HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.489 OF 2007 Dated:04-10-2010 BETWEEN: State of A.P., rep. by The Public Prosecutor, High Court of A.P., Hyderabad. …Appellant AND Bandaru Ramaswamy @ Ramu, S/o.Nukayya, R/o.Dr.No.82-12-8, Burma Colony, Rajahmundry, East Godavari District. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.489 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) The State preferred this appeal against the judgment and order of the Sessions Judge, East Godavari at Rajahmundry, dated 27.2.2004 in S.C.No.283 of 2002 whereby and whereunder the sole accused-respondent herein was acquitted of the charge under Section 302 IPC but he was convicted for the offence under Section 304-II IPC and was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.200/-, in default, to suffer simple imprisonment for two months. 2. The case of the prosecution is as follows: P.Ws.1,4 and Boddu Rambabu (hereinafter referred to as ‘the deceased’) are the sons of P.Ws.2 and 3. The material prosecution witnesses and the accused are residents of Burma Colony, Rajahmundry. The accused is the neighbour of P.W.2, and that the accused and P.W.2 were working in a spinning mill for more than 15 years. The sister of the deceased was married and there was dispute with her husband. The accused volunteered to settle the dispute but P.W.2 declined the offer stating that he had engaged an advocate. On that, the accused developed grudge towards P.W.2. While so, on 21.4.2002 at about 10.00 a.m., while P.W.2 was talking to P.W.8, the accused came there in a drunken condition and slapped P.W.2. On that, P.W.8 pacified the matter and asked the accused to go away from that place. P.W.1 returned home in the night at about 10.30 p.m. and P.W.2 informed him about the said incident and he advised P.W.1 that the matter can be sorted out in the morning. Thereafter the deceased returned home in the midnight i.e. on 22.4.2002 at 12.30 a.m. and he was also informed of the incident occurred in the morning at 10.00 a.m. On that, the deceased went to the house of the accused. On being questioned, the accused abused the deceased in vulgar language, picked up a knife and stabbed on the left side thigh of the deceased. P.Ws.1 to 4 are eyewitnesses to the said incident. Immediately, the deceased was taken to the Government Hospital, Rajahmundry for treatment where, the duty doctor, after examining the deceased, declared brought dead. Later, P.W.1 gave a report Ex.P.1 to P.W.11-Head Constable on 22.4.2002 at 2.40 a.m., basing on which, P.W.11 registered a case in Crime No.190 of 2002 for the offence under Section 302 IPC. P.W.12-Inspector of Police, Rajahmundry took up the investigation on 24.2.2002; proceeded to the Government Hospital, Rajahmundry by 3.30 a.m.; examined P.W.1 and recorded his statement; conducted inquest over the dead body of the deceased; prepared observation report under Ex.P.9; scene of offence under Ex.P.14 in the presence of P.W.9; and examined P.Ws.1 to 4 during the inquest. Ex.P.10 is the inquest report. He referred the dead body for post-mortem examination. P.W.10-Civil Assistant Surgeon, Government Hospital, Rajahmundry, on receipt of requisition, conducted post-mortem over the dead body of the deceased and found one external injury. He opined that the death was due to severe Hyupovolumic shock due to severe haemorrhage over the Femoral Artery (left) and issued Ex.P.13-post-mortem certificate. P.W.12 arrested the accused on 23.4.2002 at 5.00 a.m. at the RTC complex, Rajahmundry and recorded the confessional statement of the accused under Ex.P.11. In pursuance to the confession, the accused led the police and mediators to Burma colony behind the house of Pentaiah and produced a knife-M.O.1, and the same was seized under Ex.P.12-mediators report. On receipt of relevant reports and on completion of investigation, P.W.12 laid the charge sheet against the accused for the offence under Section 302 IPC. 3. The charge levelled against the accused is as under: “That you, on the 22nd day of April, 2002 at about 00-30 hours (i.e., 12.30 a.m.) at your house bearing door No.82-14-8, Burma Colony of Rajahmundry, did commit murder by intentionally or knowingly causing the death of BODDU RAMBABU by stabbing him with the sharp edged knife by targeting to the testicles and on the left thigh near groin when he (deceased) questioned you about the case of slapping his father (L.W.2: Boddu Sarabhayya) on 21.4.2002 at about 10.00 a.m., and that you thereby committed offence punishable under Section 302 of Indian Penal Code and within my cognizance.” 4. When the charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate the charge, the prosecution examined P.Ws.1 to 13 and got marked Exs.P.1 to P.19 besides the case properties-M.Os.1 to 5. 6. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same. When the accused was called upon to adduce evidence, he did not let in any evidence, but marked Exs.D.1 to D.5. 7. The Trial Court after considering the evidence brought on record found the accused not guilty for the offence under Section 302 IPC, but found him guilty for the offence under Section 304-II IPC and accordingly convicted and sentenced him as stated above. Challenging the acquittal of the accused for the offence under Section 302 IPC, the present appeal is filed by the State. 8. Against the findings recorded by the learned Sessions Judge, the learned Public Prosecutor raised the following grounds in support of his contention that the present case exclusively falls under Section 302 IPC but not under Section 304-II IPC: 1. The judgment of the lower Court is contrary to law, weight of evidence and probabilities of the case in so far it went against the prosecution. 2. The Court below ought to have seen that the nature of the weapon, injury caused, clearly establish the intention of the accused to cause the murder of the deceased. 3. The Court below ought to have seen that the medical evidence clearly establishes the intention of the accused. 4. The Court below ought to have seen that the accused attacked the deceased who was unarmed without any provocation and caused his death. However, the learned Public Prosecutor fairly conceded that the accused caused only single injury to the deceased that too not on vital part. 9. None appears on behalf of the accused-respondent herein. 10. We have perused the entire evidence and also the judgment of the lower Court. 11. A perusal of the judgment shows that the learned Sessions Judge convicted the accused for the offence under Section 304-II IPC on the following grounds: (1) the place of occurrence is near the house of the accused: (2) the injury caused by the accused is not on the vital part; and (3) the accused caused only one single injury. Further it is evident from the evidence brought on record that after causing the injury, the accused ran away from the place of occurrence. It is the evidence adduced by P.Ws.1 to 4 before the trial Court that after hearing hue and cry, they witnessed the deceased standing in front of the house of the accused, and due to some wordy altercation, the accused caused injury on the left thigh of the deceased and ran away from the place of occurrence. Even from the contents of Ex.P.1 complaint lodged by P.W.1 it is evident that there ensued a quarrel between the accused and the deceased immediately prior to the incident. The entire facts and circumstances and the evidence adduced by the prosecution squarely comes under the exception 4 of Section 300 IPC, which runs as under: “Exception 4:- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.” Such an act even though it is culpable homicide will not amount to murder as per the exception 4. The said exception is punishable under Section 304-II, which runs as follows: “304. Punishment for culpable homicide not amounting to murder:- xxxxxx; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 12. In the present case, considering the nature of injury, the place on which the injury is caused and the offence committed by the accused without any premeditated intention, the learned Sessions Judge rightly convicted the accused for the offence under Section 304 Part-II. The judgment of the lower Court does not suffer from any infirmities or perversity so as to interfere with the same. 13. In the result, the Criminal Appeal is dismissed. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J. OCTOBER 04, 2010 Tsr.