THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1360 of 2007 JUDGEMENT: (Per Hon’ble Sri Justice Raja Elango) This appeal is filed under Section 374 (2) of the Code of Criminal Procedure, 1973, against the Judgment, dated 03.09.2007, passed in S.C.No.206 of 2007, on the file of the Court of the III Additional District and Sessions Judge (Fast Track Court), Nellore, whereunder and whereby the appellant/sole accused was found guilty of the offence under Section 302 I.P.C., convicted therefor and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.50/-, in default, to suffer simple imprisonment for two months. 2. The brief facts that are necessary for the disposal of this case are as follows: Smt.Ballipamula Seenamma (hereinafter referred to as ‘the deceased’) was the wife of the accused. P.W.1 is the mother and P.W.2 is the sister of the deceased. The deceased married the accused about 10 years prior to the incident. Later, as disputes arose between them, the accused deserted the deceased and left the house. About one week prior to the death of the deceased, the accused returned and started living with the deceased in the house of P.W.1. On 09.04.2007, P.W.1 went to the house of P.W.2 at the request of the accused and the deceased. During that night, a quarrel took place between the accused and the deceased and in that quarrel the accused beat the deceased indiscriminately with a wooden plank. On the next day around 5.00 a.m., P.Ws.1 and 2 returned to the house and found the deceased with injuries. The deceased narrated the entire incident to them. Then they shifted the deceased to Jayabharath Hospital, Nellore, where the doctor examined the deceased and declared her dead. At about 11.00 a.m., P.W.1 gave a report to the police. Based on the said report, P.W.7 registered a case in Crime No.76 of 2007 for the offence punishable under Section 302 I.P.C. P.W.10-Inspector of Police, Nellore, took up investigation, visited the scene of offence, examined the witnesses, seized the material objects, held inquest over the dead body of the deceased and thereafter, sent the dead body for postmortem examination. After apprehension of the accused and receipt of relevant certificates, P.W.10 filed charge sheet. 3 . On committal, the learned Sessions Judge framed a charge against the accused for the offence under Section 302 I.P.C. When the said charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 10 and got marked Exs.P.1 to P.14, besides case properties M.Os.1 to 3. No oral or documentary evidence was adduced on behalf of the accused. 5. P.W.1, who is the mother of the deceased and who set the law into motion by way of lodging Ex.P.1-report, deposed with regard to the marriage between the deceased and the accused. She also deposed that on 10.04.2007 at about 5.00 a.m., when herself and her two daughters returned home, they found the deceased with injuries. She further deposed that the deceased informed her that the accused beat her with a wooden plank, when she questioned about his marriage with another lady. 6. P.W.2, who is the sister of the deceased, deposed on the same lines to that of P.W.1, since she also accompanied P.W.1. 7. P.W.3, who is a resident of the same village, deposed that on hearing the groaning of the deceased, she entered the house of the deceased and found her with injuries. She also deposed that she found the deceased lying on a cot and the accused was also there in the house. She also found a wooden plank in the place of occurrence. She further deposed that the deceased narrated the manner in which she sustained injuries in the hands of the accused. 8. P.W.4, who is also a resident of the same village and who is working as coolie, deposed that on hearing groaning from the house of the deceased, she entered into the house and found the deceased groaning on a cot. She further deposed that the deceased informed her and P.W.3 the manner in which she sustained injuries. 9. P.W.5 is a witness to the observation report. 10. P.W.6 is the doctor, who conducted autopsy over the dead body of the deceased. She found the following injuries on the dead body of the deceased. “1. 3 x ½ x ½ cms skin depth incised wound over temporal region just behind left ear. Edges are clean-cut averted. 2. 1 x 1 cm full skin depth of External Pennod of left ear cut in transverse direction-Edges are irregular. 3. 3 x 2 cms oval shaped haemotoma behind right ear Bluish in colour swelling over right perotid region. 4. 2 cms contusion over left lower lid. 5. ½ x ½ cms two abrasions over left fore arm. 6. 1 cm x ½ cm abrasion over chin. 1 x ½ cms contusion over cheek.” She issued Ex.P5-Wound Certificate opining that the cause of death of the deceased was shock and haemorrhage due to multiple injuries. 11. P.W.7 is the A.S.I of V Town Police Station, Nellore. He registered a case in Crime No.76 of 2007 on the basis of the report given by P.W.1. 12. P.W.8 is the Constable who accompanied the dead body of the deceased and handed over the dead body to the relatives of the deceased. 13. P.W.9, who is running a photo studio, speaks about the photographs taken by him. 14. P.W.10 is the Investigation Officer. He deposed that on receipt of F.I.R, he visited the scene of offence, prepared the rough sketch of the scene of offence, conducted inquest over the dead body of the deceased, gave requisition for conducting postmortem examination and after obtaining postmortem certificate laid charge sheet before the Court. 15. On evaluating the said evidence, the learned Sessions Judge found the accused guilty of the offence under Section 302 I.P.C and accordingly convicted and sentenced him as stated supra. Challenging the conviction and sentence, the accused filed the present appeal. 16. Heard the learned counsel for the appellant/accused as well as the learned Public Prosecutor and perused the records. 17. Even though P.Ws.1 to 4 are not eyewitnesses to the occurrence, their evidence would disclose that when they reached the scene of occurrence, they found the deceased with injuries and that the deceased gave statement to them, which is in the nature of dying declaration. The said statement clearly indicates the guilt of the accused and the manner in which the accused caused injuries to the deceased. Further, the said evidence clearly establishes the presence of the accused at the place of occurrence. The learned Sessions Judge mainly relied upon the said evidence while convicting the accused. 18. A perusal of the evidence and also Ex.P.1 complaint lodged by P.W.1 disclose the entire case of the prosecution is substantiated before the trial Court. But the said evidence adduced would not attract the ingredients of an offence under Section 302 I.P.C to convict the accused. 19. It is the admitted case of P.Ws.1 to 4 that while giving statement the deceased categorically informed that due to the quarrel between her and the accused, the accused caused injuries with a wooden plank. The said weapon is not a deadly weapon and it is normally available in every house. Further, with regard to the first injury sustained by the deceased i.e., skin depth incised wound over temporal region just behind left ear and edges are clean-cut averted, it is admitted by the doctor, who conducted postmortem examination over the dead body of the deceased, in the cross examination that incised wounds are not possible by weapon like M.O.1. When a suggestion was made to him, the doctor further admitted that in case the victim fell on sharp edged object the incised wound found on her body can be possible. The said evidence clearly indicates that the said injury sustained by the deceased is not a self-injury and it is only because of the accused. 20. Further, the evidence of P.Ws.1 to 4 also indicates that when they visited the scene of occurrence, the accused was present there. If really the accused intended to cause the death of the deceased there is no need for him to stay at the house even after causing injuries and nothing prevented him from causing the death during that time. Hence, it can be safely held that the accused is not having any intention to commit the murder of the deceased. But at the same time, the accused is aware that the injuries caused by him would result the death. Therefore, we are of the view that the accused can be convicted for the offence under Section 304 Part II I.P.C instead of the offence under Section 302 I.P.C. 21. Accordingly, the conviction of the accused for the offence under Section 302 IPC and the sentence of imprisonment for life are set aside. However, he is convicted for the offence under Section 304 Part II IPC and sentenced to undergo rigorous imprisonment for ten years. The fine amount imposed on him remains unaltered. 22. With the above modification, the appeal is disposed of. _________________ A.GOPAL REDDY, J _________________ RAJA ELANGO, J Date 14.06.2011 va