*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +CRIMINAL APPEAL No.2630 of 2004 % 19-10-2011 #Nangina Venkatarao ….Appellant Vs. $ State of A.P rep. by P.P, High Court, Hyderabad …. Respondent !Counsel for the Appellant : Sri I.V.N.Raju Counsel for the Respondent: Public Prosecutor <Gist : >Head Note: ? Cases referred: 1. AIR 1971 Supreme Court 1208 2. AIR 1991 Supreme Court 1316(1) IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2630 of 2004 DATE: 19.10.2011 Between: Nangina Venkatarao …… Appellant And State of A.P rep. by P.P, High Court of A.P, Hyderabad …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2630 of 2004 JUDGMENT : The appellant/A-1 was convicted by the Principal Sessions Judge, West Godavari District at Eluru in Sessions Case No.502 of 2001 by judgment dated 29.10.2004, of the offence under Section 304 Part II I.P.C and was sentenced to rigorous imprisonment of three years and fine of Rs.500/-, along with another. Questioning the same, A-1 alone filed this appeal. 2) The offence took place on 08.04.2000 at toddy shop of P.W-3 in Ponguturu village at about 3.00 P.M. It is alleged that when A-1 was murmuring about his family affairs, the deceased objected A-1 and that there was heated conversation between the deceased and the accused and that the deceased hit A-1 with M.O-1 knife and caused bleeding injury to A-1’s hand fingers and that thereupon A-1 snatched M.O-1 knife from the deceased and with the help of A-2, A-1 beat the deceased with knife on his head and caused instantaneous death. Plea of A-1 is one of not guilty. After trial, the lower Court found A-1 and A-2 guilty under Section 304 Part II I.P.C even though charge was framed under Section 302/34 I.P.C. A-2 did not file any appeal. 3) It is contended by the appellant’s counsel that even if evidence of P.W-3 is believed in this case, A-1 inflicted the blow on head of the deceased by way of exercise of his right of private defence. He contends that the deceased was the aggressor and he was armed with M.O-1 at the time of offence and he dealt blow with M.O-1 knife on A-1 before A-1 snatching the same knife and hitting the same on head of the deceased. 4) There is evidence of P.W-3 alone in this case as eye witness to the occurrence. The offence took place at his toddy shop. P.W-1 is mother and P.W-2 is wife of the deceased. They were not witnesses to the occurrence. They were informed about the offence. P.W-1 says that M.O-1 knife was found at the dead body. P.W-4 is village administrative officer of Kannapuram village who sent Ex.P- 1 report about the occurrence to Koyyalagudem Police Station. P.W-7 who was the then Sub Inspector of police, Koyyalagudem police station received Ex.P-1 report on 08.04.2000 and registered the same as case in Crime No.25/2000 under Section 302/34 I.P.C and issued Ex.P-7 F.I.R. P.W-8 is the then Inspector of Police, Jangareddigudem Circle holding in-charge of Polavaram Circle within whose jurisdiction the offence took place. He took up investigation in this case. He observed scene of the offence under the cover of Ex.P-2 observation report in the presence of P.W-4 and another and seized M.O-1 curved knife along with M.O-2 broken pieces of its wooden handle, M.O-3 lungi and M.Os 4 and 5 blood stained earth and control earth from the scene. P.W-8 got the scene of offence photographed as per Exs.P-8 to P-11 photographs. He also prepared Ex.P-12 rough sketch of the scene. On the next day, he conducted inquest on dead body of the deceased in the presence of panchayatdars including P.W- 4 under the cover of Ex.P-3 inquest report and examined witnesses. P.W-6 was the medical officer, Government Hospital, Jangareddigudem who conducted post mortem examination on dead body of the deceased and gave Ex.P- 6 post mortem examination certificate opining that death of the deceased was due to cardio respiratory failure due to shock due to extra cranial and intra cranial haemorrhage and injury to brain and meninges. He says that injuries caused to the deceased are possible with wooden handle M.O-2 of M.O-1 knife. He found two injuries on the dead body, one on parietal region and the second one in front of left ear. Internal examination revealed haematoma underneath the scalp skin and scalp. There were two fractures of parietal bone and there was haematoma on both sides of hemisphere. There was crush injury of meninges. Brain was injured on both sides. Blood was collected in the middle and posterior cranial fossa. There was another haematoma in front of left ear. 5) During the course of investigation, injury was found on A-1 and so A-1 was sent to P.W-12 who was another medical officer in Government Hospital, Jangareddigudem for examination and report. P.W-12 examined A-1 on the same day of offence and gave Ex.P-13 wound certificate. He found cut injury on left thumb of ½”x ½” in size and another cut injury on left index finger of ½” x ½” in size on A- 1. P.W-9 who is another Sub Inspector of police, Koyyalagudem Police Station arrested A-2 on 21.06.2000 at his house. P.W-10 is the police constable who took dead body of the deceased from the place of incident after inquest to Government Hospital, Jangareddigudem and presented the same before P.W-6 for post-mortem examination. P.W-11 is the successor of P.W-8 in Polavaram circle who arrested A-1 after he was discharged from the hospital. He sent material objects to Regional Forensic Science Laboratory, Vijayawada for examination. 6) As pointed out earlier, there is only evidence of P.W- 3 in this case to prove the offence and the entire case rests on P.W-3’s evidence. After evaluating P.W-3’s evidence, the lower Court came to the conclusion that the A-1 was the aggressor in this case and found the accused guilty of the offence. The said finding is disputed in this appeal. It is evidence of P.W-3 that at about 3.00 P.M four years ago, the incident took place at the place where he sells toddy. P.W-3’s son taps toddy from trees whereas P.W-3 sells the same. He says that A-1 was singing obscene songs and that A-1 found fault with the deceased for the same and questioned the deceased as to why he was singing obscene songs and that the deceased asked A-1 also to sing the same in case he was interested. Evidence of P.W- 3 shows that there was exchange of vulgar words between A-1 and the deceased. P.W-3 says that the deceased was having a knife which is used for cutting Eeta Pullalu for preparing baskets and that the deceased beat A-1 with the said knife resulting in injury to the hand of A-1 and that thereafter A-1 snatched knife from hand of the deceased and dealt a blow on head of the deceased with wooden handle twice and that wooden handle broke into three pieces. He says that A-2 held hand of the deceased when A-1 gave blows to the deceased and that the deceased fell down and died on the spot. Though there was some attempt in cross-examination of P.W-3 with regard to omissions in previous statement of P.W-3 recorded by P.W- 8 during the course of investigation, the alleged omissions were not proved by confronting the same to the investigating officer P.W-8 in his cross-examination. Before this Court also the appellant’s counsel fairly contended on the basis of evidence of P.W-3 that even if P.W-3’s version is accepted, there is right of private defence available to A-1 as against the deceased. 7) The appellant’s counsel placed reliance on Dominic Varkey V. The State of Kerala[1] of the Supreme Court and contended that right of private defence of A-1 commences and exists until there is reasonable apprehension in his mind that the deceased is going to kill him with M.O-1 knife. Relevant portion of verdict of the Supreme Court reads as under: “Broadly stated, the right of private defence rests on three ideast first, that them must be no more harm inflicted than is necessary for the purpose of defence; secondly, that there must be reasonable apprehension of danger to the body from the attempt or threat to commit some offence and, thirdly, the right does not commence until there is a reasonable apprehension. It is entirely a question of fact in the circumstances of a case as to whether there has been excess of private defence within the meaning of the 4th clause of section 99 of the Indian Penal Code, namely, that no more harm is inflicted than is necessary for the purpose of defence. No one can be expected to find any pattern of conduct to meet a particular case. Circumstances must show that the Court can find that there was apprehension to life or property or of grievous hurt. If it is found that there was apprehension to life or property or of grievous hurt the right of private defence is in operation. The person exercising right of private defence is entitled to stay and overcome the threat.” Reliance was also placed on Buta Singh V. The State of Punjab[2] of the Supreme Court and it was contended that observation of the lower Court that A-1 exceeded right of private defence is erroneous because A-1 could not have weighed the situation in golden scales in the heat of the moment. The Supreme Court observed therein: “Besides, even if it were so, having regard to the nature of the incident, it is difficult to say that he exceeded the right of private defence for the obvious reason that he could not have weighed in golden scales in the heat of the moment the number of injuries required to disarm his assailants who were armed with lethal weapons.” 8) No doubt, the deceased in the case on hand was armed with M.O-1 knife and A-1 was not armed with any weapon at the time of offence. Genesis of the case is singing of obscene songs by A-1 at toddy shop of p.W-3, for which the deceased objected. There was exchange of vulgar words between the deceased and A-1. Thereupon the deceased attacked A-1 with M.O-1 knife and hit A-1 with M.O-1 on his left hand causing two cut injuries to left thumb and left index finger with that knife. Immediately A-2 caught hand of the deceased and A-1 snatched M.O-1 knife from hand of the deceased. It is only after A-1 snatched M.O-1 knife from hand of the deceased, A-1 dealt blows on head of the deceased with handle part of the knife. The blows were so severe that handle of the knife broke into three pieces like M.O-2. The deceased was dealt blows by A-1 with wooden handle of the knife after the deceased was disarmed. Right of private defence is available to A-1 only until A-1 entertains reasonable apprehension in his mind that the deceased is going to attack him and cause his death or cause grievous or any other injury to his body. The moment A-1 snatched M.O-1 knife from hand of the deceased it cannot be said that A-1 still continued to apprehend that the deceased is going to attack him with M.O-1 knife to cause danger to his life or to his body. After disarming, the deceased became helpless and had no weapon to do any aggression against A-1. After snatching M.O-1 knife from the deceased, the act of A-1 hitting the deceased with wooden handle of the knife on his head amounts to retaliation of the blows and it cannot be equated with blow in exercise of right of private defence of A-1. In my opinion, after snatching M.O-1 knife from the deceased and after disarming the deceased, right of private defence was not available to A-1. Right of private defence which was existing prior to snatching of the knife from the deceased, ceased to exist the moment the deceased was disarmed and M.O-1 knife was snatched from the deceased. Therefore, action of A-1 in hitting the deceased with wooden handle of M.O-1 knife on his head is not saved by any right of private defence of A-1. In the circumstances, the lower Court rightly came to conclusion that A-1 was not having right of private defence against the deceased and rightly found him guilty. 9) It is contended by the appellant’s counsel that at best the case comes under either Section 325 I.P.C or under Section 326 I.P.C and it cannot attract liability under Section 304 Part II I.P.C. No doubt, A-1 was not having any intention to kill the deceased. That was the reason why the lower Court did not find A-1 guilty under Section 302 I.P.C. It cannot be said that A-1 had no knowledge of the result of the blows inflicted by him on head of the deceased. The blows inflicted by A-1 on the deceased were so hard that wooden handle of the knife became into three pieces vide M.O-2. The deceased was aged 35 years and was a middle aged person. There were two fractures of the parietal bone apart from haematoma. There were injuries to brain matter as well as meninges. Net result of the blows is spot death of the deceased. In those circumstances, I do not agree with the contention of the appellant’s counsel that A-1 had no knowledge about result of the blows inflicted by him. Facts of this case certainly attract penal liability under Section 304 Part II I.P.C. There are no grounds to interfere with the findings as well as sentence awarded by the lower Court on A-1/appellant. 10) In the result, the appeal is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J October 19, 2011 NOTE: L.R.Copy to be marked (B/o)ksh [1] AIR 1971 Supreme Court 1208 [2] AIR 1991 Supreme Court 1361(1)