IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY FIRSST DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1710 OF 2007 Between: Banawath Vittal … Appellant And State of A.P., rep. by Public Prosecutor, Hyderabad … Respondent This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1710 OF 2007 JUDGMENT: - (Per Hon’ble Sri Justice Raja Elango) The appellant/sole accused, who was put on trial for the offence punishable under Section 302 IPC in Sessions Case No.189 of 2007 on the file of II Additional Sessions Judge, Fast Track Court, Adilabad was found guilty and was sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/- in default to suffer SI for one month by judgment, dated 26.10.2007, preferred this appeal challenging the conviction and sentence recorded against him. 2. The prosecution story as unfolded during the course of trial is briefly stated as under:- About five years prior to October 2006, PWs.1 and 2 gave their daughter Kalavva (hereinafter referred to as “the deceased”) in marriage to the accused. After one year they were blessed with one daughter. After the birth of the child, the accused had divorced his wife Kalavva. But subsequently the accused had again approached P.Ws.1 and 2 and requested them to send the deceased with him as he wanted to live with her. In the presence of the elders, the deceased was sent along with the accused. Later she again conceived and delivered a dead male child. The accused brought the deceased to the house of P.Ws.1 and 2 and after three days he came again to the house of P.Ws.1 and 2 and demanded them to send the deceased with them, but P.Ws.1 and 2 refused to send Kalavva as her health condition was not good due to recent delivery. On 18.10.2006, the accused went to the house of P.Ws.1 and 2 and after dinner they went to sleep and at mid night the accused stabbed the deceased on her stomach with knife and caused severe bleeding injury and thereby she started raising cries. P.Ws.1 and 2 rushed to the spot and shifted the deceased to the hospital, but unfortunately she died in the hospital. P.W.1 presented a report to the police. Subsequently, the accused was apprehended on 22.10.2006 and on interrogation, the accused confessed to have killed his wife and the knife used in this case was also seized at the instance of the accused. 3. On committal, the learned Sessions Judge, framed charge under Section 302 IPC and when the same was read over to the accused in Telugu, he denied the same and claimed to be tried. 4. In support of its case, the prosecution got examined P.Ws.1 to 14 and got marked Ex.P1 to P21 and M.Os.1 to 8. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. on the incriminating evidence produced against him. On behalf of the accused, D.W.1 was examined and Ex.D1 was marked. 5. The learned Sessions Judge on appreciation of the oral and documentary evidence found the accused guilty of the charge framed against him and sentenced him to imprisonment as aforementioned. 6. Heard both sides and perused the entire records. 7. The point that arises for consideration is: - “Whether the prosecution proved the guilt of the accused for the offence under Section 302 IPC beyond reasonable doubt?” P O I N T : - 8. P.W.1, who is the father of the deceased, stated that the marriage of his daughter was performed with the accused five years prior to the occurrence and that there were disputes between the accused and the deceased, since the deceased gave birth to a female child. Subsequently, the accused also obtained customary divorce and lived separately. After some time, the accused approached through elders to take back the deceased and want to continue his marital life. On the fateful day when the accused had dinner in the house of P.W.1, P.W.1 informed that since the deceased is not well and she being very week, he can send her after some time. On the night he advised the accused and the deceased to stay in P.W.3’s house, who is a close relative of P.W.1. On the night by 12 midnight he heard the cries. On hearing the cries, he went to P.W.3’s house. There he saw the deceased with bleeding injuries on her stomach and the accused is running from the place of occurrence. P.W.2, mother of the deceased, who is not an eye witness to the occurrence, deposed about her daughter’s marriage, subsequent quarrels and the customary divorce and the visit of the accused to their house on the date of occurrence. 9. P.W.3, who is closely related to the deceased, deposed that she knew both the accused as well as the deceased. On the date of occurrence, the deceased and the accused stayed in her house and they went for sleep after 8 O’clock completing their dinner. By 12 O’clock she heard the cries of the deceased and she was under the impression that some thieves might have entered into the house. When she entered the room she found the accused running away with knife. The deceased informed him that the accused stabbed her in stomach with knife and ran away. She further informed that the accused harassed and stabbed her, but she did not inform him for what reason he had harassed and stabbed her. P.W.4, who is a resident of the same village and who is a co-brother of P.W.1, deposed that he was informed that the accused had stabbed the deceased with a knife in her stomach and ran away. P.W.5, who is a jeep driver, deposed that on the date of occurrence by 12 O’clock midnight P.W.1 and some others went his house and asked him to bring his jeep, in order to shift his daughter to the hospital, who was in a serious condition. He further deposed that he accompanied P.W.1 and the deceased (the injured) to the police station and from there to the hospital. While traveling, P.W.1 informed that the accused committed the crime. P.W.6, brother-in-law of the accused, has not supported the case of the prosecution. P.W.7, who is a circumstantial witness, deposed that on hearing the cries by 12 O’clock mid night on the date of occurrence he went to the house of P.W.3 and saw the accused running away with the knife and throwing the knife near the pit by the side of the road. He went inside the house and saw the deceased with bleeding injuries. P.W.8 deposed that he was informed that the accused after obtaining divorce came to the village of the deceased along with his elder sister and his brother-in-law and expressed his willingness to take the deceased again with him. 10. P.W.9, who is a photographer, deposed about taking photographs of the deceased under Exs.P5 to P8 with corresponding negatives under Exs.P9 to P12. P.W.10, who is a jeep driver, deposed about conducting of inquest on the dead body of the deceased under Ex.P13 inquest report. P.W.11, who is also a jeep driver, deposed that he found the accused in the custody of the police at that time. After his arrest he confessed regarding the knife thrown by him. He further deposed that he accompanied the accused along with the investigating officer to the place where he recovered the knife under Ex.P15 recovery panchanama and that Ex.P14 is the confessional panchanama of the accused. 11. P.W.12, who is a Civil Assistant Surgeon, deposed that on receipt of the requisition from the C.I. of Police, he conducted post mortem examination on the dead body of the deceased and issued Ex.P16 post mortem report opining that the death is due to hypovolumic shock due to massive internal haemorrhage and injury to vital organs like stomach, spleen, liver due to a sharp weapon like knife. He found the following internal injuries. 1. The Whole abdomen peritoneum is filed with free blood amount to 2½-3 liters approximately (Hemoperitonium). 2. Stomach: There is 1 cm Stab wound present on the lower side and (N.C) end of the stomach injury. Stomach is empty and pale. 3. Spleen: There are 2 stab injuries with bleeding present on the spleen. Pale in colour. Size ½ to 1 cm each. 4. Liver: There is a 1 cm Stab injury present upon the lower side of the liver with bleeding. Liver is pale. 12. P.W.13, who is the Circle Inspector of police, deposed about conducting of investigation on the basis of crime registered in crime No.101 of 2006 for an offence under Section 307 IPC; visiting the scene of offence; seizure of material objects; conducting inquest over the dead body in the presence of panchayatdars; examination of witnesses; preparation of rough sketch to the scene of offence and filing of chare sheet. P.W.14, who is working as the S.I. of police, deposed about presentation of written report by P.W.1 under Ex.P1; registering the case under Section 307 IPC; examination of some of the witnesses; alteration of F.I.R. from Section 307 IPC to Section 302 IPC. 13. To rebut the evidence adduced by the prosecution, the accused examined himself as D.W.1. In the cross-examination, D.W.1 deposed that after divorce he never went to the house of the deceased. 14. Learned counsel for the appellant contended that in the entire case of the prosecution, nowhere it is stated the motive for the commission of the crime and there is no witness except the interested witness to substantiate the case of the prosecution. Learned Public Prosecutor contended that the prosecution established its case without any discrepancies and by cogent evidence. 15. The evidence of P.Ws.1, 3, 4 and 5, clearly discloses that after divorce the accused visited the village; stayed along with the deceased in the house of P.W.3 and after commission of the crime, he ran away from the place with a knife. The complaint in the present case is lodged by P.W.1 within two hours i.e., by 02:00 AM before the police. It is argued by the learned counsel for the appellant that the accused was implicated intentionally in the present crime. If really the accused is not the person, who has visited the place of occurrence after the divorce, it is highly unbelievable to understand how a complaint can be lodged within two hours after the incident implicating the accused. As argued by the learned counsel for the appellant, there is no motive for the commission of the crime. Certainly there is also no motive for the P.W.1 to implicate the accused in the present crime. The evidence of P.Ws.1, 3, 4 and 5 is cogent in nature, which establish the presence of the accused and the same is supported by the evidence of the Doctor that the death is homicidle in nature. But at the same time, the other circumstances also go to show that on the date of occurrence there is no quarrel between the deceased and the accused. Further, it is also not the case of P.W.1 that the accused had any intention to commit crime more particularly causing the death of the deceased. The accused has visited the house and requested P.Ws.1 and 2 to send their daughter to continue her marital life. The evidence of P.W.3 also is that there was no quarrel between the deceased and the accused on the night when they slept in her house. If really the accused intended to cause the death of the deceased, he would have caused number of injuries whereby she is not in a position to defend herself. Further, it is the case of all the witnesses that immediately after the incident the accused ran away from the place of occurrence. The injury also is a simple stab injury on the stomach of the deceased. The opinion of the Doctor, who issued Ex.P16 postmortem report, is that the death is due to haemorrhage of blood. So, taking into consideration of the entire evidence adduced by the prosecution, we are of the view that the accused is not intended to commit the crime of murder. It is a culpable homicide not amounting to murder, but the accused have the knowledge that the said injury can cause the death. When the death is caused without any premeditated intention; the injury is also simple in nature and in view of the fact that the accused ran away from the place of occurrence, we are of the view that the conviction of the appellant under Section 302 IPC imposed by the trial court can be modified into one under Section 304 Part II IPC. 16. In the result, the conviction and sentence recorded by the II Additional Sessions Judge, (Fast Track Court), Adilabad vide judgment, dated 26.10.2007, in Sessions case No.189 of 2007, against the appellant for the offence punishable under Section 302 of IPC is hereby modified into one under Section 304 Part II IPC. He is accordingly convicted and sentenced to undergo Rigorous Imprisonment for a period of five years. The Criminal Appeal is partly allowed to the extent indicated above. _____________________ A. GOPAL REDDY, J __________________ RAJA ELANGO, J July 21, 2011 lmv HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1710 OF 2007 21.07.2011 lmv