THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL No.944 OF 2005 Dated:03.12.2009 Between: Molanguri Narayana and others .. Appellants/Accused And The State of Andhra Pradesh, rep., by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad .. Respondent JUDGMENT: Accused Nos.1 to 4 in S.C.No.22 of 2004 on the file of the IV Additional District and Sessions Judge (Fast Tract Court), Siddipet filed this appeal against the conviction and sentence imposed on them under Section 304 Part II of the Indian Penal Code by the Judgment, dated 30.05.2005. The appellants were prosecuted by the Circle Inspector of Police, Dubbak, in Crime No.44 of 2002 of Dubbak Police Station, alleging that the deceased - Molanguri Salaiah is the maternal uncle and guardian of Padma and he performed her marriage with the first accused, his brother, Venkataiah’s son. On 15.06.2002, Salaiah and Venkataiah went to Mysamma temple at Ambaripeta and performed a ceremony at the temple. They went from the temple to the house of Padma at Boppapur and Salaiah invited her to come to their house to attend the festival at their home on 16.06.2002. The first accused declined to send his wife along with Salaiah, but Padma went to the house of Salaiah without informing the first accused at about 8.00 p.m. When Salaiah, his wife Suseela, Padma and Salaiah’s brother – M.Muthulingam and his wife Sammakka were having dinner together, accused Nos.1 to 4 went there by about 10.30 p.m., and picked up a quarrel with Padma and dragged her out of the house. When they were beating Padma, Salaiah and other family members intervened and the neighbours also advised the accused to leave her. The four accused went away and again came back at about 11.30 p.m.; picked up a quarrel with Salaiah, beat him and kicked on his testicles, due to which, he died. Consequently, the accused were prosecuted for an offence punishable under Section 302 of the Indian Penal Code. On the accused entering appearance and after furnishing copies of the documents to them, the Magistrate committed the case to the Court of Session, when a charge under Section 302 read with Section 34 of the Indian Penal Code was framed against them, to which, they pleaded not guilty. PWs.1 to 7 were examined and Exs.P1 to P14 were marked during trial and the accused denied the allegations levelled against them, when they were examined under Section 313 Cr.P.C. They did not produce any defence evidence. The trial Court rendered the impugned judgment extensively referring to the oral and documentary evidence placed before it and brushed aside minor inconsistencies and insignificant discrepancies due to the mental state in which PW.1, the wife of the deceased, would have been immediately after the incident. The trial Court considered that the earliest version in Ex.P1 – First Information Report could not have been an encyclopedia of the entire case and the presence of accused Nos.1 to 4 on two occasions within a short time, though not mentioned in Ex.P1 has to be believed. The trial Court further noted that the prosecution could not examine some of the other witnesses cited, as they went to other places in search of livelihood. The prosecution is said to have made efforts to secure their presence, but in vain. Relying on an Apex Court’s judgment, the trial Court refused to draw any adverse inference on that ground against the prosecution. The trial Court considered the evidence of PWs.1, 2 and 5 to have satisfactorily established that accused Nos.1 to 4 assaulted Salaiah and kicked him on his testicles, which might have possibly caused his death. The trial Court also presumed that in view of the deceased having hydrosel on his right side, even a minor impact would have resulted in shock causing instantaneous death. The trial Court consequently concluded that the indiscriminate beating of the deceased by accused Nos.1 to 4, including a kick on the testicles resulting in instantaneous death, was proved but as the accused were not armed with any weapons; since there was no previous enmity between the parties; as the dispute and assault were sudden due to the deceased obstructing the accused from taking Padma and as the accused had no intention to kill or to cause any bodily injury that would cause death, the offence could not have been under Section 302 of the Indian Penal Code. The trial Court considered that the case fell under Section 304 Part II of the Indian Penal Code and accordingly convicted the accused. After examining the accused on the question of sentence, the trial Court imposed a sentence of rigorous imprisonment for five years, each, while setting off the period of remand under Section 428 of the Code of Criminal Procedure, in the light of their young age. The accused questioning the said judgment in this appeal contended that except the wife and brother of the deceased examined as PWs.1 and 2, no other witness was examined by the prosecution and Ex.P1 never referred to the visit by the accused twice. The evidence of PW.2 that by the time he came out, Salaiah died and that of PW.5 about only a small injury on the eye brow of the deceased, should have been appreciated, and when PW.1 stated during cross examination that she did not give any report to the police, the trial Court should not have accepted the presentation of Ex.P1, report. The trial Court ought to have acquitted the accused giving the benefit of a reasonable doubt under the circumstances and hence they desired that their conviction and the consequential sentences, be reversed. Sri P.Prabhakar Reddy, learned counsel representing Sri C.H.Siddaiah, learned counsel for the appellants, and Sri K.Venkateswar Rao, learned counsel representing the learned Public Prosecutor, are heard. The point for consideration is, whether accused Nos.1 to 4 assaulted the deceased – Salaiah resulting in his instantaneous death, as alleged, and if so, what offence they committed and what punishment they should receive? POINT:- Ex.P1, the earliest version from PW.1 about the incident, reached the police within about six hours from the time of occurrence of the incident and was reasonably prompt. It is not even the case of the accused that there were any earlier differences or disputes between them and the family of the deceased and accused were closely related. The claim that Salaiah himself performed the marriage of his niece Padma with his nephew, the first accused, is also not in dispute, and therefore, the earliest version need not be suspected to be possibly vitiated by any deliberation or fabrication or motive. The complaint of PW.1 under Ex.P1, is about the deceased - Salaiah being beaten with hands and kicked on his testicles resulting in his spot death, and the background was also stated to be the intervention by Salaiah to prevent Padma being forcibly taken away. Ex.P2 - inquest panchanama, also is to the same effect and the independent mediators came to the opinion, on the basis of the statements of the blood relatives and witnesses. The inquest was also conducted within two hours of the First Information Report and the scene of offence panchanama – Ex.P3 was conducted within half an hour earlier, even which was according to the complaint of PW.1 that accused Nos.1 to 4 beat her husband till death, the previous night. Even if the alleged confessions of accused Nos.1 to 4 respectively under Exs.P5 to P8 were to be ignored, Ex.P9 – post mortem report does not indicate the deceased breathing his lost due to any disease or sickness. Apart from noting an abrasion over the right eye brow and the presence of right hydrosel, the physical examination of the dead body did not reveal any other abnormality, and consequently, the death could have been only due to shock on assault, was the opinion of the medical officer. The medical officer as PW.5 also ruled out the possibility of any food poisoning or other poisoning being the cause of death as the stomach was empty and there was nothing in the documents placed on record to suspect the credibility of the prosecution story about happening of the incident. PWs.6 and 7 are only the investigating officers and there is nothing in their evidence to suspect the eye witnesses, PWs.1 and 2. It is true that PW.7 did not observe how many persons accompanied PW.1 to the police station or who was the scribe of Ex.P1. It is also true that PW.6 did not examine the other members of the family of the deceased during investigation, though they were present in the house at the time of the incident and that he did not verify about the deceased being hydrocoral patient or not. However, any deficiencies in the investigation by PWs.6 and 7 can have no impact on the credibility of PWs.1 and 2, corroborated by PW.5. PW.4 is the mediator for the panchanamas for the alleged confessions of the accused and PW.3 is the mediator for the inquest panchanama and their evidence has no direct bearing on the questions in issue. It is also true that the claim of PW.3 that he noticed some small contusion over the right testicle of the deceased was contradicted by PW.5, who has deposed that there were no injuries or injury marks on the testicles. But the same may only improbablise such a kicking by any of the accused on the testicles intending or knowing the same would have such a violent impact as to cause instant death. PW.5 – the medical officer admitted that he did not notice any semon, vomiting or blood stains over the clothes and he did not also notice any mud or tears or indications of struggle on the clothes of the deceased. He did not also notice any abnormality or any discharges from the nose, mouth, anus etc. He also stated that it was not a natural death and even the injury on the eye brow was sufficient to cause death. He excluded the possibility of the said injury being caused while bringing the body in a tractor and thus his evidence shows that the dead body was found to have only a small abrasion over the right eye brow and there is no reason to differ from the medical expert’s opinion that the shock of an assault also may cause death. While it is true that the evidence of PWs.1 and 2, the wife and brother of the deceased, is tainted with interestedness requiring close and careful scrutiny, as already stated, they had no motive or reason to falsely implicate the accused. PW.1 broadly reiterated her earlier version except for the allegation that the visit by the accused was twice and the assault on the second occasion resulted in death. The fact that PW.1 is an illiterate rustic woman has to be kept in view in appreciating her evidence and so is PW.2 and the approach of the trial Court in refusing to magnify any minor circumstances arising out of their evidence is but proper. When accused Nos.1 to 3 are none other than the sons of the deceased’s brother and when the deceased and his brother were still so cordial as to consume alcohol together while returning from Mysamma temple a day earlier, there was no reason to PWs.1 and 2 to implicate the accused falsely. Of course, it is true that the claims of PWs.1 and 2 about the accused kicking on the testicles of the deceased did not have any corresponding injuries on the testicles found by PW.5. It is also true that during cross - examination, PW.1 stated that she did not give any report to the police and PW.2 stated that by the time he woke up, he heard the commotion that Salaiah died. It is also true that there are some other minor variations between the versions of PWs.1 and 2. But these things need to be appreciated also with reference to the distance of time between the incident and their examination before the Court. The incident was on 15.06.2002 and they were examined on 18.01.2005 by the Court. The lapse of time and the natural lapse of human memory are also justifying reasons for the insignificant discrepancies. Thus, the conclusion of the trial Court about the happening of the incident need not be disturbed. But it is seen from the impugned judgment that the trial Court had straight away considered the case to be falling under Section 304 Part II of the Indian Penal Code without elaborating the reasons for coming to such a conclusion. The conclusion of the trial Court on fact is that accused Nos.1 to 4 beat the deceased indiscriminately and kicked on his testicles resulting his spontaneous death. It also concluded that the beating was only with hands and legs without using any weapon and without any previous enmity and without any possibility of foreseeing that the deceased would die due to the assault with hands and legs. The trial Court also found that the attack by accused Nos.1 to 4 was sudden due to the intervention by the deceased obstructing Padma being taken by force without any intention to kill or to cause bodily injury, as will cause death. These circumstances undoubtedly bring the case out of the scope of Section 302 of the Indian Penal Code and to bring the same within Section 304 Part II of the Indian Penal Code, what was required is proof of the act being done with the knowledge that it is likely to cause death, without any intention to cause death or to cause such bodily injury as is likely to cause death. The abrasion found on the person of the deceased could not have been straight away construed, as such, bodily injury as is likely to cause death and at any rate accused Nos.1 to 4 could not have been attributed with any knowledge that they were causing such an injury as was likely to cause death. The conclusions of the trial Court in this regard which remained unchallenged by the prosecution should straight away lead to the conclusion that the facts and circumstances do not justify bringing the case within the scope of Part II of Section 304 of the Indian Penal Code. The scanning of the relevant provisions of the Indian Penal Code may suggest with reference to their applicability to the facts of the present case that this is a case of accused Nos.1 to 4 voluntarily causing hurt to the deceased - Salaiah punishable under Section 323 of the Indian Penal Code. The Indian Penal Code imposes punishment on the wrong doers for the acts or omissions for the requisite mens rea but not the consequences that ensue from such acts or omissions and therefore notwithstanding the fact that the simple hurt caused by accused Nos.1 to 4 to the deceased - Salaiah resulted in his death, it will not make the offence anything more grievous. The assault can also be not brought within the scope of Section 334 of the Indian penal Code as a hurt voluntarily caused on provocation or grave or sudden provocation as the intervention by Salaiah to prevent Padma being taken away by force or Padma being assaulted cannot be construed to be giving any right to any of the accused to be gravely or suddenly provoked. The intervention was the reaction to the assault by the accused on Padma and cannot be an excuse for causing any hurt to Salaiah. Therefore, while the offence is not the lesser one under Section 334 of the Indian Penal Code, the accused shall be found guilty of the offence punishable under Section 323 of the Indian Penal code. The punishment which can be awarded for the said offence is imprisonment up to one year or fine up to Rs.1,000/- or both. Taking into account that the accused had no past criminal record, were young in age by the time of the offence and were subjected to the criminal proceedings since more than seven years, interests of justice will be met by imposing a sentence of imprisonment for a period of six months each without any fine. Accordingly, the conviction of accused Nos.1 to 4 in S.C.No.22 of 2004 on the file of the IV Additional District and Sessions Judge (Fast Tract Court), Siddipet by the judgment dated 30.05.2005 for an offence punishable under Section 304 Part II of the Indian Penal Code and the consequential sentences imposed on them are set aside and accused Nos.1 to 4 are found guilty of an offence punishable under Section 323 of the Indian Penal Code and are sentenced to undergo rigorous imprisonment for a period of six months, each, in which, the period of remand or sentence already undergone by them, shall be set off under Section 428 Cr.P.C. The Criminal Appeal is ordered accordingly. ___________________ G. BHAVANI PRASAD, J 3rd December 2009 KH