HONOURABLE SRI JUSTICE V.ESWARAIAH AND HONOURABLE SRI JUSTICE P.SWAROOP REDDY CRIMINAL APPEAL No.74 of 2008 Between: Gutta Bhaskar Rao and others …. Appellants and State of A.P., rep. By its Public Prosecutor …. Respondent This court made the following: HONOURABLE SRI JUSTICE V. ESWARAIAH AND HONOURABLE SRI JUSTICE P. SWAROOP REDDY CRIMINAL APPEAL No.74 of 2008 JUDGMENT: (per the Hon’ble Sri Justice P.Swaroop Reddy) This is an appeal against the judgment of the learned III Additional Sessions Judge, (Fast Track Court), Khammam in Sessions Case No.425 of 2007. Appellants were prosecuted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “IPC”) and were convicted to undergo imprisonment for life and also to pay a fine of Rs.500/- in default to suffer simple imprisonment for two months and to pay a fine of Rs.1,500/-. 2. The case of the prosecution in brief is stated as follows: - The deceased, Gutta Satyanarayana, A2-Gutta Babu Rao and A3-Sambasiva Rao are own brothers. A1 is the son of A2. All of them are residents of Lachannagudem of Vemsoor Mandal. On 03.09.2005 at about 02:00 PM, the cattle of the deceased trespassed into the lands of the accused situated at the outskirts of the village and grazed in the fields. On seeing the same, A1 and A3 picked up quarrel with the deceased. On 04.09.2005 at about 09:30 AM, the deceased went to the tent house of the complainant, and narrated the quarrel that took place. At that time A1 came there, picked up quarrel with the deceased and abused him. On that the deceased beat A1 on his back with his hand. In the meantime, A2 came there and asked about the matter. After some enquiry, A1 and A2 left the place. About 15 minutes thereafter A1 to A3 came to the tent house of the complainant, picked up quarrel with the deceased. A2 and A3 held the hands of the deceased firmly, while A1 kicked the deceased with his knees on his abdomen and lower abdomen, till the deceased fell down. A2 and A3 also beat the deceased with hands and elbows indiscriminately. The persons present there interfered and tried to pacify the matter, but the accused continued beating him. Thereafter the deceased went home and informed the incident to his wife and others. As he was suffering with pains, his wife took him to a private hospital of Dr.Murali Krishna at Vijayawada on 04.09.2005, where the deceased died on 07.09.2005 while undergoing treatment. On 07.09.2005 at 09:30 AM, the complainant, presented a report to Vemsoor Police station and a case was registered and investigation was taken up and after investigation, charge sheet was filed against the accused. 3. Charges under Section 302 r/w 34 IPC was framed against all the accused and the accused pleaded not guilty. 4. On behalf of the prosecution, P.Ws.1 to 13 were examined and Exs.P1 to P8 were marked. After the evidence of the prosecution witnesses was closed, the incriminating circumstance in their evidence is put them when they were examined under Section 313 Cr.P.C. 5. On the basis of the evidence on record, the learned trial judge has convicted the accused for the offence under Section 302 IPC and sentenced to suffer imprisonment for life apart from a fine of Rs.500/- in default to undergo simple imprisonment for two months. Aggrieved by the same, the appellants preferred this appeal. 6. The contention of the learned counsel for the appellants is that there is absolutely no evidence against the accused for the offence under Section 302 IPC and the learned trial Judge has erroneously convicted them. Whereas, the learned Public Prosecutor contends that the learned trial Judge has convicted the appellants as there was sufficient evidence. There was no reason for the complainant to falsely implicate the accused in this case as they were none other than the kith and kin of the deceased. 7. Now the point for consideration is “Whether the prosecution proved its case against the appellants beyond all reasonable doubt?” 8. As per the F.I.R., dated 07.09.2005, given by P.W.1, while he was at his shop the deceased came to his shop on 04.09.2005 at about 09:30 AM and informed him that his brother’s son A2 and A3 together quarreled with him at Lachannagudem center and pushed him and the reason being cattle trespass. During that period, A1 came there and used filthy language against the deceased and P.W.1. One Suryanarayana-P.W.4 tried to intervene along with P.W.1, A2 came there, the incident took place for some time. People who present there i.e., P.Ws.1 to 4 tried to pacify but the accused did not listen. A2 and A3 caught the deceased and A1 kicked the deceased in his stomach and under the stomach, then the deceased fell down. Thereafter all the three accused beat him indiscriminately with hands on his back and he was shifted to Andhra Hospital, where he died on 07.09.2005. Thus the F.I.R. gives all the details of the incident. 9. Learned counsel for the appellants contends that the incident has admittedly taken place on 04.09.2005 and the F.I.R. was lodged on 07.09.2005, as such no reliance can be placed on the F.I.R. Even though there is abnormal delay in the F.I.R., it is a case where the deceased was beaten up with hands in the stomach by A1 and no one obviously thought that the deceased received serious injuries and that would lead to his death. For that reason apparently no complaint was given to police and only on information from the hospital, police came there. Learned counsel for the appellants also contends that according to the wife of the deceased, P.W.2, her statement and the statement of the deceased were recorded at the hospital and they were suppressed. On account of these suppressions, an adverse inference has to be drawn against the prosecution case. 10. We are not impressed by this argument, particularly in view of the nature of this case, where already it was thought to be a case of minor incident as the assault was by hands and legs and no injuries were received by the victim on the vital parts of the body at the time of incident, though he was obviously beaten in the stomach causing injuries of internal organs that ultimately lead to his death. That being the case, even though some information was made to the police, they also might have ignored it as a petty incident and we are not inclined to give any weight to the circumstance with regard to the delay in the F.I.R. and for the lapses in producing the alleged statement of the deceased and the statement of P.W.2 that was allegedly recorded by the police. Further no statement might have been recorded but only some formal enquiry was made by the police about the incident. 11. Coming to the actual incident, P.W.1 the complainant is not enimical against any of the accused. He is an independent witness. The other witness i.e., P.W.2 the wife of the deceased is none other than the sister-in-law of two of the accused and aunt of one of the accused. No reasons are shown to say that she has any reason to falsely implicate the accused in this case. The medical evidence reveals that the deceased received internal injuries and died due to peritonitis as a result of injury to anterior abdominal wall and chest. 12. Learned counsel for the appellants contends that the cause of death was not the assault of the accused, but it was only on account of medical negligence, as no proper treatment was given to the deceased, he developed septicamia and died and the death could not be attributed to the appellants. Still in case there was no assault, there would not have been any occasion for any surgery or consequent septicemia or the death of the deceased. However, this kind of death perhaps would not come within the scope of Section 302 IPC, as the accused never had any intention or knowledge of causing the death of the deceased. 13. Thus on facts, we are inclined to accept the incident has taken place and the appellants have attacked the victim and on account of the injuries received by the victim, he died. The offence would not fall under Section 302 IPC, but at the most it would come under Section 304(II) IPC. Accordingly, we modify the offence to one under Section 304(II) IPC from Section 302 IPC. 14. In the result, the Criminal Appeal is allowed in part. The conviction and sentence of imprisonment recorded against the appellants-accused No.1 to 3 for the offence punishable under Section 302 IPC by III Additional Sessions Judge, (Fast Track Court-II), Khammam, vide judgment, dated 26.12.2007 in S.C.No.425 of 2007, are hereby set aside and instead, the appellants are convicted for the offence under Section 304 Part II of IPC and sentenced to undergo imprisonment for three years, the fine amount imposed remains unaltered. The remand period, if any, shall be given set off. _________________ V. ESWARAIAH, J ______________________ P. SWAROOP REDDY, J December 20, 2010 LMV