HON’BLE SRI JUSTICE K.C. BHANU Crl.A.No.792 of 2004 DATED: 21.12.2009 Between:- Kodepaka Iylaiah .. Appellant And The State of A.P., rep. by its P.P., .. Respondent JUDGMENT:- This Criminal Appeal is directed against the judgment, dated 11.09.2003 delivered by I Additional Sessions Judge, Warangal, whereunder and whereby the sole accused, who is the appellant herein, was found guilty of the offence punishable under Section 304-II IPC and sentenced to undergo Rigorous Imprisonment for a period of five years and pay a fine of Rs.5,000/-, in default, to suffer Simple Imprisonment for six months. 2) The case of the prosecution in brief is that the deceased, namely Rajender, PW1, who is the younger brother of the deceased, PW2, PW3, who is the brother of the deceased by courtesy, PW4, who is brother-in-law of the deceased, the accused, his brother Bikshapathy and some others erected huts near the bricklin of PW6, namely G.Thirupathaiah, situated by the side of the road leading from Shyampet to Nareddipally and living therein by attending the work in the bricklin. The deceased and Bhikshapathy were attending the work of burning the bricks. After they attended the work together for 20 days on 29.12.2001, Bhikshapathy took some amount from PW6 for having attended that work by both of them without informing the same to the deceased. Subsequently, the deceased came to know about the same and questioned the accused, about his brother - Bhikshapathy taking the money from PW6 without his knowledge, and in that connection, an altercation took place between them, wherein the deceased beat the accused. On 30.12.2001, at about 7.00 P.M., while Bhikshapathy was questioning the deceased for beating his brother, the accused brought an iron pipe and beat the deceased on his head, as a result, the deceased fell down and became unconscious. PWs.1 to 4 and some persons, who were residing at bricklin, witnessed the incident. Immediately, after the incident, they took the deceased to PW6 under whom they were working, and informed him that he was beaten by the accused with an iron pipe. Immediately, PWs.1, 3, 4 and 6 took the deceased to PW5, a registered Medical Practitioner, who examined the deceased and advised them to take him to another hospital for better treatment. As there was no transport facility at that time, the deceased was shifted to MGM Hospital, Warangal on the next day at about 7.00 A.M. and admitted to the hospital as an in-patient, and during the course of treatment, the deceased died on the same day at about 7.00 P.M. PW1 lodged a complaint, based on which, the Station House Officer, Shyampet registered a case against the accused in Cr.No.150 of 2001. PW12, who is the Circle Inspector of Police, after completing the investigation laid charge sheet. 3) The charge leveled against the accused is that on 30.12.2001, at 7.30 P.M. at Pathipaka in Kothapet village, the accused committed murder of the deceased intentionally by beating him with an iron pipe on his head, which is an offence punishable under Section 302 IPC. The charge was read over and explained to the accused, who pleaded not guilty. 4) To substantiate the case of the prosecution, it examined PWs.1 to 12 and got marked Exs.P1 to P11 besides case property M.O.1. 5) After closure of the prosecution evidence, the accused was examined under Section 313 Cr.PC. wherein he denied the incriminating circumstances appearing in the prosecution evidence. No oral or documentary evidence was adduced on behalf of the accused. 6) The trial Court, after considering the evidence of PWs.1 to 4, found the accused guilty of the offence punishable under Section 304- II IPC, and convicted and sentenced him as stated supra. Challenging the same, the present appeal is preferred by the accused. 7) The point for determination is whether the prosecution proved the guilt of the accused for the offence punishable under Section 304-II IPC beyond all reasonable doubt and whether the judgment of the trial Court is correct, legal and proper? 8) The learned counsel for the appellant contended that except the interested testimony of PWs.1 to 4, there is no other evidence to show that the accused caused injuries to the deceased; that there was delay in lodging the complaint by PW1 and further delay on the part of the police in forwarding the complaint to the Court, as such, these circumstances would indicate that a false case is foisted against the accused. Hence, he prays to set aside the conviction and sentence imposed on the accused. 9) On the other hand, the learned Public Prosecutor appearing for the State contended that the presence of PWs.1 to 4 at the scene of offence is quite probable and natural and their presence cannot be doubted, and their evidence is consistent and the death of the deceased was due to head injury. He further contended that other circumstance with regard to seizure of weapon which would go to show that the accused is assailant of the deceased, as such, she prays that the Criminal Appeal may be dismissed. 10) PW12 is the Investigation Officer, who conducted inquest over the dead body of the deceased on 31.12.2001 under Ex.P3 in the presence of panch witnesses and others. The inquest mediators opined that the deceased died as a result of head injury. 11) PW10 is the Doctor, who conducted autopsy over the dead body of the deceased on 01.01.2002 and found the following injuries: i) On reflection scalp contusion measuring 16 x 7 cms present over left temporo-parietal region. ii) Depressed comminuted fracture measuring 4x3 cms present over the left parietal bone extending into the base of skull involving middle cervical fossal. There is extra dural hemorrhage present over the left side temporo-parietal region. Subdural and sub-archonoid haemorrhage present over the left hemisphere red in colour. Abrasion measuring 2 cms x 1 cm present over the lateral aspect of left forearm, red in colour. The Doctor opined that the deceased died as a result of head injury and issued Ex.P8 – Post-Mortem Certificate. He also stated that the head injury can be possible by beating with an object like MO1. The evidence of PW10 and the recitals in Ex.P8 remained unchallenged. 12) PWs.1 to 4 are the eye-witnesses to the incident. PWs.1 and 4 are brother and brother-in-law respectively of the deceased. The evidence of PWs.1 to 4 shows that PWs.1 to 4, the deceased and the accused went to Shyampet to work in bricklin which is located by the side of the road leading to Nareddipally. The deceased and others were engaged in the work of burning bricks. Some days prior to the incident, one Bhikshapathi, the brother of the accused, collected some amount from the contractor Thirupathaiah, without the knowledge of the deceased and PWs.1 to 4. Then, the deceased questioned the accused as to why his brother took the amount from the contractor without his knowledge, and a verbal altercation took place, and the contractor, Tirupathaiah came and pacified the matter and advised both the accused and the deceased not to quarrel. On the next day, the accused brought his brother and his wife to the locality, and when his brother was asking the deceased why he beat the accused, the accused brought an iron pipe and beat the deceased on his head, as a result, he fell down, became unconscious and the blood oozed from his nostrils. Immediately, he was shifted to PW5 - a local Registered Medical Practitioner, who gave First-Aid and advised PW1 and others to shift the deceased to another hospital for better treatment. Thereafter, he was shifted to MGM Hospital, Warangal and while undergoing treatment, the deceased succumbed to injuries. 13) The facts that PWs.1 to 4, the accused and the deceased are working in the bricklin of Tirupathaiah as coolies and that they were engaged in firing the bricks, are not disputed. In order to prove the presence of PWs.1 to 4 at the time of occurrence of offence, the following two important considerations are necessary while evaluating the evidence of eye-witnesses. (i) Whether in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such a situation as would make it possible for them to witness the facts deposed to by them? (ii) Whether there is inherently improbable or unreliable in their evidence? 14) The presence of PWs.1 to 4 is not seriously disputed. Even otherwise, their presence is established beyond reasonable doubt at the time of incident as they were all engaged by the brother of the accused for firing the bricks. Therefore, they could be in a position to see the alleged assault made on the deceased by the accused. 15) One day prior to the incident, there took place an altercation between Bhikshapathi and the deceased at the scene of offence, with regard to which, the accused and his brother, Bhikshapathi, went and questioned the deceased as to why he beat the accused. While the deceased was giving reply, the accused suddenly brought an iron pipe and beat on the head of the deceased. Their evidence is consistent and nothing has been elicited to discredit their testimony and there no other reason for them to speak false. Similarly, they have no animosity or grouse against the accused so as to implicate him falsely leaving the real assailant. 16) Further, PW1 lodged the report to PW11, who registered a case on the next day morning at about 7.00 A.M. No doubt, there was a delay of 12:00 hours in lodging the report. But the immediate conduct of PW1 and others was to take the injured to the hospital so as to save him. For that reason, in the first instance, the deceased was stated to have been taken to a nearby Registered Medical Practitioner, PW5, who gave First-Aid treatment, and on his advice, the deceased was taken to MGM hospital, Warangal. Therefore, in the given situation, it could not have been possible for PW1 to rush to the police station to lodge the complaint leaving the injured in the hospital. Therefore, the delay occurred in lodging the report by PW1 cannot be shown to be unreasonable delay and there is no reason for PW1 to foist a false case against the accused. A perusal of the evidence of PW1 would clearly indicate that it is the accused, who beat the deceased with iron pipe on his head, as a result, the deceased lost his consciousness. The contents of earliest report – Ex.P1 are completely in corroboration with the evidence of PW1. 17) Admittedly, there is a delay of two to three days in sending the FIR by the police to the Court and the same was unexplained. No doubt, according to Section 157 Cr.P.C., F.I.R. should be sent forthwith to a Magistrate empowered to take cognizance of such offence upon a police report. But some irregularities committed by the Investigating Officer in not sending the report within reasonable time to the Court cannot be taken advantage by the accused especially when the evidence of the prosecution witnesses is cogent, reliable and trustworthy. In the instant case, the evidence of PWs.1 to 4 is cogent, reliable and trustworthy and there is no other reason for them to speak false against the accused. Therefore, the finding of the trial Court that the accused is the assailant of the deceased needs no interference. 18) From the evidence on record, it can be inferred that it is a culpable homicide but not murder as it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. 19) As is evident from the judgment of the trial Court that the accused was a young man about 22 years by the date of incident, and he is the sole bread winner of his family, and the incident took place about a decade ago, and having regard to the submission made by the learned counsel for the appellant-accused, this Court has to take a lenient view with regard to the sentence imposed on the accused. 20) Hence, the Criminal Appeal is dismissed confirming the conviction recorded on the accused by the learned I Additional Sessions Judge, Warangal, by judgment dated 11.09.2003 delivered in S.C. No.145 of 2002 of the offence punishable under Section 304-II IPC, however, the sentence of Rigorous Imprisonment for a period of five years imposed on the accused, is reduced to that of three years. The sentence of fine amount as imposed by the trail Court shall remain unchanged. ​______________ K.C. BHANU, J. 21st December, 2009 bcj