IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.103 of 2006 DATE: 27.10.2011 Between: Sampangi Narsaiah …… Appellant And State of A.P, rep. by its High Court P.P, High Court of A.P …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.103 of 2006 JUDGMENT : The appellant/Accused was convicted by the lower Court under Section 304 Part II I.P.C and was sentenced to Rigorous Imprisonment of 5 years. Questioning the same, the accused filed this appeal. It is alleged that the accused owed Rs.520/- to the deceased towards labour charges and that on 21.09.2004 at about 7.30 P.M at toddy compound in Morthad village. The deceased requested the accused for payment of the said amount of Rs.520/- and that there was quarrel between the accused and the deceased in that regard and that in that quarrel the accused kicked the deceased with leg on his testicles, due to which the deceased fell on ground and died. Plea of the accused is one of total denial and not guilty. After trial, the lower Court found the accused guilty of the above charge. 2) In support of the incident, the prosecution examined P.Ws 1, 2, 4 and 5 to speak to the incident proper. P.W-3 is wife of the deceased. She was not witness to the occurrence. She came to know about death of the deceased and went to hospital and found dead body of the deceased. She expressed her ignorance by saying that she does not know whether the accused owed any amount to the deceased. She says that the deceased never attended any work on tractor of the accused. She was treated as hostile to the prosecution. P.W-6 is photographer who took photographs of the scene and the dead body. P.Ws 7 to 9 are mediators for scene observation and for inquest. They turned hostile to the prosecution. P.W-10 is the medical officer in Government Hospital, Armoor who conducted post mortem examination on dead body of the deceased and gave Ex.P-15 P.M. Certificate. After the incident, P.W-1 gave Ex.P-1 report to P.W-11 who is Sub- Inspector of Police, Morthad Police Station on 21.09.2004 at about 20.30 hours. He registered Ex.P-1 as case in Crime No.156/2004 under Section 304 Part II I.P.C and issued Ex.P-16 F.I.R. He made initial investigation of the case by examining witnesses, by observing scene of the offence under the cover of Ex.P-17 report, by preparing Ex.P-18 rough sketch of the scene. P.W-12 is the then Inspector of Police, Bheemgal circle who took up further investigation in this case, conducted inquest on dead body of the deceased under the cover of Ex.P-19 inquest report, examined some more witnesses, filed Ex.P-20 memo before the Magistrate altering section of law in this case from 304 Part II I.P.C to 304 I.P.C, arrested the accused and filed charge sheet before the Magistrate. The lower Court placing reliance on evidence of P.Ws 1, 2, 4 and 5 recorded finding of guilty of the accused. 3) P.W-1 is elder brother of the deceased. P.W-2 is son of P.W-1. P.W-4 is running a photo studio near the scene. P.W-5 is worker in toddy shop. It is evidence of P.W-1 that the deceased Durgaiah used to attend work on tractor of the accused and that on the date of death of the deceased, he went to toddy shop at Morthad village where the deceased and the accused were also present and that the deceased asked the accused to pay Rs.520/- which was due to him as labour charges and that both the deceased and the accused disputed with each other and that the accused kicked the deceased on his testicles and stomach due to which the deceased fell on the ground and that immediately he, P.W-2 and Laxmaiah shifted the deceased to Tirumala Private Hospital where the doctor declared him dead. In cross-examination he says that the incident took place at 7.30 P.M and that several people were present in the toddy shop. P.W-2 deposed that on the date of incident, P.W-1 and the deceased went to toddy shop at Morthad for consumption of toddy and that he also followed and that the deceased asked the accused for labour charges of Rs.520/- and that the accused replied as if he had no money and tried to go away from toddy shop and that the deceased followed the accused and caught hold of the accused and that the accused kicked the deceased on his testicles and abdomen with his leg and that the deceased fell on the road and that he, P.W-1 and Laxmaiah shifted the deceased to Tirumala Hospital, where the doctor examined and declared him dead. In cross-examination he deposed that he reached toddy shop in about 10 minutes after P.W-1 and the deceased went to that shop and that by the time he went to the shop, the accused and the deceased were disputing with each other. P.W-5 deposed that about one year ago at about 7.00 P.M the deceased disputed with the accused with regard to payment of labour charges and that he sent both of them from the toddy shop and that thereafter the deceased and the accused disputed with each other in front of a photo studio. P.W-5 says that he came to know that the accused beat the deceased and the deceased was shifted to hospital where the doctor declared him dead. In cross- examination he deposed that the incident took place at about 7.30 P.M and that he has not witnessed the incident and did not witness the accused in toddy shop. After quarrel ensued in P.W-5’s toddy shop, P.W-5 sent away the deceased and the accused from his shop and thereafter he did not see how the deceased died and whether the accused kicked him or not. P.W-4 turned hostile to the prosecution. He says that he observed two persons disputing with each other and that one person fell on road and somebody shifted him to the hospital and that the incident occurred in front of his photo studio. But, he did not identify the two persons who participated in that quarrel. The lower Court dispelled argument on behalf of the accused and placed reliance on evidence of P.Ws 1 and 2 in spite of they being closely related to the deceased, because P.W-5 who is independent witness speaks to the accused and the deceased quarrelling with each other at his toddy shop for labour charges and because P.W-4 who is another independent witness speaks to one of the two disputants beating the other due to which the injured falling down in front of his shop. On close scrutiny of evidence of P.Ws 1 and 2 including their cross-examination, there is nothing to suggest that they are speaking anything false. Evidence of P.W-1 is corroborated by contents of Ex.P-1 report given by him to the police. Therefore, the lower Court rightly came to the conclusion that it was the accused who kicked the deceased on his testicles due to which the deceased died. 4) Medical evidence of P.W-10 and Ex.P-15 discloses that the deceased was having one contusion on occipital region and swelling on pubic symphysis and lower abdomen. Internal examination showed that brain matter was congested at occipital region and haemorrhage of both the testes. P.W-10 opined that the deceased died due to shock due to injury to head and testes. Though no overt act was attributed to the accused on the head of the deceased, the lower Court rightly came to the conclusion that the head injury of the deceased was due to fall after he received blow on his testicles from the accused. Having regard to the circumstances which preceded kicking the deceased on his testicles, the lower Court rightly came to the conclusion that it is a case falling under Part II of Section 304 I.P.C. I do not find any circumstances in this appeal to come to a different conclusion. Sentence of 5 years imprisonment imposed by the lower Court is also quite appropriate. 5) In the result, the appeal is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J October 27, 2011 ksh