THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL NO.885 OF 2007 JUDGMENT: {Per the Hon’ble Sri Justice N.R.L.Nageswara Rao} 1. The sole accused in Sessions Case No.224 of 2006 on the file of the Sessions Judge, Machilipatnam at Krishna, convicted of the offences punishable under Sections 302 and 324 of the Indian Penal Code, 1860 {“IPC” for brevity} and sentenced to suffer life imprisonment with fine of Rs.50/- {Rupees fifty only) in default to suffer one month simple imprisonment for the offence under Section 302 IPC and sentenced to six months imprisonment for the offence under Section 324 IPC, is the appellant herein. 2. The case of the prosecution is that the deceased Deesari Sarojini, aged about 50 years, was the wife of the accused and P.W.1 is the mother of the deceased and they are residents of Yelamarru Village. The marriage of the accused and the deceased was performed about 30 years back and they were blessed with three children and all the three children were married. The last daughter, Bhavani, was residing with the mother, as her husband expired. The accused suspected the fidelity of his wife and found fault with the deceased living with her last daughter and several times he made demands to come and live with him and that she did not oblige. 3. On 26.03.2006 at about 6 pm, the accused went to the house of the deceased and again called her to come and live with him. She did not come and he left the house threatening her. On 27.03.2006 in the morning hours, P.Ws.1 and 2 went for coolie work and at about 2 pm, when they were returning along with the deceased, the accused asked the deceased Then the deceased arrogantly replied and refused. The accused took a toddy tapper knife and hacked the deceased indiscriminately causing injuries to the vital organs. P.W.1 interfered and she was also beaten on the backside of her head. P.W.3 came to the scene and the accused fled away. The deceased and P.W.1 were taken to the hospital and on the way to hospital, the deceased died. On a complaint given by P.W.1, a case in Crime No.18 of 2006 under Sections 302, 307 and 324 IPC were registered and investigated into. During the course of investigation, the statements of the witnesses were recorded, panchanama of the scene was conducted and dead body was sent for inquest. P.W.1 was also sent for medical examination. On 27.03.2006, the accused was arrested and he gave a confessional statement. The accused was sent for remand. The investigation disclosed that the accused is guilty of the offence under Sections 498-A, 302, 307 and 324 IPC. The accused was committed to the Court of Sessions and the learned Sessions Judge, after appearance of the accused, framed the following charges. Firstly : That prior to 27.03.2006 at Yelamarru Village, Pedaparupudi Mandal, you being the husband of Deesari Sarojini by your willful conduct suspected her fidelity and harassed her and that you thereby committed offence punishable under Section 498 (A) IPC and within my cognizance. Secondly : That you on 27th day of March, 2006 at about 2 pm at Yelakunta line donka in Yelamarru village committed murder by intentionally or knowingly causing the death of Deesari Sarojini by hacking her with a toddy tapper knife indiscriminately and that you thereby committed offence punishable under Section 302 IPC and within my cognizance. Thirdly : That you, on the same date, time and place mentioned in Charge No.2, hacked Surimilli Satyavathi with a toddy tapper knife and caused bleeding injury with an intention to kill her, if by that act you had caused the death of Surimilli Satyavathi you would have been guilty of murder and that you thereby committed offence punishable under Section 307 IPC and within my cognizance. Lastly : That you, on the same date, time and place mentioned in charge No.2 voluntarily caused hurt to Surimilli Satyavathi by means of a toddy tapper knife which is an instrument for cutting used as weapon of offence likely to cause death and that you thereby committed an offence punishable under Section 324 IPC and within my cognizance. 4. On behalf of the prosecution, P.Ws.1 to 14 were examined and Exs.P1 to P20 and MOs 1 to 12 were marked. After the evidence of the prosecution was over, the accused was examined under Section 313 of the Code of Criminal Procedure, 1973 (“Cr.P.C.” for brevity). No oral defence evidence was adduced but Exs.D1 and D2 were marked. After considering the evidence on record, the learned Sessions Judge passed conviction and sentence, which are attacked in this appeal. 5. As the accused has no counsel to defend himself, Smt. J.Kusumavathi, learned counsel, is appointed as State Legal Brief. 6. Heard the arguments of the learned counsel for the appellant and the learned Public Prosecutor. 7. The points that arise for consideration are (1) Whether the prosecution has proved that the accused has committed murder of the deceased and caused injuries to P.W.1? and (2) Whether the conviction and sentence imposed by the learned Sessions Judge is legal and sustainable? 8. In support of the prosecution case, P.W.1 deposed that the deceased was staying with her daughter at Yelamarru Village and there were disputes between the accused and the deceased and the accused asking the deceased to join him but she refused. On the next day, she along with the deceased and P.W.2 went to the fields at about 7 am and they attended to the coolie work and at about 2 pm, they returned and when they reached near Yalakunta, the accused came and demanded the deceased to come with him and the deceased refused. The accused again persuaded and the deceased gave the same reply. Then the accused took the tapper knife and hacked on her chest and when P.W.1 tried to interfere, the accused hacked her also on the back of her head. Thereafter, the deceased and herself were taken to the hospital and she gave complaint-ExP1. In the cross examination, she stated that the deceased was her first issue. She spoke about the differences between the accused and the deceased. She also denied that the deceased was harassing the accused due to illegal contacts with Bheemannadora. She denied the suggestion that the accused did not come and demanded the deceased to join him and that she did not witness any incident. 9. The evidence of P.W.2 is also about the differences between the accused and the deceased and on the date of the incident, she along with the deceased, P.W.2 and others going to coolie work and while returning, the accused demanding the deceased to join and there was wordy exchange between the accused and the deceased. Thereafter, the accused hacked the deceased and P.W.1. In the cross examination of this witness, there is no much material to discriminate the testimony being entrusted who were inimical with the accused. The evidence of P.W.3 is that he saw the accused in the outskirts of Yalakunta in possession of a knife and he went to the village and informed the conduct of the accused to the villagers. He identified MO1 as the one, which the deceased was holding at the time of the incident. 10. The evidence of P.W.4 is about the apprehension of the accused at Brahmamgari Matam after coming to know about the incident and handing over to the police along with a blood stained knife. The evidence of P.W.5 is that the deceased was her mother and the accused is the father. She also spoke about the accused demanding the deceased to come and join with him on the previous day and the refusal of the deceased and subsequently, coming to know about the attack on the deceased on the next day. The evidence of P.W.6 is that the deceased and others attending the labour work in his fields till 2 pm. The evidence of P.W.7 is that the knife, MO1, belongs to him and it was committed theft of after the accused came to him and consumed the toddy. 11. The evidence of P.W.8 is that he brought the injured to the village and thereafter; they were taken in an auto to Gudivada. The evidence of P.W.9 is that he is an auto driver and he took the deceased and the injured to the hospital. The evidence of P.W.10 is about taking photographs at the scene. The evidence of P.W.11 is about his presence at the time of panchanama of the scene and also recording the confession of the accused and recovering the knife and other blood stained clothes of the accused. The evidence of P.W.12 is about examining P.W.1 and finding injuries in Ex.P14, which are as under. “The injured person was first seen at 3.10 pm on 27.03.2006 and he examination was commenced at 3.10 pm on 27.03.2006. When the following injuries were found: A 2½ interior injury over occipital region bone deep. I am of the opinion that the injury is simple might Hemorrhage caused by sharp object of less than 6 hours duration.” He also deposed about conducting post mortem examination of the deceased and noticing the injuries in Ex.P15, which are as under. “The cause of death to the best of injury to vital organ (Brain) on Hemorrhage shock.” He also opined that the cause of the death is due to injury to vital organs. The evidence of P.Ws.13 and 14 is about the investigation done by them in this case. 12. From the evidence available on record, it is quite clear that the relationship between the accused and the deceased was not cordial. From the evidence of P.W.1, the mother of the deceased, and also from the evidence of P.W.5, the daughter of the accused and the deceased, on the previous day, the accused came and demanded the deceased to come and join him and the deceased refused. Further more, the fact that the deceased was not living with the accused is not disputed. Keeping in mind, the conduct of the deceased in refusing to join him after living for 30 years in marital life, the accused seems to have persisted with his demand for taking the deceased with him. With that intention in mind, on the next day also when the deceased was coming from the fields, he questioned her and requested her to come and join. The evidence of P.Ws.1 and 2 on this aspect clearly establishes that at about 2 pm at Yellakunta, the accused came and stopped the deceased and there was a wordy altercation between them. The accused demanding the deceased to join and the deceased refused to join and there seems to be arrogance on her part. Due to that the accused is said to have caused the death of the deceased by hacking her with a knife. The fact that the deceased died due to homicidal injuries is established by the doctor and also the injuries to the vital organs. P.W.1 also received injuries when she intervened and this also probabilise her presence at the scene of incident. Therefore, the fact that the deceased died due to the injuries caused by the accused is established beyond doubt by the evidence of P.Ws.1 and 2 and also the medical evidence. 13. As can be seen from the evidence on record by the date of the incident, the deceased is said to be aged about 50 years and the accused is aged about 55 years. The wife of the accused is said to have refused to join. Naturally, it is an insult to him and in spite of persistent demands, the deceased was said to be arrogant and adamant in joining him. Therefore, the intention of the accused is only to see that the deceased joins him for a peaceful living but due to the wordy altercation that has taken place at the time of the incident and earlier and the fact that the deceased was continuously refusing to join the accused, he seems to have enraged by the conduct of the deceased and in that sudden provocation, he has caused injuries to the deceased. The fact that the accused was carrying a knife by itself is not a circumstance to hold that the accused intended to kill the deceased because he did not attack directly on the deceased. On the other hand, he made an appeal to come and live with him for which she refused. Therefore, we have no hesitation that the act of the accused does not attract the severity of the crime under Section 302 IPC and in the circumstances and nature of the conduct of the accused, we feel that the accused can only be convicted under Section 304 Part-I IPC, as the act of the accused was in a sudden provocation after the wordy altercation when his wife refused to join him. 14. In the result, the conviction and sentence recorded against the appellant/accused in the judgment dated 26.02.2007 in Sessions Case No.224 of 2006 on the file of the District & Sessions Judge, Krishna, Machilipatnam, for the offence under Section 302 IPC are set aside, instead the appellant/accused is found guilty of the offence punishable under Section 304 Part-I IPC and accordingly, he is convicted and sentenced to undergo Rigorous Imprisonment for a period of seven {7} years. The conviction and sentence of the accused for the offence punishable under Section 324 IPC for causing injuries to P.W.1 are confirmed. Both the sentences shall run concurrently. The period of remand underwent by the appellant/accused during investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. 15. Accordingly, the Criminal Appeal is partly allowed. _____________ (K.C.BHANU, J) _______________________ (N.R.L.NAGESWARA RAO, J) 29th December 2010 RRB