IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TENTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SMT. JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.A.No.1202 OF 2009 Between: Pittala Kalyan and others …Appellants And The State of Andhra Pradesh, rep. by Public Prosecutor, High Court of A.P., Hyderabad. …Respondent HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.A.No.1202 OF 2009 JUDGMENT: (Per Hon’ble Sri Justice G.V.Seethapathy) This appeal is directed against the judgment dated 17-06-2009 in S.C.No.622 of 2007, on the file of the IV Additional Sessions Judge (FTC-III), Khammam, wherein the appellants/A-2, A-3, A-5 to A-10 were found guilty of the offence under Section 302 read with Section 149 IPC and were convicted and sentenced to suffer imprisonment for life. A-2, A-3, A-5 to A-10 were also found guilty of the offence under Section 147 IPC and were convicted and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.500/- each. A-2, A-3, A-5 to A-10 were also found guilty of the offence under Section 148 IPC and were convicted and sentenced to suffer rigorous imprisonment for six months and pay a fine of Rs.1,000/- each. A-10 was found guilty of the offence under Section 324 IPC and was convicted and sentenced to suffer rigorous imprisonment for six months and pay a fine of Rs.1,000/- and A-2, A-3, A5 to A-9 were found guilty of the offence under Section 324 read with Section 149 IPC and were convicted and sentenced to suffer rigorous imprisonment for three months and pay a fine of Rs.500/- each, with a direction that all the sentences shall run concurrently. 2. Heard the learned legal aid counsel appearing for the appellants-accused and the learned Public Prosecutor for respondent- State. Perused the record. 3. The case of the prosecution, in brief, is as follows:- The deceased, who is husband of P.W.1-Susheela, after undergoing treatment for ill-health returned home from hospital and came to know that his brother-in-law’s daughter was sent alone in an auto rickshaw and the auto driver attempted to commit rape on her. The deceased was scolded by P.W.1’s aunt and the deceased questioned P.W.1 for sending his brother-in-law’s daughter alone in the auto. The girl’s parents also scolded the deceased. On 04-06- 2004, the deceased beat P.W.1. A-1, who was residing in the adjacent house thinking that the deceased was scolding him, questioned P.W.1 as to why he was scolding. A-1 came into the house of P.W.1 armed with a stick and slapped the deceased. A-2 to A-10 also entered the house of P.W.1 and dragged the second wife of the deceased and tied her to an electric pole and beat her with hands. A-10 beat P.W.1 on the right side of eyebrow, as a result of which P.W.1 fell down. A-2 armed with an axe hacked on the head of the deceased. The deceased went inside the house, picked up a knife and stabbed one Nagaraju on the right side of the chest. A-1 to A-10 dragged the deceased and tied him to an electric pole and all the accused beat the deceased indiscriminately. When P.W.1 tried to intervene, she was also beat and pushed aside. Thereafter, P.W.1 went to police station and gave complaint-Ex.P-1. The police took the injured to the hospital. While undergoing treatment, the deceased died. Subsequently, Nagaraju, who received stab injuries, also died. 4. The accused appeared before the trial Court and pleaded not guilty to the charges framed under Sections 147, 148, 324, 302 and 324 read with Section 149 IPC. 5. In support of their case, the prosecution examined P.Ws.1 to 11 and marked Exs.P-1 to P-13 and M.Os.1 to 10. 6. On a consideration of the evidence available on record, the learned Sessions Judge found the accused guilty of the above offences and convicted them for the same and imposed sentences as stated supra. Aggrieved by the said conviction and sentence, the present appeal is filed by the accused. 7. It is not disputed that A-1 and A-4 died during trial and case against them abated. 8. In order to prove their case, the prosecution seeks to rely upon the testimony of P.W.1, the complainant-injured witness and P.W.3, the eyewitness to the occurrence, besides medical and circumstantial evidence. 9. P.W.1 is the wife of the deceased. She testified that after returning home from hospital, the deceased scolded her for sending M.Krishnaveni, who is daughter of her brother-in-law, alone to her village Gaddampalli in the auto and also beat her and meanwhile A-1, who is residing in the adjacent house, thinking that the deceased was scolding him, came into P.W.1’s house questioning as to why the deceased was scolding and slapped the deceased and meanwhile A- 2, A-3, A-5 to A-10 and one Nagaraju came there and beat Ameena, who is second wife of the deceased and dragged her out and tied her to an electric pole and beat her with hands. P.W.1 further testified that A-10 beat on the right side of her head with a stick and A-2 axed the deceased on the head and enraged by the same, the deceased picked up a knife and stabbed Nagaraju on the right side of the chest. She further testified that A-1 to A-10 dragged the deceased and tied him to an electric pole and beat him indiscriminately with sticks and when she tired to intervene, she was pushed aside. It is also in the evidence of P.W.1 that she went to Burgampahad Police Station and gave a complaint statement-Ex.P-1 and police came to the scene of offence and took the deceased to hospital at Burgampahad, where he died in the midnight. 10. The testimony of P.W.1 is consistent with the earliest version in the complaint-Ex.P-1 given by her, on all material particulars. The names of the accused and the overt acts attributed to them are mentioned in Ex.P-1 itself and the evidence of P.W.1 is duly corroborated by the contents of Ex.P-1. As the accused are all residents of the same locality and known to one another, there is no dispute regarding the identity of the accused. The F.I.R-Ex.P-10 shows that the incident took place on the evening of 04-06-2004 and the F.I.R was registered on the same night. Thus, there is absolutely no delay in giving the complaint to the police. Absence of any such delay vouches safe the genuineness of the contents thereof and rules out any false implication. The testimony of P.W.1 is not discredited in any manner. Though she is the wife of the deceased and thus closely related to him, her testimony cannot be discarded on the ground of mere relationship, especially when she happened to be an injured witness. She also sustained an injury in the hands of A-10 with a stick. P.W.10 the Medical Officer, Area Hospital, Bhadrachalam testified that he examined P.W.1 on 05-06-2004 at 02-40 P.M., and found an abrasion of 1½ cm X ½ cm on the outer aspect of the left eye and a contusion of 5cm X 4cm above the right knee and both injuries are simple in nature. He issued wound certificate- Ex.P-12. The medical evidence of P.W.10 coupled with Ex.P-12 wound certificate supports the prosecution case that P.W.1 also sustained injury in the course of the incident. As P.W.1 is an injured witness, her testimony is entitled for any amount of weight and credence, especially when the same is not otherwise discredited and no material contradictions or omissions are elicited in the cross- examination with reference to her earlier version before the police during the investigation. 11. Apart from P.W.1, the other eyewitness examined as P.W.3-brother of the deceased, also testified that when the deceased was scolding his wife-P.W.1 for sending Krishnaveni alone in the auto, the accused who are residing adjacent to P.W.1’s house, came there and dragged Ameena, second wife of the deceased and tied her to the electric pole and the deceased stabbed Nagaraju and all the accused beat the deceased indiscriminately with sticks and A-2 hacked on the right side of the head of the deceased with an axe. The testimony of P.W.3 is also not discredited in the cross-examination and no material contradictions or omissions with reference to his earlier version during investigation, are elicited. Simply because P.W.3 happened to be the brother the deceased, his testimony cannot be rejected on the ground of relationship. It is well settled that the evidence of related witnesses, if it is found acceptable and reliable, cannot be discarded on the ground of mere relationship. A careful scrutiny of the testimony of P.W.3 would show that he was a natural witness to the occurrence, being the brother of the deceased and there is absolutely no motive suggested as to why he should falsely implicate the accused. P.Ws.2 and 4 did not witness the incident as such and they reached there immediately after the occurrence on coming to know of it and found Nagaraju lying in a pool of blood and the deceased was tied to an electric pole. 12. Apart from the above direct evidence, the testimony of P.W.5, one of the panch witnesses, would support the prosecution case that the weapons- M.Os.1 to 5 were seized by the police in his presence besides the controlled earth-M.O.6, blood stained earth- M.O.7, clutch wire-M.O.8 under a panchanama-Ex.P-3. He was also present at the time of inquest over the dead body of the deceased and attested inquest report-Ex.P-4 whereunder M.O.10 lungi was seized from the body of the deceased. 13. P.W.8, the Medical Officer, Government Area Hospital, Kothagudem, who conducted post-mortem found the following injuries on the body of the deceased: i) Laceration to Lt. Frontal tempo region 6x4x3 cm; ii) A stab injury over the left chest 3rd intercostal space 2 ½ inch to 3x4 cm; iii) Lacerated wound on the left elbow 3x2x2 cm; iv) Abrasion over the posterior aspect of the penis 3x2x1 cm; v) fractured ribs on the left side i.e., 5 to 9 ribs, fractured ribs on the rt. Side 2nd, 3rd, 4th. He issued post-mortem certificate-Ex.P-9 opining that the cause of death was due to haemorrhage shock and fractured ribs on both sides and injuries to spleen and head injury. He also deposed that the injuries are possible with knife, stick or axe. The medical evidence of P.W.8 supports the prosecution case regarding the time of death, location of injuries on the person of the deceased and possibility of those injuries with the weapons seized. 14. Thus, the evidence on record – direct, medical and circumstantial would clearly establish the version of prosecution regarding the presence and participation of the accused in the offence, armed with weapons and the overt acts attributed to them. The trial Court has rightly convicted and sentenced the appellants/A-2, A-3, A-5 to A-10 for the offences under Sections 147 and 148 IPC. As A-10 caused injury on the left side of the head of P.W.1, he was also rightly convicted and sentenced for the offence under Section 324 IPC and A-2, A-3, A-5 to A-9 were convicted and sentenced for the offence under Section 324 read with Section 149 IPC. The sentences imposed by the trial Court for the above said offences are also considered just and adequate. 15. However, the evidence on record would establish that there was no strong intention or motive for the accused to kill the deceased. In fact, even according to the prosecution, the accused entered the house of P.W.1 under a misconception that the deceased was scolding A-1 though the deceased was scolding his own wife- P.W.1. When the accused dragged the second wife of deceased out of the house and beat her, the deceased got enraged and stabbed one Nagaraju, who came along with the accused and the said Nagaraju subsequently succumbed to the injury. Enraged by the stabbing of Nagaraju by the deceased, the accused dragged the deceased and tied him to an electric pole and beat him and A-2 axed the deceased on the head. Had the deceased not stabbed Nagaraju, probably the further incident pertaining to the deceased, might not have occurred. It was the stabbing of the Nagaraju by the deceased that has triggered the further incident of the deceased being tied to an electric pole and beat by the accused and axed by A-2 culminating in the offence. It can, therefore, be seen that the attack on the deceased by the accused was made in the heat of passion and as a reaction and due to grave and sudden provocation on account of stabbing of Nagaraju by the deceased. It cannot be said that there was any intention on the part of the accused to cause the death of the deceased, but it can certainly be held that by their acts of tying the deceased to an electric pole and beating him indiscriminately and A-2 among them hacking the deceased on the head with an axe, they certainly had the knowledge that the injury is likely to cause death. It is, therefore, a clear case where the offence falls within the ambit of Section 304 Part II IPC, as the offence was committed without any premeditation, but in a sudden fight in the heat of passion upon a sudden quarrel. 16. In the circumstances, it is held that A-2 is liable for conviction for the offence under Section 304 Part II IPC and A-3, A-5 to A-10 are liable for the offence under Section 304 Part II read with Section 149 IPC. It is stated that all the accused are poor persons and were eking out their livelihood by doing coolie work and they are in judicial custody since about two years. 17. Having regard to the facts and circumstances of the case, it is considered that the ends of justice would be met by sentencing A-2 to undergo rigorous imprisonment for four years for the offence under Section 304 Part II IPC and A-3, A-5 to A-10 to undergo rigorous imprisonment for four years for the offence under Section 304 Part II IPC read with Section 149 IPC. The conviction and sentence imposed by the trial Court on the accused are accordingly modified. The conviction and sentence of appellants/ A-2, A-3, A-5 to A-10 for the offences under Sections 147 and 148 IPC and A-10 for the offence under Section 324 IPC and A-2, A-3, A-5 to A-9 for the offence under Section 324 read with Section 149 IPC are confirmed. All substantive sentences shall run concurrently with benefit of set off under Section 428 Cr.P.C. 18. In the result, subject to the partial modification of the conviction and sentence to the extent stated above, the criminal appeal is dismissed. __________________ D.S.R.VARMA, J ________________________ G.V.SEETHAPATHY, J 10th November, 2009. Lrkm.