HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1739 OF 2007 Dated:27-07-2011 BETWEEN: Kurva Gunthala Kistanna and others …Appellants AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1739 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) The appellant Nos.1 and 2 (A.1 and A.2) were put on trial for the offence under Section 302 I.P.C. and the appellant No.3 (A.3) was put on trial for the offence under Section 302 read with 34 I.P.C. in S.C.No.4 of 2003 on the file of III Additional District and Sessions Judge (Fast Track Court), Gadwal. By judgment dated 27.11.2007 they were convicted for the said offences and were sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- each, in default, to suffer rigorous imprisonment for one year. Though A.2 was tried for the offence under Section 324 I.P.C., he was acquitted of the said charge. Hence the present appeal by A.1 to A.3. 3. The story of the prosecution as narrated during the course of trial is as under: P.W.1 is the wife and P.W.2 is the daughter of Kurve Gunthala Chandranna (hereinafter referred to as ‘deceased’). The deceased and A.1 are own brothers. A.6 is the wife and A.2 to A.5 are the sons of A.1. Both the brothers i.e. the deceased and A.1 reside in two adjacent portions. Two months prior to the incident, there was a dispute between them as the deceased wanted to construct a staircase for which the accused objected. About three days prior to the incident, the Government officials in connection with Janmabhoomi programme orally permitted to construct the said staircase, but the accused did not allow the deceased to construct the same. On the date of incident i.e. on 7.6.2002 in the evening at 6.00 p.m. while P.Ws.1,2 and the deceased were at their house, A.3 went near to the house of the deceased with two bullocks and drew the same close to them. Then P.W.1 raised objection for driving the bullocks towards them. On that A.1 armed with a cart peg beat the deceased on his head causing bleeding injury. When the deceased fell down, A.2 came there and beat him on his head with a cart peg. A.3 beat on his neck with a stick. A.4 beat on his back and A.5 and A.6 pelted stones. When P.Ws.1 and 2 tried to intervene, A.4 beat P.W.1 and A.2 beat P.W.2. Thereafter on seeing P.W.3 and others accused fled away. The deceased was shifted to Government hospital, Gadwal and while undergoing treatment, the deceased succumbed to the injuries on the same day. At about 10.00 p.m., P.W.1 lodged a report-Ex.P.1 with the police, on the basis of which, P.W.11-Sub-Inspector of police, Gadwal Police Station registered a case in Crime No.40 of 2002 and issued F.I.R. under Ex.P.18. Further investigation was taken up by P.W.9- Circle Inspector of Police. During the course of investigation, he visited the scene of offence, drafted the scene of offence panchanama, held inquest over the dead body of the deceased in the presence of P.W.5 and sent the dead body for post-mortem examination. On 8.6.2002, on receipt of requisition, P.W.10-Civil Assistant Surgeon examined P.Ws.1 and 2 and issued wound certificates-Exs.P.16 and 17 respectively. On the same day, P.W.8-Assistant Professor in Forensic Department held autopsy over the dead body of the deceased and opined that the cause of death was due to head injury. Ex.P.10 is the post-mortem report. P.W.9 arrested the accused on 13.6.2006 and at their instance, cart pegs were recovered in the presence of P.W.6 under Exs.P.11 and 13. After receipt of relevant documents and on completion of investigation, P.W.9 laid the charge sheet against the accused. On committal, the learned Sessions Judge framed the charges against the accused-appellants herein read over the same and explained them in Telugu. The accused denied the charges and claimed to be tried. 4. To bring home the guilt of the accused-appellants herein, prosecution examined P.Ws.1 to 11 and marked Exs.P.1 to P.18 besides M.Os.1 to 11. On behalf of defence, no oral or documentary evidence was adduced. 5. The prosecution mainly relied on the evidence of eyewitnesses- P.Ws.1 and 2. P.W.1 is the wife and P.W.2 is the daughter of the deceased. Admittedly, the deceased and accused are the close relatives and staying in the adjacent portions. P.W.1 deposed before the Court that because the appellant No.3-A.3 drove the bullocks in a way near to her, she raised objection. On that A.3 started quarreling with her. In the meanwhile, appellant No.1-A.1 came there with a cart peg and beat on the head of the deceased, which caused bleeding injury and due to the said injury, the deceased fell down. Then A.2 came there and beat the deceased on the head with a cart peg. A.3 beat on the backside neck of the deceased with a stick, as a result of which, blood came out from the mouth of the deceased. She further stated regarding the implication of A.4 to A.6, who are not the appellants before this Court. She stated that she shifted the deceased to the Government Hospital with the help of P.W.2 and others. Immediately, she went to the police station and lodged Ex.P.1- complaint. 7. P.W.2, who is the daughter of deceased and P.W.1 deposed in similar lines as that of P.W.1. According to her, the entire occurrence took place in view of the behaviour of A.3 as he drove the bullocks endangering to them and when P.W.1 questioned the same, A.1 came there and gave a blow on the head of the deceased with a cart peg. A.2 also hit on the back of the head of the deceased with a stick. A.3 also beat on the left ear of the deceased with a cart peg. P.Ws.1 and 2 further stated that when they intervened to save the deceased, they were also beaten by the accused. Ex.P.1-complaint was scribed by some other person upon the dictation by P.W.1. In Ex.P.1 it is not stated that the dispute arose due to the behaviour of A.3 in driving the bullock cart, but it is stated that due to the dispute between the families in connection with construction of a stair case A.1 to A.3 and other accused, who are not appellants herein caused injuries on the deceased with cart pegs and also with sticks. Further they pelted stones over the deceased. 8. Sri C.Padmanabha Reddy, learned senior counsel appearing on behalf of the appellants contended that the evidence of P.Ws.1 and 2 suffers with full of improvements and they are not specific as to the overt acts regarding the appellants herein. The only evidence available is that A.1 caused injury on the head of the deceased. Whereas when compared with Ex.P.1, nothing is stated regarding the injuries caused by the other accused. It is also brought to our notice that though specific overt act was attributed against A.3 stating that he caused injury on the neck of the deceased, there was no corresponding injury at all. For better appreciation of the said contention, we would like to refer the evidence of P.W.8, who conducted the autopsy over the dead body of the deceased. He found the following injuries: “1. Laceration of skull, (Head) on left side ½” x ¼”, 2. Small injury incised below left eye, ½” x ¼” x ¼”, 3. Swelling on left side of Jaw, 4. Bleeding through both nostrils, both ears, 5. Blood clots present, beneath skin on both side of head, 6. Fracture, skull on left side of head, extending from left ear to back of the head, 7. Fracture, 10 cm. In length over the right side skull, extending from right ear to back of head.” P.W.8 opined that the cause of death of the deceased is due to head injury, and that the injury Nos.1,6 and 7 could be possible with blunt object, particularly with a cart peg. His entire cross-examination is re- produced hereunder: “ It is true the skin over the skull being drawn tightly by nature. It is true that the skull is almost in the shape of coconut shell after removal of the fibre. It is true that if a person is hit on one side of the skull, the fracture will occur not only on the place of hit but also else where of the skull. It is also medically known ‘contra coup’. It is true that with one stroke the injuries No.1,6 and 7 could be possible to occur simultaneously. It is true that the impact of the injuries No.1,6 and 7 on the skull would leave injuries No.4 and 5 as observed in my PME. Injury No.4 and 5 are only findings but they are not injuries independently. It is true that injury No.3 is a superficial injury. I did not find any corresponding internal, external observations to injury No.3. It is true that swelling of jaw could be possible even due to tooth ache. It is true that injuries 1,6 and 7 could be possible by any person by falling on a hard surface from a high pedestal at a considerable height.” Further as contended by the learned senior counsel appearing for the appellants injury Nos.6 and 7 are corresponding injuries to injury No.1 i.e. the injury caused by A.1 as per the evidence of the prosecution witnesses. There is no injury on the neck as spoken to by P.Ws.1 and 2. Though he caused injuries on the neck there is no corresponding injury. As far as injury Nos.2 to 5 are concerned, injury Nos.2 and 3 are superficial injuries, and 4 and 5 are only findings but not injuries independently. 8. Taking into consideration the evidence of P.Ws.1 and 2 and the medical evidence, it is evident that A.1 caused the head injury, which resulted the other injuries due to which, the deceased succumbed to death. As far as A.2 and A.3 are concerned, even though their presence at the scene of offence is established by the evidence of P.Ws.1 and 2 and also their involvement in the commission of offence, the said evidence is not corroborated with the medical evidence. In the absence of any corroboration by medical evidence, we are of the view that the conviction and sentence against A.2 and A.3 cannot be sustainable and therefore, the appeal is liable to be allowed as against them. 9. As far as appellant No.1-A.1 is concerned, the evidence of P.Ws.1 and 2 is cogent and consistent and is corroborated by medical evidence. He is the person who caused the fatal injury on the head of the deceased by cart peg. At the same time, whether the homicidal caused by appellant No.1-A.1 will amount to murder is the question to be decided. On perusal of the evidence, it is categorically stated by P.Ws.1 and 2 that the occurrence took place in a spur of the moment and due to the sudden quarrel, appellant No.1-A.1 caused the injury on the head of the deceased with a cart peg, which is available in the villages everywhere. The incident was also occurred in between the houses of the accused and deceased since they are neighbours. Further the appellant No.1-A.1 has caused only one injury on the deceased i.e. injury No.1. But at the same time, he had the knowledge that such injury caused on the head would sufficient to cause the death of the deceased. Hence, we are of the view that A.1 has committed the culpable homicide not amounting to murder. The act committed by A.1 would attract only the offence under Section 304- II I.P.C. Accordingly, the conviction imposed on A.1 is liable to be modified to one under Section 304-II I.P.C. instead of 302 I.P.C. 10. In the result, the Criminal Appeal is allowed so far as appellants 2 & 3-accused 2 & 3 are concerned. The convictions and sentences imposed against the appellants 2 & 3-accused 2 & 3 for the offences under Section 302, and 302 read with 34 I.P.C. respectively, by III Additional District and Sessions Judge (Fast Track Court), Gadwal in S.C.No.4 of 2003 are hereby set aside. The said appellants are found not guilty of the said charges and they are acquitted of the same. They shall be set at liberty forthwith, if not required in any other crime. The fine amount, if any, paid by them shall be refunded. So far as appellant No.1-accused No.1 is concerned, the appeal is partly allowed. The conviction and sentence imposed against the appellant No.1-accused No.1 for the offence under Section 302 I.P.C. are hereby set aside. He is found not guilty of the said charge and he is acquitted of the same. But, he is found guilty for the offence under Section 304-II I.P.C. and accordingly convicted for the said offence and sentenced to undergo rigorous imprisonment for seven years. The fine amount is unaltered. The period already undergone by him is directed to be given set off under Section 428 Cr.P.C. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J JULY 27, 2011 Tsr.