HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2242 of 2004 Date:11.02.2011 Between: Mudu Gangaram ….Appellant And: State, rep. by PP. .…. Respondent. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2242 of 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the IV Additional District & Sessions Judge, (Fast Track Court), Nizamabad in S.C.No.45 of 2003 on 07.09.2004. The appellant herein who is the accused in the said Sessions Case was prosecuted for an offence under Section 302 IPC alleging that the accused has committed murder of Bukya Venkatram on 7.9.2002 at 21.00 hours by beating him with cart peg on his head. The brief facts of the case are that on 7.9.2002 at 22.00 hours the complainant Maloth Ramesh, resident of Battapoor Thanda of Morthad Mandal came to Morthad Police Station and lodged a complaint stating that on 7.9.2002 at 21.00 hours all the Thanda people gathered at Battapoor thanda and conducted meeting in connection with installation of Ganesh Idol in the thanda. In that meeting Muda Gangaram and Bukya Venkatram quarrelled with each other regarding the selection of place for installation of Ganesh idol. After intervention of the thanda elders, the complainant and the above persons went their homes. But the Mudu Gangaram again followed the Bukya Venkatram along with his brother Dayanand and beat the Venkatram with cart peg on his head. Due to which the Venkatram fell down by oozing blood from his head and requested for legal action. On receipt of the complaint, P.W.4 has registered a case in Crime No.59 of 2002 under Section324 IPC initially and took up the investigation. During the course of investigation the police examined and recorded the statements and sent the injured to Government Civil Hospital, Armoor for treatment and conducted the scene of offence panchanama. On receipt of death information of the injured, the Circle Inspector of Police, Bheemgal took up the further investigation and altered the Section of law to Section 302 IPC and examined further witnesses and got conducted the autopsy over the dead body of the deceased and after conducting inquest in the presence of the mediators in the Government Civil Hospital, Armoor. On 11.9.2002, the Circle Inspector of Police has received information that the accused was at his in-laws house at Santosh Nagar thanda and immediately the Inspector of Police rushed the said place and arrested the accused at 8.30 hours and brought him to Morthada police station and recorded his confessional statement and seized the cart peg at his instance from the agricultural fields and he was remanded to judicial custody. The investigation discloses that on 7.9.2002 at 22.00 hours all the thanda people gathered at Battapoor thanda and conducted meeting in connection with installation of Ganesh Idols in the thanda. In that meeting Mudu Gangaram and Bukya Venkatram quarrelled with each other regarding the selection of lace for installation of Ganesh Idols. Thereby Bukya Venkatram along with his brother Dayanad beat the Venkatram with cart peg on his head and due to which he fell down and which resulted his death. Hence, he was prosecuted for the offence under Section 302 IPC. The learned IV Additional District & Sessions Judge has framed the charge under Section 302 IPC against the accused and the accused pleaded not guilty for the said charge. In order to establish the said charge, the prosecution has examined P.Ws.1 to 13 and got marked Exs.P.1 to 15 and Mos. 1 to 4. The lower court by taking into consideration of both oral and documentary evidence found the accused guilty of the offence under Section 302 Part-II IPC and convicted and sentenced him to under go rigorous imprisonment for a period of five years. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point that arises for consideration is whether the prosecution is able to establish the offence under Section 304 Part-II IPC against the accused beyond reasonable doubt? The learned counsel for the appellant has pleaded that the evidence of P.Ws.1 to 6 is inconsistent with each other with regard to the occurrence of the incident and the evidence of Doctor is not supporting the overt acts attributed by P.Ws.1 to 6 to the accused and the weapons said to be used by the accused is different from the weapon that was seized at the instance of the accused by the investigating officer. As such the accused is entitled to the benefit of doubt. The learned Public Prosecutor, on the other hand, has pleaded that the P.Ws.1 to 6 have categorically stated about the overt acts of the accused in causing injuries to the deceased and the motive for causing injuries is also established by the prosecution from the evidence of P.Ws.1 to 6 and the injuries found on the dead body are correspondent to the overt acts attributed by the P.Ws.1 to 6, as none of the witnesses has spoken that the accused hit on the back side of the head of the deceased and if there are any minor discrepancies in the evidence of P.Ws.1 to 6 it is not fatal to the case of the prosecution. The case of the prosecution is that on 7.9.2002 at 21.00 hours all the Thanda people gathered at Battappor thanda and conducted meeting in connection with installation of Ganesh Idols in the thanda. In the said meeting, the accused and the deceased Bukya Venkatram quarrelled with each with regard to the selection of place for installation of Ganesh Idol. After intervening by the thanda elders, Maloth Deshai and others persons, they were sent away from that place, but the accused followed the deceased along with his brother Dayanand and beat the deceased with cart peg on his head. Due to which the deceased fell down by oozing blood from his head and immediately he was shifted to Government Civil Hospital, Armoor for treatment and from there he was shifted to Government Hospital, Nizamabad and from Nizamabad the deceased was shifted to Hyderabad and when the deceased was taking to Hyderabad he died on the way and brought back the dead body to the Bheemgal Police station. The accused was arrested on 11.9.2002 and at his instance, the weapon used by him in the commission of the offence was recovered and he was charge sheeted for the offence under Section 302 IPC. P.W.1 is the complainant and he has stated that about one and half years ago in his village before the house of on Narayana the accused caught hold the collar of the deceased with regard to dispute to install idol of Ganesh in old place as per the contest of the deceased and the accused contested to install in a new place. Where he intervened and separated the accused and the deceased. The accused picked the stick (cart peg) from the bullock cart and beat the deceased on his head. Immediately, he went to the police station and gave a complaint to the police. Then he took the deceased to the hospital at Armoor where the doctor advised him to take the deceased to Nizamabad. Where at Nizamabad, doctor referred the deceased to Hyderabad. While proceeding to Hyderabad the deceased died at Thoopran. At the time of incident, Maloth Ravi, Heerbai, Bhukya Sridhar, Bhukya Ramesh, Bhukya Siran were present. They took the deceased to Hyderabad where the doctor declared dead and they brought the deceased to their village. Where the police conducted inquest. P.Ws.2 to 6 were said to be the eye witnesses to the incident has also supported the version of the prosecution, with regard to quarrel taking place between the accused and deceased with regard to installation of Ganesh Idol and thereafter they disbursed from the place and while going to his house the accused followed the deceased and hit on his head with a cart peg. Due to which the deceased sustained bleeding injury and fell down and immediately he was shifted to Armoor Government Civil Hospital and from there he was shifted to Government Hospital, Nizamabad and from there shifted to Hyderabad and on the way he died and the Doctors at Hyderabad declared the deceased as dead and as such they brought the dead body of the deceased to their village. The learned counsel for the appellant has pleaded that the evidence of P.Ws.1 to 6 is inconsistent with each other. With regard to occurrence of the incident, P.Ws.1 to 6 have specifically stated about the overt acts of the accused of hitting the deceased with cart peg on his head. According to them, the incident has taken place prior to Vinayaka Chavithi in the meeting held with regard to installation of Ganesh Idols, P.Ws.1 to 6 have given different dates of occurrence prior to the date of Vinayaka Chavithi. Admittedly all the witnesses are Thanda people and they are all illiterates and they are mentioning different dates before Vinayaka Chavithi is not fatal to the case of the prosecution and it cannot be treated a contradiction in the evidence of P.Ws.1 to 6. They all specifically stated in the meeting for installation of Ganesh Idols a quarrel took place between the accused and the deceased with regard to the place of installation of Ganesh Idols and thereafter the accused followed the deceased and hit the deceased with a cart peg on his head. The said fact could not be disturbed in the cross-examination of P.Ws.1 to 6. With regard to taking him to the hospital after the incident, the evidence of P.Ws.1 and others established the same. P.W.12 is the Doctor who conducted autopsy over the dead body of the deceased and found the following external injuries: 1. Lacerated sutured wound on left side of fore head measuring about 6 cm., in length (am). 2. Fracture of frontal bone on left side. 3. Haematoma beneath the fracture area i.e., left side of frontal area of brain. 4. Contusion haemorrhages on right side of frontal lobe of brain. According to the Doctor, the said injuries are anti-mortem in nature. As the Doctor has found a lacerated suture on the left side of the head, the appellant’s counsel has pleaded that as P.Ws. 1 to 6 have stated that the accused came from behind and hit on the head of the deceased with cart peg and the injury ought to have been sustained by the deceased on the back side of the head and as such the injuries found on the dead body of the deceased is not supporting the evidence of P.Ws.1 to 6. The said plea was taken by the defence counsel even before the lower court and the lower court has categorically observed that none of the witnesses spoke that the accused hit the deceased with cart peg on the back side of the head but they only stated that the accused hit on the head of the deceased. Therefore, it cannot be said that the injury found on the dead body is not caused by the accused. Even in the cross-examination of the P.Ws.1 to 6, they categorically stated that the accused hit on the head of the deceased but not on back side of the head. Therefore, the contention of the learned counsel for the appellant with regard to causing of injury to the deceased cannot be accepted. The next contention raised by the learned counsel for the appellant is that the weapon used in commission of offence according to P.Ws.1 to 6 is a cart peg but whereas the Investigating Officer seized a stick at the instance of the accused. P.W.13 is the Investigating Officer and according to him on 11.9.1994 at 8.30 a.m he arrested the accused at Santoshnagar and brought the accused and interrogated in the presence of P.W.10 and Gangaram and in pursuance of the confession, he along with accused and panchas went to a land of Mudu Serman at Battapoor Thanda village and recovered the cart peg M.O.4. But whereas panch witness P.W.10 has stated about the accused confessing about the offence and he was taken to fields of Serman and the accused produced a stick used in the commission of offence. Police seized the M.O.4. Ex.P.12 is recovery Panchanama in which it was categorically stated that the accused took them to filed of Mood Serman, from where the accused brought a cart peg by the side of bund in the filed and by showing he told that with the said cart peg was used in the commission of offence. Therefore, from the evidence of the investigation officer P.W.12 and from the recitals of Ex.P.12, it is clear that the weapon used by the accused in commission of offence seized by them is a cart peg and not a stick. But P.W.10 who is an illiterate might have stated that it is a stick, but he has given a description in the cross-examination. Therefore, there is no contradiction with regard to the seizure of the weapon at the instance of the accused. All the witnesses P.Ws.1 to 6 have categorically stated that the accused used cart peg in hitting on the head of the deceased. With regard to finding of blood stains on M.O.4, P.W.10 has stated that in his cross-examination that M.O.4 contains blood stains and he does not know whether there was any mention about blood stains on M.O.4. In Ex.P.12 it was mentioned that M.O.4 does not contain any blood stains. But it contains read colour at one edge. The Investigating Officer P.W.13 has stated that he has sent the M.Os.1 to 4 to FSL through S.D.P.O., Armoor and he has received a report from F.S.L. The said plea was also raised before the lower court and the lower court has discussed about the finding of blood stains on M.O.4 and that it was seized stating that the offence took place in the year 2002 and M.O.4 was marked on 17.3.2004. Therefore, there is every possibility of clearing of the blood stains cannot be ruled out by the date of examination of P.W.10. Therefore, the lower court has rightly come to the conclusion that the accused has beat the deceased without an intention to cause his death but knowing fully well that the said hit will cause death of the deceased and thereby rightly convicted the accused for the offence under Section 304 Part-II IPC and rightly sentenced rigorous imprisonment for five years and the said conviction and sentence does not warrant to be interfered by this Court. Hence, the appeal is dismissed confirming the conviction and sentence passed by the IV Additional District & Sessions Judge, (Fast Track Court), Nizamabad in S.C.No.45 of 2003 dated 07.09.2004. _____________________ P.DURGA PRASADJ. Date:11.02.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2242 of 2004 Date:11.02.2011 Gk.