HON’BLE SRI JUSTICE B.N.RAO NALLA Criminal Appeal No.1034 of 2004 JUDGMENT: The sole accused in S.C.No.281 of 1998 on the file of the Court of V Additional Sessions Judge, West Godavari at Eluru was found guilty for the offence under Section 304 Part-II IPC, though she was charged for the offence under Section 302 IPC and accordingly, she was convicted and sentenced to undergo simple imprisonment for a period of five years and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for one month for the said offence by the said Court by its order dated 24.5.2004. The said accused, aggrieved by the impugned judgment of conviction of the said trial Court, preferred this appeal inter alia contending on the following grounds: (i) that the trial Court had failed to appreciate the evidence and other material on record in proper perspective; (ii) that the trial Court failed to see that P.Ws.1 to 4 and 7 were interested witnesses and there was discrepancy in their evidence; (iii) that the trial Court failed to notice that the presence of P.Ws.3 and 4 was doubtful at the scene of offence; (iv) that the trial Court failed to appreciate the fact that the deceased did not succumbed to the injuries alleged to have been caused by the accused since she died two days after the incident; and (v) that the trial Court ought to have seen that medical evidence did not support the case of the prosecution. 2. The facts in brief are as follows: That the deceased is the wife of P.W.2. That during after noon of 27.10.1996, P.W.7 the niece of the deceased was collecting water from the Panchayat tap along with others, while so, the accused came there, pushed P.W.7 away and started collecting water. When PW.7 questioned, the accused beat P.W.7 with hands by catching hold of her tuft. That thereafter, P.W.7 informed the deceased about the incident and on that, there was a quarrel between the accused and the deceased. During the course of which, the accused beat the deceased with M.O.1, a brass vessel on the back of her neck, causing bleeding injuries. Thereafter, P.W.1, brother of the deceased, after reaching home from cooli work, took his injured sister to Jangareddigudem Police Station. P.W.6-Head Constable of Jangaeddigudem Police Station, who was recorded her statement in Ex.P3 and referred her to Government Hospital for treatment, after making a General Dairy Entry. That on 30.10.1996, P.W.6 received death intimation of the deceased from Government Hospital in Ex.P4 and thereafter, P.W.6 registered a case in Crime No.159 of 1996 against the appellant/accused for the offence under Section 302 IPC and issued Express First Information Report to the concerned officials. That after completion of the investigation, a charge sheet was laid into the Court of II Additional Judicial Magistrate of First Class, Kovvur and the said Court committed the same to the Court of Sessions, West Godavari, Eluru in P.R.C No.9 of 1997 and the same was registered as S.C No.281 of 1998 and was made over to V Additional Sessions Judge, Eluru for trial and disposal according to law. 3. That on the accused pleading not guilty to the charge, he was tried for the same. In order to prove its case, the prosecution had examined P.Ws.1 to 10 and got marked Exs.P1 to P8 and M.O.1, on its behalf, whereas, no witnesses were examined and no documents were marked on behalf of the accused. 4. The Trail Court, taking into consideration the evidence of the prosecution witnesses and other material on record came to a conclusion that the accused was not guilty for the offence under Section 302 IPC but she was guilty for the offence under Section 304 Part-II IPC and accordingly, the accused was convicted and sentenced as has already been stated herein above in paragraph No.1 supra. 5. The learned counsel for the appellant/accused raised the self same grounds as he has raised in the grounds of revision. 6. The learned counsel for the appellant/accused contends that P.W.3, 4 and 7 were examined as eye witnesses to the incident, however, there are discrepancies in their evidence, though, the trial Court referred to them as minor discrepancies. But the trial Court failed to extend at least the benefit of doubt to the accused. He further submits that P.W.1 is brother of the deceased, P.W.2 husband of the deceased and their evidence ought not to have been considered by the trial Court since they were colluded and interested witnesses. So also the evidence of P.W.7 who is the niece of the deceased, P.W.5 along with L.W.13 – Yeleti Subba Rao acted as mediators to Ex.P1- scene of offence observation report and recovery of MO.1-brass vessel. Though M.O.1 is alleged to have been recovered from the scene of offence, it does not bear the name of the accused and it bears the name of some one else. Therefore, the possibility of planting M.O.1 for the purpose of the case cannot be ruled out. That P.W.5 and L.W.13-Yeleti Subba Rao acted as mediators to Ex.P2-inquest panchanama. It is in the evidence of P.W.5 that as mediator, he along with L.W.13-Yeleti Subbarao opined that the deceased had died due to beating of the accused by Ex.M.O.1-brass water vessel. Further, it is contended that the medical opinion is otherwise. P.W.10-medical witness, who conduced postmortem examination over the dead body of the deceased and who issued Ex.P8-Postmoretem Certificate, has clearly stated in his cross-examination that in general the injuries shown in Ex.P8 are not serious by nature. However, the cause of death is shown in Ex.P8 as “due to cardio respiratory failure due to shock due to intra gremial hemorrhage (secondary hemorrhage) from blood vessel. Rupture due to dissolved blood clot”. Therefore, it is contended that the evidence of P.W.5-mediator to Ex.P2-inquest report that the deceased died due to beat by the accused by M.O.1 is not correct in view of testimony of P.W.10-medical witness. P.W.8 is the Inspector of Police, who has laid the charge sheet into the Court, after verifying the investigation done by P.W.9. His evidence is not material either to prove or disprove the case of the prosecution. P.W.9 is the Investigating Officer, who has only testified as to the manner he has investigated the case. 7. On the other hand, the case of the prosecution is that the evidence of P.Ws.3, 4 and 7, who are the direct eye witnesses to the incident, proved its case. The accused had assaulted the deceased with a brass water vessel at the time of collecting water from a public tap. That other witnesses also, in general, supported the case of the prosecution. Moreover, the trial Court by taking a lenient view, come to the conclusion and found the appellant/accused guilty for the offence under Section 304 Part-II IPC, though a charge sheet was laid against her for the offence under Section 302 IPC. Therefore, it is contended that the impugned judgment of conviction as passed by the trial Court cannot said to be perverse nor it can be said that the trial Court had committed any error or irregularity in convicting the appellant/accused for the offence under Section 304 Part-II IPC. 8. Heard both sides. 9. It is contended on behalf of the appellant/accused that the accused is a married woman, aged about 40 years, having four daughters and that M.O.1-water vessel is commonly available in almost all the houses in a village. Since M.O.1 bears the name of some other person, it could be said that M.O.1 was not recovered from the appellant/accused. The fact that the deceased died on the third day of the incident indicates that timely medical aid was not extended to her, otherwise, perhaps she would have survived. It is also contended that in view of the aforesaid facts, it cannot be said that the alleged assault by the accused with M.O.1 may come under the purview of Section 304 Part –II IPC, as the weapon alleged to have been used as a water storing brass vessel and that the accused had acted in a fit of anger developed on the spur of the moment at the time of collecting water from a public tap. Further, the evidence of PW.7- medical witness is that the injuries shown in Ex.P.8 were not serious in nature. Therefore, it cannot be said that she had knowledge that her act was likely to cause the death of the deceased and the alleged act on the part of the appellant/accused may, perhaps, come under Section 323 IPC as the ingredients of causing voluntarily hurt under Section 321 IPC may be said to be present and are made out. 9. Having regard to the contentions raised on behalf of the appellant-accused and also having regard to the evidence placed on record, this Court is of the considered opinion that the trial Court ought to have convicted the accused for the offence under Section 321 IPC instead of Section 304 Part-II IPC. 10. Therefore, the conviction of the appellant-accused for the offence under Section 304 Part-II IPC is converted to that of offence under Section 321 IPC and for the same, the appellant-accused is sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,000/- 11. With the above modification, the Criminal Appeal is dismissed. _____________ B.N.RAO NALLA,J Date: 15.04.2011 Mrb/stp HON’BLE SRI JUSTICE B.N.RAO NALLA Criminal Appeal No.1034 of 2004 15-04-2011