THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.128 of 2008 JUDGMENT (Per the Hon’ble Sri Justice A. Gopal Reddy): The appellant-Dharanikota Purnachandra Rao @ Pandu, who was put on trial for the offence under Section 302 I.P.C in S.C.No.532 of 2006 on the file of II Additional Sessions Judge, Guntur, for causing the death of Annam Peda Mastan Rao @ Mastan Rao (hereinafter referred to as “the deceased”), on the early hours of 27.09.2006 by throwing him into Tungabhadra Drain Canal, was found guilty of the said offence, convicted therefor and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default of payment of fine to undergo simple imprisonment for a period of one year. Challenging the conviction and sentence, the appellant preferred this appeal. The case of the prosecution against the accused, as unfolded during the course of trial, is briefly stated as under: The appellant, the deceased and all material witnesses are residents of Nidubrolu Village. The deceased married one Rajamma about 16 years prior to his death. But as the deceased was not keeping good health, his wife left him about 10 years prior to his death, married another person and residing in Tenali, whereas the deceased was residing with his brother-P.W.1. While so, on the intervening night of 26/27.09.2006 at about 3.00 hours, the deceased left from the house of P.W.1 to have a cup of tea at Gate Centre. On the way, the accused met the deceased and insisted to give some money. When the deceased expressed his inability, a quarrel took place between the deceased and the accused in front of the shop of P.W.6-Alapati Subba Rao. On noticing the same, P.W.6 interfered in the matter, chastised the accused and sent him away. But, while leaving the place the accused openly threatened that he will kill the deceased by throwing him into Tungabhadra Drain Canal. Thereafter, the deceased also went away from that place and sat on the cement protector of culvert of Tungabhadra Drain Canal Bridge. On seeing the same, the accused returned back and demanded the deceased to give money and picked up quarrel. Thereafter, the accused lifted the deceased and when he was about to throw the deceased into Tungabhadra Drain Canal, P.W.3-Sonti Nageswara Rao came to the spot and tried to rescue the deceased. But, the accused averted interference of P.W.3 and threw away the deceased into Tungabhadra Drain Canal. Then P.W.3 rushed to the house of P.W.1 and informed about the incident to him. Thereafter, P.W.1 and others rushed to Tungabhadra Drain Canal and made efforts to search for the body of the deceased. On coming to know that the dead body was floating near Kotaiah’s Mill, P.Ws.1 and 2 and others rushed there and found the dead body of the deceased. Then P.W.1 took the dead body of the deceased to his house and thereafter lodged a report – Ex.P.1 to the police at 8.30 p.m. Based on the said report, P.W.9-Sub Inspector of Police, Ponnur Town Police Station registered a case in Crime No.115/06 for the offence under Section 302 I.P.C., issued Express F.I.R to all concerned Officers and submitted the original F.I.R- Ex.P.6 to the Court. On 27.09.2006 at 9.30 p.m., on receiving express F.I.R, P.W.10-the Inspector of Police, Ponnur Circle, took up investigation and posted a guard near the dead body of the deceased. On the next day, he secured the presence of mediators and went to the scene of offence situated at Tungabhadra Canal Bridge, prepared scene of offence observation report-Ex.P.2 and rough sketch of the scene of offence – Ex.P.7, conducted inquest over the dead body of the deceased in the presence of panchayatdars i.e., P.W.5 and another and thereafter, sent the dead body to Government Hospital for conducting Post Mortem Examination. During the course of investigation, he examined P.Ws.1 to 4 and 6, recorded their statements and arrested the accused on 30.09.2006 at 12.00 Noon. P.W.8-Civil Assistant Surgeon of Area Hospital, Bapatla conducted Post Mortem Examination over the dead body of the deceased and issued Ex.P.5-Post Mortem Certificate opining that the cause of death was due to asphyxia due to drowning. After completion of the investigation and receipt of relevant reports, P.W.10 filed charge sheet. On committal, the learned Sessions Judge framed a charge against the accused for the offence under Section 302 I.P.C. When the same was read over and explained to the accused, he pleaded not guilty and claimed to be tried. To substantiate its case, the prosecution examined P.Ws.1 to 10 and got marked Exs.P.1 to P.7. After completion of the prosecution evidence, the accused was examined under Section 313 Cr.P.C., with regard to the incriminating material made against him by the prosecution, which he denied. However, though none were examined, Ex.D.1 contradiction made in 161 Cr.P.C statement of P.W.4 was marked on behalf of the accused. The learned Sessions Judge, on appreciation of the oral and documentary evidence, found the accused guilty of the offence under Section 302 I.P.C and accordingly convicted and sentenced him as stated supra. Hence, this appeal by the appellant/accused. The appellant was provided legal assistance in preferring the present appeal by appointing Sri Jogram Tejwavath, learned counsel on his behalf. Learned counsel for the appellant strenuously contends that when P.W.3 saw the accused throwing the deceased into Tungabhadra Drain Canal and informed the same to P.Ws.1 and 2 at about 4.00 a.m, they have not lodged the report till 8.30 p.m, and therefore, there is a delay in lodging the report and the same has not been properly explained. He further contends that the evidence of P.W.6 shows that he saw the accused demanding the deceased for money and quarrelling with him at 3.30 a.m, whereas the evidence of P.W.3, who is projected as an eyewitness, shows that he saw the accused throwing the deceased into Tungabhadra Drain Canal at 3.00 a.m and that he informed to the police about the said incident at 4.30 or 5.00 a.m, but the police have not registered any crime. Therefore, P.W.3 is not an eyewitness to the incident. Hence, the conviction and sentence recorded by the trial Court is liable to be set aside. On the other hand, the learned Additional Public Prosecutor, who has taken us through the impugned judgment, sought to sustain the conviction and sentence recorded against the accused. In the light of the above submissions, the point that arises for consideration is whether the prosecution could be able to bring home the guilt of the accused beyond all reasonable doubts and the impugned judgment is liable to be set aside or modified? P.W.1, who set the criminal law into motion by lodging Ex.P.1- report, deposed that the deceased was his elder brother; that on the intervening night of 26/27.09.2006 at 3.00 a.m, the deceased woke him up and said that he was going to gate centre to have a cup of tea; that one hour thereafter, P.W.3 came and informed him that the accused threw the deceased into Tungabhadra Drain Canal when the deceased was sitting on the sluice; that immediately, himself, P.W.2, L.W.3 and L.W.4 went in search of the deceased in Tungabhadra Drain Canal, but they could not trace out the dead body upto 7.00 p.m and that on coming to know about the dead body floating near Kotaiah’s Mill, they went there and took the dead body of the deceased to his house and reported the matter to the police. P.W.2, who is the nephew of the deceased and P.W.1, corroborated the evidence of P.W.1 stating that on 29.07.2006, P.Ws.1 and 3 came to his house, woke him up and informed about the accused throwing the deceased into Tungabhadra Drain Canal. P.W.3, who is a rickshaw puller and who is an important witness, deposed that on 26/27.09.2006 about 3.00 a.m when he was pulling his rickshaw to the Railway Station for hire and when he reached Tungabhadra Canal Bridge, he found the deceased and the accused scuffling and during the said scuffling the accused lifted the deceased and threw him into Tungabhadra Canal. When he questioned the same, the accused came upon him and threatened that he would kill him and due to fear, he went away and informed the same to P.Ws.1 and 2. Himself and P.Ws.1 and 2 searched for the deceased in Tungabhadra Drain Canal, but they could not trace him. At about 7.00 p.m he heard about the tracing of the dead body of the deceased. In the cross examination, P.W.3 stated that he used to run rickshaw from 6.00 p.m to 6.00 a.m and was going to Railway Station in order to secure the persons from there; that on the date of occurrence, he slept in Repalle Bus Stand, woke up at 3.00 a.m and proceeded towards Railway Station with a hope that he may fetch some passengers at Railway Station as a Train was scheduled to arrive by that time; that the deceased and the accused were quarrelling at 2nd khana when he entered the bridge from the side of town to go to Railway Station and saw the galata from a distance of 10 or 15 feet; that after sawing the galata, he stopped his rickshaw and rushed to the place where the accused and deceased were struggling; that even before he reached that place, the accused threw the deceased into Tungabhadra Drain Canal and that he also informed the police about the said incident at about 4.30 or 5.00 a.m. P.W.6, who is doing business in old papers, deposed that on the intervening night of 26/27.09.2006 at about 3.00 a.m while he was sleeping in his house, he heard a galata near his shop and found the accused demanding the deceased money and quarrelling with him; that he admonished the accused stating that since the deceased was a sick person, not to quarrel with him; that the accused and the deceased went away; that after one hour, P.W.1 along with his sister’s son came and enquired about the quarrel that took place between the accused and the deceased and that he informed that he pacified the accused and sent away both the accused and the deceased. P.W.8, who conducted Post Mortem Examination over the dead body of the deceased, found two abrasions above the left ankle joint and below right knee joint. He issued Ex.P.5- Post Mortem Certificate opining that the deceased died due to asphyxia due to drowning. Even though P.Ws.3 and 6 were sufficiently cross-examined on behalf of the accused, their evidence has not been shaken with regard to the manner in which the incident had happened. The contention advanced by the learned counsel for the appellant that even though P.W.3 informed P.W.1 about the accused throwing the deceased into Tungabhadra canal, the report has not been lodged promptly, though attractive, but the same does not merit consideration for the simple reason that P.Ws.1 and 2 and others who searched for the deceased were expecting that the deceased may come out or some body may trace him. Until the dead body of the deceased was traced, they were not confirmed about his death and within 1½ hour of tracing the dead body of the deceased, the report has been lodged. Therefore, it cannot be said that there was delay in lodging the report. Even if we exclude the confessional statement of the accused under Ex.P.4, there remains the evidence of P.W.3, who is an independent witness and who has no enmity against the accused. P.W.3 promptly informed about P.W.1 about his witnessing the accused throwing the deceased into Tungabhadra Drain Canal and the same is also reflected in Ex.P.1-report. Though the prosecution could able to prove that it is the accused, who committed the offence, but it failed to establish the premeditation on the part of the accused to kill the deceased. After scanning the entire evidence, we are of the opinion that in the absence of the existence of common object, the accused is proved to have committed the offence of culpable homicide without pre- meditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 Part II I.P.C. Hence, the conviction and sentence recorded against the accused for the offence under Section 302 I.P.C is liable to be set aside. Accordingly, the conviction and sentence recorded against the appellant/accused for the offence punishable under Section 302 I.P.C in Sessions Case No.532 of 2006, dated 23.08.2007, by II Additional Sessions Judge, Guntur, are set aside. In the alternative, the appellant —accused is convicted for the offence under Section 304 Part II I.P.C and sentenced to undergo Rigorous imprisonment for seven years. The remand period during the investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. The fine amount imposed on him remains unaltered. The Criminal Appeal is partly allowed to the extent indicated above. __________________________ A.GOPAL REDDY, J __________________________ SAMUDRALA GOVINDARAJULU, J Date: 29.11.2011 va