THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No.495 of 2007 Date of Judgment: 05-10-2010 Between: Eeka Bapiraju ..Appellant And State rep. by its P.P., High Court of A.P., Hyderabad and another ..Respondents The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No.495 of 2007 Oral Judgment: (Per the Hon’ble Sri Justice Raja Elango) 1. The sole accused in S.C.No.449 of 2006 on the file of VI Additional Sessions Judge (Fast Track Court), East Godavari at Rajahmundry filed the present appeal under Section 374 (2) of the Code of Criminal Procedure (for short “Cr.P.C”) challenging his conviction for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced him to undergo imprisonment for life and to pay a fine of Rs.500/-, in default to suffer rigorous imprisonment for three months. 2. The prosecution version, in a nutshell, is as follows: P.W.1 is the wife of Madakam Potha Raju (hereinafter called as “the deceased”). The deceased, accused and the material witnesses belong to Koyadora caste (Schedule Tribe), resident of Kannaram village, Rampachodavaram Mandal, East Godavari District and they are eking out their livelihood by collecting firewood from the Kannaram forest and sell them in the neighbouring villages on cycles. On 09-12- 2005, while the deceased, his son—Venkanna Dora, accused and some others are going to Gokavaram village on their respective cycles, the Forest Officials caught hold them near forest Thana and seized their cycles and imposed a fine of Rs.200/- each. Later, the deceased and his son paid the fine amount and got released their cycles, but not of the accused. Thereafter, the accused also paid the fine amount and brought back his cycle. While so, on the fateful night of 09-12-2005, the deceased, P.W.1, accused and some others went to the house of P.W.2 to watch T.V. The accused and the deceased sat side by side. The accused raised a dispute with the deceased regarding not release of his cycle. Then, the deceased pushed the accused consequently the accused fell down. For that, the accused grew wild, picked up Pota Kathi (knife) —M.O.1, which was lying there, and hacked on the head of the deceased causing bleeding injury and escaped from the scene of offence along with M.O.1. Immediately, P.Ws.1 to 3 took the deceased to Primary Health Centre, Narsapuram Village, got first aid there and later shifted to Community Health Centre, Rampachodavaram for treatment. On receipt of M.L.C. intimation—Ex.P19, P.W.8, Head Constable, Rampachodavaram rushed to the hospital; recorded the statement of P.W.1 covered under Ex.P17; basing on the said statement he registered a case in Cr.No.105/2005 under Section 324 IPC and issued Express FIR—Ex.P18 to all the concerned. Thereafter, the deceased was shifted to Government General Hospital, Kakinada where the doctors declared him as dead. On receipt of death intimation—Ex.P20, he altered the Section law from 324 to 302 IPC and issued altered FIR—Ex.P21. P.W.9, Inspector of Police, Rampachodavaram took up further investigation; visited the scene of offence, prepared scene of observation report—Ex.P13; prepared rough sketch of the scene of offence—Ex.P22; got the scene of offence photographed covered by Exs.P1 to P12; proceeded to Government General Hospital, Kakinada; examined P.Ws.1 to 4, Madakam Venkanna Dora—L.W.2, Parada Srinu Dora—L.W.5, Parada Ramanna Dora—L.W.6, Madakam Suranna Dora—L.W.7, Kosu Venkanna Dora—L.W.8, Kunjam Nani Babu—L.W.9 and Sarapu Arjunudu—L.W.10 and recorded their statements. He conducted inquest over the dead body of the deceased covered under Ex.P14 in the presence of Panchayatdars, who unanimously opined that the deceased died due to head injury. Thereafter, the body of the deceased was sent for postmortem examination. P.W.7, the doctor who conducted autopsy over the dead body of the deceased found the following injuries: External Injuries: 1. A surgically intervened sutured wound of 8cms. Size approximated with 7stiches present over mid front and top of the head (mid front to parietal occipital regions). It is 13 cms above the right ear and 15 cms above the mid aspect of right fore head region in between the both eyebrows on opening the sutures it is a bone deep split lacerated wound 8 x 0.5 x. 2 cms. In size and the wound area is stained with red coloured dried blood. 2. Reddish abrasion of5 x 2 cms. Size present over left temple. 3. Reddish abrasion of 1 x 0.5 cms. Size present over back of left elbow. 4. Reddish abrasions of 0.5 x 0.5 cms. Size present over front of left knee. Internal Injuries: 1. On dissection of external injuryNo.1, there is a laceration of 7 x 0.5 x 1 cms. Size surrounded by reddish contusion of 16 x 11 cms. Size present over mid top of scalp (front parietal occipital region). 2. Underneath the internal injjryNo.1 there is a fissured fracture of 8cms. Size obliquely present over mid parieto occipital vault of the skull. 3. Below the internal injury No.2 there is extramural hemorrhage of 10 x 9 x 1 cms. Size weighing 225 gms. Present over the mid aspect of parieto occipital areas of membranes of the brain. The doctor issued Ex.P16—postmortem certificate opining that the deceased would appear to have died of injury to the brain due to fracture of skull. On 15-12-2005, P.W.9 arrested the accused in the presence of P.W.6 and one Mr.Audinarayana—L.W.16 and in pursuance of confession made by the accused, M.O.1—knife was seized. Meanwhile, P.W.1 handed over M.O.4—blood stained towel and M.O.5 —blood stained shirt and the same were seized under a cover of mediators report. He sent all the seized material objects to Regional Forensic Science Laboratory, Vijayawada for chemical examination. After receipt of relevant reports and documents the Inspector of Police, Rampachodavaram (L.W.20) laid the charge sheet before the III Additional Judicial First Class Magistrate, Rajahmundry. 3. On committal of the case, the learned Sessions Judge framed a charge under Section 302 IPC against the accused, the same was read over and explained to him in Telugu and he pleaded not guilty and claimed to be tried. 4. In order to substantiate its case, the prosecution examined P.Ws.1 to 9 and got marked Exs.P1 to P23 besides case properties— M.Os.1 and 5. Ex.D1, relevant portion of 161 Cr.P.C. statement of P.W.3, was marked on behalf of defence. 5. The learned Sessions Judge basing on the evidence on record particularly, the evidence of P.Ws.1 to 3—eye witnesses and the extra-judicial confession made by the accused to P.W.6 found the accused guilty and accordingly convicted and sentenced him as stated above. Challenging the same, the present appeal is filed. 6. The entire case of the prosecution rests upon the evidence of P.Ws.1 to3, who are said to be eyewitnesses. 7. Learned counsel for the appellant not disputing the facts of the case and the occurrence submitted that the entire prosecution evidence do not attract the ingredients “Culpable Homicide not amounting to Murder” to convict the accused under Section 302 IPC. 8. Per contra, the learned Additional Public Prosecutor while supporting the order under appeal submitted that the evidence on record is sufficient to convict the accused and the learned Sessions Judge after carefully scrutinizing the evidence adduced by the parties and extra judicial confession made by the accused before P.W.6 rightly convicted the accused which needs no interference. 9. Now the point that arises for consideration is: “Whether the said occurrence of death caused to the deceased will attract Section 302 IPC or fell under any of the exceptions of Section 300 IPC?” 10. This Court perused the entire evidence and heard the arguments. 11. P.W.1, who is the wife of the deceased, deposed that on the date of incident due to wordy altercation, her husband (deceased) pushed the accused, consequently the accused fell down. For that the accused grew wild and picked up a Pota kathi (knife), which was found near the fence, and hacked on the head of the deceased and fled away from the place of occurrence. Immediately they took the deceased to Government Hospital, Narsapur and later shifted to Rampachodavaram Hospital where the police examined her and recorded her statement. Thereafter, the deceased was shifted to Government General Hospital, Kakinada, where the doctors declared him as dead. She denied the suggestion that the deceased on his own fell down and received the injuries. 12. P.W.2 supported the evidence of P.W.1. She stated that the deceased along with her wife—P.W.1 and his son (L.W.2) came to their house to watch T.V. She categorically submitted that all of a sudden quarrel took place between the deceased and accused with regard to release of cycle seized by the forest officials. In which deceased pushed the accused then the accused fell down and picked up Potakathi, which was found near the fence, and hacked on head of the deceased and ran away from the place of occurrence. 13. P.W.3, who is the resident of Kannaram village, also supported the case of the prosecution. He deposed that suddenly the accused raised a dispute with the deceased. In which the deceased pushed the accused and the accused fell down. Thereafter, he heard the cries of the deceased and found the accused taking out the knife from the head of the deceased. 14. Admittedly, prior to the occurrence, there is no evidence to show that the accused had any intention to cause the death of the deceased. The appellant/accused, who was also witnessing the T.V. along with others, picked up a quarrel with the deceased. Actually, the deceased pushed the accused, by which the appellant/accused fell down and picked up Pota kathi (knife), which is available very near to the place of occurrence. It is not the case of the prosecution that the appellant/accused is having any weapon in his hands while entering into the house of the deceased. Further, it is also evident from the evidence adduced by the prosecution that the accused having possession of the weapon caused only simply injury and also tried to escape from the place of occurrence. If the appellant is intended to cause death of the deceased, he would have caused number of injuries. It is also evident the entire quarrel is due to fall and there is no motive for the accused to do away the deceased. It is only certain quarrel due to wordily altercation. The weapon used by the appellant/accused even though deadly weapon, as per the evidence of the prosecution, that the same is available in every house. The evidence clearly discloses that the same was taken by the accused near the place of occurrence. 15. Exception-4 to Section 300 IPC reads thus: “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 offenders having taken undue advantage or acted in a cruel or unusual manner. Explanation-It is immaterial in such cases which party offers the provocation or commits the first assault. “ 16. The above facts and the evidence adduced by the prosecution to substantiate the case clearly attract the above said exception. Now, it has to be seen, whether that exception is punishable under Section 304 Part I or 304 Part II. 17. Section 304 Part II reads thus: “304. Punishment for culpable homicide not amounting to murder— xxxxxxx or with imprisonment of either description for a term which may extent to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as likely to cause death.” 18. By a reading of the above Exception-4 to Section 300 and Section 304 Part II IPC and from the above said discussion, it is evident that the appellant/accused had no intention to kill the deceased and also had no knowledge that the said injury will cause the death. Even assuming for a moment the accused has knowledge that the said injury will cause the death, same is not with an intention to cause death. Therefore, the case on hand clearly falls under Section 304 Part II IPC. 19. In view of the same, the conviction and sentence recorded against the appellant/accused for the offence punishable under Section 302 IPC by the VI Additional Sessions Judge, (FTC) East Godavari, Rajahmundry in S.C.No.449 of 2006 dated 01-02-2007 are set aside. However, the appellant/accused is found guilty for the offence punishable under Section 304 Part II IPC and he is sentenced to suffer rigorous imprisonment for a period of five years. The period of remand already undergone during the trial and also as a convict shall be given set off under Section 428 Cr.P.C. 20. The Criminal Appeal is partly allowed to the extent indicated above. _________________ A.GOPAL REDDY, J. _______________ RAJA ELANGO,J. 05-10-2010 Murthy