunita raised alarm and Polukonda David and others rushed there and shifted the injured to the Government hospital, Palakol in the auto of Vipparthi Rajesh. On receipt of hospital intimation, the police registered the crime on recording the statement of Tatarao and while undergoing treatment, Tatarao died. On receipt of the death intimation, Crime No.36 of 2004 was converted into a case under Section 302 of the IPC. The scene of offence was examined, the blood stained earth, controlled earth were seized before mediators, inquest over the dead body was held and autopsy was conducted. The Medical Officer opined the death to be due to shock due to injury to urinary bladder and intestines due to sharp edged weapon and on the confession of the accused after his arrest, the weapon of offence was seized on 13.4.2004. The material objects were sent to the Forensic Science Laboratory and hence the charge. 3. On the appearance of the accused, the Magistrate furnished copies of the documents to him and committed the case to the Court of Session. The charge under Section 302 of the IPC was framed by the Court of Session, to which the accused pleaded not guilty and PWs.1 to 17 were examined and Exs.P.1 to P.16 and MOs 1 to 4 were marked during trial. Except marking Exs.D.1 to D.4 portions of the statements of witnesses recorded by the police, the accused did not produce any defence evidence. But he denied the incriminating circumstances appearing against him when he was examined under Section 313 Cr.P.C. 4. The trial Court rendered the impugned judgment extensively referring to the oral and documentary evidence placed before it and the contentions of both the parties and came to the opinion that over a petty issue, the accused and the deceased, who are brothers, disputed and during the sudden quarrel, the accused hacked the deceased with a tappers knife. Any existence of prior disputes between the accused and the deceased were noted to have not been indicated by the evidence and the only reason for the trouble was the deceased questioning the accused for abusing PW.1. Though PWs.1 and 2 were contended to be interested witnesses, the trial Court found that their evidence cannot be disbelieved on the ground of interestedness when the deceased reprimanded the accused for abusing an elder member of the family and the presence of PW.2 inside the house at that time was not unnatural. The trial Court noted the evidence of PW.3 hearing about the incident and shifting the deceased to hospital and the claims of PW.4 about being an eyewitness to the incident. It also referred to the evidence of PW.5 the Auto driver, PW.6 the son of PW.1, about witnessing the incident, similar evidence of PW.7 the daughter of PW.1, and the circumstantial evidence of PWs.8 to 10 about being informed about the incident. The trial Court also referred to the evidence of PW.11 the photographer and PW.12 the Panchayat Secretary, who acted as a mediator for Exs.P.3 to P.6 and also the recovery of M.O.1 under Ex.P.6 pursuant to Ex.P.5. Though no blood was detected on M.O.1, the prosecution version was relied on in view of the credible direct evidence and the trial Court concluded that the injury inflicted by the accused on the deceased was responsible for the death. The statement of the deceased, which led to the registration of the crime, was also considered as credible in the light of the coherence of the deceased and certification of the state of health of the deceased at the time of examination by the Medical Officer. The investigation was also not discredited. But the trial Court referring to the essential ingredients of the offences punishable under Sections 302 and 304 of the IPC and the precedents on the aspect, considered that the attack of the deceased by the accused was on the spur of the moment, which consequentially falls under Section 304 Part II of the IPC. Consequently, the trial Court concluded that the accused is not guilty of the offence punishable under Section 302 of the IPC and convicted him under Section 304 Part- II IPC and sentenced him to suffer Rigorous Imprisonment for seven years with the benefit of set off under Section 428 of the Cr.P.C. 5. The accused who approached this Court with this appeal through the learned counsel representing the A.P.High Court Legal Services Committee contended that the alleged statement or dying declaration of the deceased was incredible as the deceased was unconscious at that time and the doctor who made the endorsement of consciousness and coherence was not examined. The absence of any blood on the alleged weapon of offence and the unreliability of the alleged recovery should have led the trial Court to acquit the accused. 6. Smt.Naseeb Afshan, learned counsel for the appellant on behalf of the A.P.High Court Legal Services Committee, and Sri K.Venkateswara Rao, learned counsel representing the learned Public Prosecutor, are heard. 7. The point for consideration is whether the prosecution has proved the guilt of the accused for an offence punishable under Section 304 part –II of the IPC beyond reasonable doubt and if so, what should be the reasonable quantum of punishment? 8. The finding of the trial Court about the accused being not guilty of the offence punishable under Section 302 of the IPC remained unchallenged and had become final and the consideration therefore has to be confined to the offence for which the accused was found guilty by the trial Court. 9. The earliest version concerning the incident proper is Ex.P.10 statement of deceased P.Tatarao recorded by the Assistant Sub-Inspector of Police, Yelamanchili Police Station at the Government Hospital, Palakol, on receipt of the hospital intimation. The deceased was positive that he questioned the accused for abusing PW.1, on which the accused brought out the tappers knife and hacked him in the stomach abusing him. The incident at about 1 P.M. was stated to have resulted in the intestines of Tatarao coming out, Tatarao’s wife raising cries and others there shifting him in an Auto to the hospital. The version within one hour fifteen minutes from the incident can never be considered to be the result of any deliberation or fabrication, more so in the absence of any previous disputes or enmity between the deceased and the accused as found from the evidence by the trial Court. 10. The evidence of PW.1 about the incident was fully consistent with the said statement of the deceased. How PW.1 can grab the property of the accused by giving false evidence, as suggested to her, is inexplicable. PW.1 being a lady, aged about 48 years, could not have intervened physically in the dispute between the accused and the deceased and the mere fact that PW.1 did not clearly see the weapon used is not of any serious consequence. 11. PW.2 the wife of the deceased also stated about the deceased reprimanding the accused for abusing PW.1 and the accused bringing out a knife and hacking her husband and subsequent events leading to his death. 12. PW.3 observed the deceased lying with the injury in his stomach and was one of those, who took the deceased to the hospital in an Auto and PW.4 had in addition also watched the accused bringing out the knife and hacking on the stomach of the deceased. PW.5 is the owner and driver of the Auto in which the deceased was taken to the hospital. PWs.6 to 10 provide circumstantial corroboration to the claims of the direct witnesses and the evidence of PW.11 the photographer, PW.12 the mediator, PW.13 Medical Officer, PW.14 doctor, who conducted postmortem, PW.15 who registered the crime and conducted a part of the investigation and PWs.16 and 17 the Investigating Officers had absolutely no details, which run counter to the evidence of the direct and circumstantial witnesses, who spoke about the incident. The scene of observation report Ex.P.3, the inquest report Ex.P.4, the mediators reports for recovery of the weapon of offence on confessional statements Exs.P.5 and P.6 and the medical records including the postmortem certificate are in tune with the prosecution version and the oral and documentary evidence was carefully analysed by the trial Court, which need not be replicated herein. 13. As such, the conclusion that it was proved beyond reasonable doubt that the injury caused by the overt act of the accused resulted in the death of the deceased is not open to interference herein. 14. The trial Court also carefully analyzed the facts and circumstances proved by the evidence to consider whether what was proved was an offence punishable under Sections 302 or 304 of the IPC and rightly found that it was not a premeditated or preconceived attack and was during the course of a sudden fight. With reference to Exception 4 of Section 300 of the IPC, the trial Court rightly found the offence to be one punishable under Section 304 Part-II of the IPC involving an Act with knowledge that it is likely to cause death, but without any intention to cause death or cause the required bodily injury as is likely to cause death. 15. While the conviction handed over by the trial Court has to be confirmed, the question left is about the appropriate sentence to be imposed. The claims of the accused before the trial Court that he had a wife and two children to support and that his wife was again pregnant by the time of the judgment was not factually disputed. His further claim about his being the sole bread-winner for their family was also not denied and the age of the accused by the time of the trial was only 25 years and he was not proved or alleged to be having any past criminal record or convictions. In fact the brothers were living together and the sudden act of hacking in the heat of passion need not be too severely punished, more so, after the accused had undergone the ordeal of the criminal prosecution since more than 5 years and had also been in prison from 13.4.2004 to 19.4.2004 before trial and from 09.5.2005 during trial till after the suspension of the sentence by this Court in this appeal by the order dated 03.2.2009. Thus he had been imprisoned for more than four years and though there are no justifying circumstances for his violent outburst against his elder brother resulting in his death, the sentence, which he had already undergone, may be sufficient. Under the circumstances confining the sentence accordingly will subserve the ends of justice. 16. In the result, the sentence of rigorous imprisonment for seven years imposed by the judgment dated 29.06.2005 in S.C.No.294 of 2004 on the file of the VI Additional District and Sessions Judge (Fast Track Court), West Godavari District at Narasapur for an offence punishable under Section 304 Part-II of the IPC against the accused is modified and the sentence is restricted to the period of imprisonment already undergone by the accused before, during and after trial. 17. Subject to such modification in the sentence, the appeal is dismissed. ___________________ G.BHAVANI PRASAD,J 16th December 2009. PNV