IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.577 of 2007 DATE:16.08.2010 Between: Bejjanki Sreenivas @ Sreenu and 3 others …… Petitioners And: The State through S.H.O, Karimnagar P.S Rep. By the Public Prosecutor …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.577 of 2007 JUDGMENT : The appellants 1 to 4/A-1 to A-4 were convicted by the III Additional Sessions Judge, Karimnagar in S.C. No.471 of 2005 by judgment dated 21.06.2006 for offence punishable under Section 304 Part-II I.P.C and they were sentenced to rigorous imprisonment for five years. A-1 to A-4 and the deceased Prabhakar were friends. Both the deceased and A-1 to A-4 were accustomed to go to toddy shop at Priyadarshini colony, Bommakal, where the offence took place. It is alleged that on 26.05.2004 at about 13.30 hours, the deceased as well as A-1 to A-4 went to the toddy shop and that the deceased asked the accused to allow him into their company for having toddy and that the accused refused to allow the deceased into the company, due to which the deceased used harsh words abusing the accused, due to which A-1 to A-4 became angry, quarrelled with the deceased, gave fatal fist and kick blows on stomach and other parts of body resulting in rupture on liver and spleen and instantaneous death. 2) The lower Court framed charge under Section 302/34 I.P.C against A- 1 to A-4 who pleaded not guilty of the charge. Though P.Ws 1 to 13 were examined and Exs.P-1 to P-13, Ex.D-1 and M.Os 1 to 3 were marked during trial in the lower Court, evidence of P.Ws 6 and 7 are most relevant in this appeal, coupled with evidence of P.W-11 the doctor who conducted post mortem examination on the deceased. 3) P.Ws 1 to 3 are family members of the deceased. P.W-1 is elder brother, P.W-2 is mother, P.W-3 is another elder brother of the deceased. They came to know about the offence through P.Ws 4, 6 and 7. P.Ws 1 to 3 are not eye witnesses to that occurrence. On receipt of information, P.W-1 went to police station and gave Ex.P-1 report to the police. P.W-12 is the then Sub Inspector of Police, Karimnagar Rural Police Station. He received Ex.P-1 written report from P.W-1 on 26.05.2004 at 3.00 P.M and registered the same as case in Crime No.216/2004 under Section 302/34 I.P.C and issued Ex.P-11 F.I.R. P.W-12 took up initial investigation of the case and then handed over the investigation to P.W-13 who was the then Inspector of Police. After completing investigation, P.W-13 filed charge sheet before the committal Magistrate. In Ex.P-1 report itself, names of A-1 to A-4 are found. Apart from the accused, one more name finds place in Ex.P-1 first information report. There is no delay in giving report by P.W-1 to the police. Since P.W-1 was giving report to the police on information furnished to him by others, Ex.P-1 has no evidentiary value except putting criminal law machinery into motion. 4) P.W-4 deposed that at about 1.30 P.M he was going for attending coolie work and that he observed quarrel in between the deceased and the accused at toddy shop in the outskirts of Bommakal near tank bund and he observed the quarrel and went away and that he did not notice injuries on the victim. Thus, P.W-4 has seen initiation of the quarrel between the accused and the deceased and did not witness result of the quarrel. He was treated as hostile by the prosecution in the lower Court. P.W-6 is a labourer. It is his evidence that about 1½ years ago at toddy compound of Bommakal sivar, he observed all the accused 1 to 4 and the deceased at the toddy shop at about 1.00 P.M and that he was getting cattle grazed near the toddy shop. He says that one accused or all accused beat the accused and that one accused beat the deceased and the remaining accused threw the deceased at the compound and that one accused kicked the deceased and that four accused beat him and that the deceased died on the spot. P.W-1 was having poor vision by the time he was examined in Court in the year 2005. He gave name of only A-4 in his examination. In his cross-examination he deposed that he observed the accused and the incident in close range. He says that he cannot give names of all the accused as he has no prior acquaintance with A-1 to A-4 and that he was not aware of their names. He further says that the offence took place for about half an hour. Though he admitted that a criminal case was filed against him about death of his wife, it has no relevance for the purpose of this case. 5) P.W-7 is brother-in-law of the toddy shop owner. In the absence of his brother-in-law, he was looking after the toddy shop at the time of offence. It is his evidence that A-1 to A-4 came to toddy shop and consumed toddy and went away and that the deceased also came there but did not consume toddy and that all the accused took the deceased Prabhakar away from the toddy shop and that within half an hour after taking the deceased, the accused brought dead body of the deceased and had thrown the same outside the toddy shop. He was treated as hostile by the prosecution in the lower Court. In cross-examination, he admits that he stated to the police about the accused quarrelling and beating the deceased and killing the deceased. 6) Evidence of P.Ws 4, 6 and 7 undoubtedly disclose that there was quarrel between the accused 1 to 4 and the deceased on that day when he died. There is no proof of genesis of that quarrel. The prosecution could not prove the reason for which both the accused and the deceased quarrelled together at the toddy shop. Evidence of P.Ws 6 and 7 undoubtedly disclose that the deceased was beaten with hands and kicked with legs by A-1 to A-4, resulting in his instantaneous death. 7) P.W-11 is the Civil Assistant Surgeon in the Government Head Quarters Hospital, Karimnagar who conducted autopsy on dead body of the deceased on 26.05.2004. He found 5 external injuries which are big contusions on right side of abdomen, left side of abdomen, back of chest, left shoulder and right cheek. He also found two internal injuries namely rupture of right lobe of liver and rupture of spleen. He says that all the injuries are ante- mortem in nature. In cross-examination he deposed that external injuries on dead body may be possible if a person falls on hard surface and that if a person is chronic addict to liquor, there is chance of weakness of liver. He did not speak to possibility of internal injuries due to fall. At any rate, all the 5 injuries are not possible due to a single fall. Ultimately P.W-11 opined that the deceased died of shock and haemorrhage because of laceration of liver and rupture of spleen and that those injuries are sufficient to cause death in normal course. He says that those injuries found on dead body of the deceased are possible with blows. Evidence of P.W-6 is corroborated by the medical evidence with regard to A-1 to A-4 beating the deceased and kicking the deceased. 8) Since the prosecution could not prove genesis of the transaction and since the prosecution proved only participation of A-1 to A-4 in beating the deceased with hands and kicking the deceased with legs, the lower Court rightly came to the conclusion that A-1 to A-4 are punishable for the offence under Section 304 Part-II I.P.C though they were charged for the offence under Section 302 I.P.C. In the circumstances, I have no hesitation to accept finding of guilt arrived at by the lower Court against A-1 to A-4 for offence punishable under Section 304 Part-II I.P.C. 9) In so far as quantum of sentence of imprisonment imposed by the lower Court is concerned, since it is a case of instantaneous death resulting due to fist blows and kicks of A-1 to A-4, I do not find any further mitigating circumstances to reduce the sentence of imprisonment further. 10) In the result, the appeal is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J August 16, 2010 KSH