HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1575 OF 2007 Dated:12-07-2011 BETWEEN: Chavala Venkateswarlu and another …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.1575 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) In all, 5 persons including the appellants-A.1 and A.2 were put on trial. A.1 to A.5 were tried for the offence under Section 498-A IPC; A.2 and A.3 were tried for the offence under Section 302 IPC; and A.1, A.4 and A.5 were tried for the offence under Section 302 read with 34 IPC in S.C.No.22 of 2006 on the file of III Additional District and Sessions Judge, Nellore. Learned Sessions Judge by the impugned judgment dated 31.10.2007 convicted A.1 for the offence under Section 498-A IPC and sentenced him to undergo imprisonment for two years and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for three months. Whereas A.2 was convicted for the offence under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for three months. A.1 was found not guilty for the offence under Section 302 read with 34 IPC and A.2 was not found guilty for the offence under Section 498-A IPC. A.3,A.4 and A.5 were acquitted of all charges. 2. The gravamen of the charge against the accused is that A.1 to A.5 subjected P.W.1 to cruelty and in that connection when Tirupalu (hereinafter called as ‘deceased), brother of P.W.1 went to the house of A.1 and P.W.1, A.2 stabbed him with a knife on his shoulder, back of his chest and right cheek, A.3 poked him with a pestle on his neck and throat while A.1, A.4 and A.5 with the common intention assisted them in the commission of offence. 3. The story of the prosecution as narrated during the course of trial is as under: A.1 to A.3 are the brothers, A.4 is their mother and A.5 is the wife of brother of A.4. P.W.1 is the wife of A.1. P.W.2 is the mother of P.W.1 and P.W.3 is the son-in-law of P.W.2. P.W.4 is the daughter-in-law of P.W.2 and the wife of the deceased. Marriage between P.W.1 and A.1 took place 7 years prior to the date of offence. Marital relationship between P.W.1 and A.1 got strained as no children were born to them and on that account P.W.1 was being harassed by A.1 and A.4. On 11.8.2004 A.1 beat P.W.1 and she informed the same to her brother-deceased and P.Ws.2 and 3. Then on 12.8.2004 deceased and P.Ws.2 and 3 came to the house of A.1. But A.1 was not available. On 13.8.2004 at about 7.00 a.m. when A.1 came to the house, the deceased questioned him about the ill-treatment meted out to P.W.1. On that A.1 went out side and gathered A.2 to A.5 and came to the house. A.4 and A.5 attacked P.W.2 by holding her tuft and beat her indiscriminately and they also beat P.W.1. A.2 stabbed the deceased on the left shoulder, back of his chest and right side of the cheek with a knife-M.O.1. A.3 attacked the deceased with a pestle-M.O.2 and beat him on the neck. The deceased received serious injuries and he was shifted to hospital. Upon the requisition of the hospital authorities, P.W.11-Magistrate recorded the dying declaration of the deceased under Ex.P.9 at 12.15 p.m. Later the head constable-P.W.18 recorded the statement of the deceased under Ex.P.14 at 1.30 p.m., on which basis P.W.16-Sub-Inspector registered a case against the accused under Sections 498-A, 307, 324 read with 34 IPC. He examined the witnesses, visited the scene of offence, seized the controlled earth, bloodstained earth and bloodstained clothes from the deceased. While undergoing treatment the deceased died on 17.8.2004. On receipt of death intimation, P.W.16 altered the section of law into 302 r/w 34 IPC and issued altered F.I.R.-Ex.P.21 and he arrested the accused on the same day. P.W.19-Sub-Divisional Police Officer conducted inquest over the dead body of the deceased in the presence of P.Ws.10 and 11, examined the witnesses and sent the dead body of the deceased for post-mortem examination. P.W.17-doctor conducted post-mortem examination over the dead body of the deceased and issued Ex.P.22 opining that the deceased died due to shock due to multiple injuries with mid cerebral artery Embolus (blood clots). After completion of investigation, P.W.19 laid the charge sheet against the accused. On committal, the learned Sessions Judge framed the charges against the accused and read over and explained the same to the accused in Telugu. The accused denied the charges and claimed to be tried. 4. To bring home the guilt of the accused, prosecution examined P.Ws.1 to 19 and marked Exs.P.1 to P.23 besides M.Os.1 to 5. On behalf of defence, no oral evidence was adduced but contradictions of P.W.4 in Section 161 Cr.P.C. statement were marked as Exs.D.1 and D.2. 5. The learned Sessions Judge after appreciation of oral and documentary evidence convicted and sentenced the appellants-A.1 and A.2 as aforementioned. 6. Learned counsel appearing for the appellants-A.1 and A.2 contends that the doctor, who was present at the time of recording the dying declaration of the deceased by the Magistrate or the statement recorded by the Head Constable under Ex.P.14 was not at all examined to prove that the deceased was conscious and coherent and in a fit state of mind to make statement. In Ex.P.14 statement recorded by the Head Constable lengthy details were given and in view of the injuries received by the deceased, it is not possible for him to explain in detail as recorded by P.W.14. When A.3 was acquitted of the charge, convicting A.2 on the same evidence does not arise. A.1 is having two younger brothers apart from A.2. In the dying declaration recorded by P.W.11-Magisrate, the deceased has not specifically named A.2 as the person who stabbed him and whereas, he specifically named A.2 in Ex.P.14 statement. In view of the same, it is unsafe to convict A.2 for the offence under Section 302 I.P.C. P.W.16-investigating officer admitted that P.W.1 in her statement before him has not stated about the harassment meted out by A.1 and that she has also not stated about A.1 leaving the house and collecting A.2 to A.5 and therefore, A.1 cannot be convicted for the offence under Section 498-A I.P.C. 7. Learned Public Prosecutor on the other hand supported the reasoning adopted by the lower Court in convicting A.1 and A.2 by taking us through the entire evidence and the findings of the learned Sessions Judge. 8. P.Ws.5,6,7,8,12 and 13 have not supported the case of the prosecution and were declared hostile. P.W.1 is none other than the wife of A.1. She deposed that A.1 and A.4 used to harass her as no children were born to her and they also threatened her that A.1 would marry again. On 11.8.2004 her sister’s husband P.W.3 came to her and informed her that his sister’s daughter delivered at Dr. Ramachandrareddy’s Hospital, Nellore. Along with her brother-in-law she went outside and telephoned to the deceased. When she returned home, A.1 beat her. Then she went out of the house and telephoned to the deceased and informed him about the harassment meted out by A.1. On 12.8.2004 her elder brother along with her mother-P.W.2 and P.W.3 came to their house. At that time A.1 was not available and they slept in the house. A.1 came late in the midnight and after seeing them he left the house. On the next day morning i.e. on 13.8.2004 at 7.00 a.m. when A.1 came to the house, deceased questioned him why he was harassing P.W.1 but A.1 did not give any answer and left the house. Later he returned home along with A.2 to A.5. Then A.4 and A.5 attacked P.W.2 by caught holding of her tuft and hair and beat her indiscriminately and they also beat P.W.1. When deceased intervened and tried to rescue P.Ws.1 and 2, A.2 stabbed him with a knife on the left shoulder, on his back and on the right side of the cheek. A.3 attached the deceased with pestle and beat him on his neck and poked on the neck indiscriminately. The deceased sustained bleeding injuries and he lost conscious and fell down. She admitted in the cross-examination that A.1 is having two younger brothers and one elder brother. The evidence of P.Ws.2 and 3 is in the similar lines. P.W.4 is the wife of the deceased and she is not an eyewitness to the incident. 9. In the dying declaration recorded by P.W.11-Magistrate under Ex.P.9 on 13.8.2004 the deceased stated that P.W.1 was given in marriage to A.1 about 7 years ago, that A.1 used to abuse and beat P.W.1 every day, that today (13.8.2004) he came to the house of P.W.1 and asked A.1 as to why he was beating and abusing P.W.1. On that A.1 beat him with hands saying as to who he was to ask. His younger brother stabbed with a knife on his right cheek and left shoulder, back portion and caused bleeding injuries. His elder brother beat him with pestle on his neck. Whereas in Ex.P.14- statement recorded by head constable-P.W.14, the deceased specifically mentioned the names of A.2 and A.3. The doctor who conducted the post- mortem examination was examined as P.W.17 and he found the following injuries: “External injuries: 1) 1” sutured wound over the left upper arm 3” below the shoulder joint. 2) 1” sutured wound below the Axilla Mid lane (left) side. 3) 2” sutured would present lateral border of the Axilla, left side. 4) 1 ½ “ sutured would extended angle of the Mandible upto the ear lobulte, right side. Internal injuries: 1) Blood clots present below the right cheek near the angle of the Mandible. 2) Contusion of the carotid artery present (right side). 3) Blood clot present in the middle cereboral arterary stomach contains 200 ml of Bile present. “ According to him, the cause of death was due to shock due to multiple injuries with Mid cerebral artery Embolus (blood clots). 10. The evidence of P.Ws.1 and 2 coupled with the dying declaration of the deceased goes to show that P.W.1 was being harassed by A.1 and A.4 for her not conceiving children and in that connection A.1 used to beat P.W.1. The evidence of P.Ws.1 to 3 is consistent and clear that P.W.1 was subjected to cruelty by A.1. The dying declaration of the deceased also corroborated with the evidence of P.Ws.1 to 3 about the involvement of A.2 in the commission of offence. The report of F.S.L. also shows that the knife-M.O.1 seized from A.2 contained human blood which was identified by P.W.1 though P.Ws.8 and 13, the mediators to the seizure of M.O.1 have not supported the case of the prosecution. Further the motive for harassing P.W.1 by A.1 is clearly established with the evidence of P.Ws.1 and 2 that since no children were born to P.W.1 A.1 used to harass her and on coming to know of the said harassment when deceased came and questioned A.1, he left the house and collected A.2 to A.5 and came to the house and thereupon A.2 stabbed him with knife. Thus the prosecution is able to establish the charge against A.1 for the offence under Section 498-A I.P.C. 11. Coming to A.2, the evidence of P.Ws.1 to 3 also clearly discloses that there was an altercation immediately before the occurrence. Due to that altercation, A.2 picked up the weapon and attached the deceased. Further the post-mortem report and the evidence of doctor clearly shows that due to the blood clots in the blood vessels, the deceased died. Admittedly, the incident took place on 13.8.2004 whereas, the deceased died four days thereafter while undergoing treatment in the hospital. From the said evidence it is clear that A.2 has no intention to cause the death of the deceased. None of the witnesses spoke to the effect that A.2 entered into the house with a knife in his hands. Thus from the evidence of P.Ws.1 to 3, it is evident that there ensued a quarrel between the accused and the deceased immediately prior to the incident. The entire facts and circumstances and the evidence adduced by the prosecution squarely comes under the exception 4 of Section 300 IPC, which runs as under: “Exception 4:- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.” Such an act even though it is culpable homicide will not amount to murder as per the exception 4. The said exception is punishable under Section 304-II, which runs as follows: “304. Punishment for culpable homicide not amounting to murder:- xxxxxx; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 12. In the present case, considering the nature of injury and the medical evidence and as the offence committed by A.2 is without any premeditated intention, he can be convicted for the offence under Section 304-II IPC, but the learned Sessions Judge erred in convicting him for the offence under Section 302 I.P.C. 13. In the result, the conviction imposed on the first appellant-A.1 by III Additional District & Sessions Judge (Fast Track Court) Nellore in S.C.No.22 of 2006, dated 31.10.2007 is hereby confirmed but the sentence is reduced to the period already undergone by him. The conviction and sentence imposed on second appellant-A.2 is hereby set aside and he is found not guilty for the offence under Section 302 IPC. But he is convicted for the offence under Section 304 Part II I.P.C. and sentenced to undergo rigorous imprisonment for a period of five years. 14. The appeal is accordingly allowed in part. . _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J JULY 12, 2011 Tsr.