HONOURABLE SRI JUSTICE A. GOPAL REDDY AND HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No.69 of 2008 Between: Thunikapati Venkat Narayana. …. Appellant and State of A.P. rep. by Public Prosecutor. …. Respondent This Court made the following: HONOURABLE SRI JUSTICE A. GOPAL REDDY AND HONOURABLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.69 of 2008 JUDGMENT: - (per Hon’ble Sri Justice A.Gopal Reddy) The appellant/sole accused, who was tried for an oﬀence under Section 302 IPC for causing the death of Kolluju Kumara Swamy (hereinafter referred to as, “the deceased”) by stabbing him with a knife at Parsibandham of Khammam Town in Sessions Case No.259 of 2007 on the ﬁle of III Additional Sessions Judge, (Fast Track Court – II), Khammam and who was convicted for the said oﬀence and sentenced to undergo imprisonment for life and also to pay a ﬁne of Rs.100/-, in default to undergo simple imprisonment for one month, by judgment dated 08.09.2007, ﬁled the present appeal challenging the conviction and sentence recorded against him. 2. The prosecution story as narrated during the course of trial is briefly stated as under:- The accused aged 65 years is a carpenter and is a resident of Parsibandham of Khammam town. The elder sister of the deceased is the wife of the accused. There are some disputes between the accused and his wife due to which he always used to beat the wife. The deceased, who is the brother of the wife of the accused, approached the accused and advised not to harass his sister by quarrelling with her in drunken condition. Upon which the accused picked up a quarrel with the deceased and threatened him that if he interferes in the matter he will kill him and taking his support his wife is quarrelling with the accused. One week prior to the incident accused picked up a quarrel with the wife and beat her and threatened that he will kill her. The same was witnessed by P.Ws.6 and 7. On 04.07.2005 at 06:00 PM while the wife of the accused was talking with her brother-the deceased at the house of P.W.2, the accused went there and on seeing his wife talking with her brother got wild and asked her to come to house. Thereupon the deceased asked the accused to go to house, he will send his sister later. On that the accused got wild and stated that the deceased is responsible for the dispute between him and his wife picked up a knife from his waist and stabbed below left arm pit and caused injury to vital organ heart and killed him. Later the deceased was shifted to Government Hospital, Khammam where he was declared dead. Thereby, the wife of the deceased lodged a complaint under Ex.P1 before the Khammam I Town police station, basing on which a case in crime No.98 of 2005 was registered by P.W.14 and P.W.15 took up further investigation. During the course of investigation, P.W.15 visited the hospital; scene of oﬀence; examined the witnesses; conducted inquest over the dead body of the deceased in the presence of mediators; seized the material objects; arrested the accused; sent the material objects for examination to RFSL. On receipt of all the relevant reports, L.W.21 – B.Srinivasa Reddy (not examined) ﬁled charge sheet. 3. On committal to the court of sessions, the III Additional Sessions Judge, (Fast Track Court-II), Khammam framed a charge against the accused for the oﬀence under Section 302 IPC and explained the same to the accused in Telugu and asked him whether he pleads guilty or claims to be tried. Then the accused answered that when the deceased was beating him by making him fell down on the ground, he picked up a knife from the nearby place and stabbed the deceased and committed the offence. He pleaded for guilty. 4. To prove the guilt of the accused, the prosecution got examined P.Ws.1 to 15 and marked Exs.P1 to P21. On closer of the evidence, the accused was examined under Section 313 Cr.P.C. on the incriminating evidence adduced by the prosecution, for which the accused denied the same and not opted to examine any witness on his behalf. 5. The learned Sessions Judge accepting the evidence of P.Ws.2 to 5 was of the view that the prosecution is able to establish that the accused harassed his wife Paripoornamma by beating her very often; that the evidence of P.Ws.2 and 3 shows that they heard the cries of Paripoornamma and came out from the house and found the deceased with injuries and the accused was going away, clearly implies that the accused has assaulted the deceased with knife; that the prosecution failed to establish the seizure of knife M.O.1, but the statement of the accused at the time of framing of the charge that he stabbed the deceased with knife also amply proves the case of the prosecution that he stabbed the deceased, but failed to establish that the same was done in private defence. Holding so, the learned Sessions Judge convicted the accused as aforementioned. 6. Learned counsel for the appellant contends that there are no eyewitnesses to the incident. The learned Sessions Judge ought not to have relied upon the confession of the accused made at the time of framing of the charge. When the accused was examined under Section 313 Cr.P.C., the accused denied all the incriminating evidence adduced by the prosecution. All the prosecution witnesses turned hostile and the evidence of P.W.2 also does not indicate that she is not an eye witness to the incident and that by the time she came out, the accused went away from the scene of oﬀence leaving the knife at the scene of oﬀence. Once the learned Sessions Judge disbelieved the seizure of knife M.O.1 and the accused presence has not been spoken by any of the witnesses, he cannot be convicted for the offence under Section 302 IPC. 7. Learned Additional Public Prosecutor sustained the conviction and sentence passed by the learned Sessions judge. 8. The point for consideration in this appeal is : Whether the prosecution has established the guilt of the accused beyond all reasonable doubt? P O I N T :- 9. The entire case of the prosecution rests upon the evidence of P.Ws.2 to 4, who are the material witnesses to the case of the prosecution. P.W.1, who is t h e de facto complainant and wife of the deceased, deposed in her evidence that at the time of incident, she was in the bazaar at Khammam. On coming to her house, she received information that her husband was killed at the house of P.W.2 by the accused and that the dead body was taken to the Government Hospital, Khammam. She went to the hospital, but she did not see the dead body of her husband as it was kept in the mortuary room. She did not support the case of the prosecution and she was declared hostile. 10. P.W.2, sister of the deceased, deposed that Paripoornamma came to his house on the date of incident and they were talking together in his house. In the meanwhile the accused came to his house. There was a quarrel between the deceased and the accused at his house. The accused quarreled with his brother stating that his wife was not caring him on account of the deceased. The incident took place in the open site in front of her house. By the time she came out of the house, her brother fell down on the ground and that she found bleeding injury on the left side of his chest. She further deposed that the accused went away from the scene of oﬀence, leaving the knife at the scene of offence. She further deposed that her brother was not in a position to talk at the spot. They removed her brother to the Government Hospital, Khammam. P.W.3, daughter of P.W.2, also deposed that the accused and his wife used to quarrel with each other. The deceased used to warn the accused whenever the accused beats his wife. The accused and the deceased used to abuse each other now and then in the matters of the accused and his wife. The deceased died at their house. The deceased and the wife of the accused came to their house and were talking with each other on the date of incident. In the meanwhile the accused came to their house. He was attending for house hold works at that time. The wife of the accused informed the deceased that her husband was harassing. In the meanwhile the accused came to their house. Then the deceased questioned the accused for harassing his sister by beating her. Then the accused stated that he will beat his wife and he has no concern to interfere. Immediately thereafter she heard the cries of the sister of the deceased, stating that her husband stabbed her brother with a knife and was going away. Thereby she came out of the house and found bleeding. Then immediately they shifted the deceased to the Government Hospital, Khammam. P.Ws.4, 6 to 9 turned hostile and did not support the case of the prosecution. 11. P.W.13, the Doctor, deposed that on receipt of requisition from the C.I. of Police, Khammam town he conducted post mortem examination over the dead body of the deceased and issued Ex.P19 post mortem report opining that the cause of death of the deceased was due to shock due to stab injury to the heart. 12. P.W.14, the Head Constable, deposed about presentation of Ex.P2 report by P.W.1 and registration of F.I.R. P.W.15, the Circle Inspector of Police, who took up investigation, deposed about examination of the witnesses; conducting inquest over the dead body of the deceased; visiting the scene of oﬀence; seizure of material objects; observation of the scene of oﬀence; arrest of the accused. He further deposed that L.W.21 B.Srinivasa Reddy filed charge sheet. 13. From the above evidence, it is clear that there are disputes between the accused and his wife and the accused used to beat his wife. In that connection, when the deceased interfered, dispute arose between the accused and the deceased. Further, when the accused was examined under Section 228 Cr.P.C., he pleaded guilty and stated that when the deceased thrown him on the ground and beat him, he took a knife nearby the place and stabbed him, which clearly shows that there was no intention on the part of the accused to kill the deceased. But due to sudden provocation, he took the knife nearby the scene and killed the deceased. The evidence of P.W.13, the doctor, also discloses that the cause of death is shock due to stab injury and there is only one stab injury. 14. In view of the above discussion, we are of the view that the prosecution established that the accused stabbed the deceased with a knife and due to the said injury the deceased died. But since there was a sudden provocation as stated by the accused when he was examined under Section 229 Cr.P.C. and as there was no intention on the part of the accused to cause the death, we are of the opinion that the accused committed an oﬀence of culpable homicide not amounting to murder and he is liable to be punished for the oﬀence under Section 304 Part II IPC. Keeping in view of the age of the accused at the time of commission of the oﬀence as 65 years and now he is aged 71 years, we convict him for the offence under Section 304 part II IPC. 15. The conviction of the appellant/accused for the oﬀence punishable under Section 302 IPC and sentence of imprisonment for life and to pay a ﬁne of Rs.100/- in default to suﬀer simple imprisonment for a period of two months, recorded in Sessions case No.259 of 2007, dated 27.11.2007 by III Additional Sessions Judge, (Fast Track Court-II), Khammam, is set aside. Instead the appellant/accused is found guilty for the oﬀence punishable under Section 304 Part II IPC and is convicted for the same and sentenced to period already undergone. The appellant shall be released forth, if not required in any other case. The Criminal Appeal is partly allowed to the extent indicated above. ____________________ A. GOPAL REDDY, J _____________________ R. KANTHA RAO, J 14th November, 2011. LMV HONOURABLE SRI JUSTICE A. GOPAL REDDY AND HONOURABLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.69 of 2008 (Judgment of the Bench delivered by Sri AGR, J) 14-11-2011 LMV