THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No. 1426/2007 Dt.27-6-2011 1. Yedida Vijayakumar @ Yerrodu and another ..Appellants/Accused V. The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., at Hyderabad. ..Respondent/complainant The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No. 1426/2007 JUDGMENT (per the Honourable Justice RAJA ELANGO) This appeal under Section 374(2) of the Code of Criminal Procedure, 1973, is directed against the judgment in S.C. No. 206/2006 on the file of Principal Sessions Judge, East Godavari at Rajahmundry, whereby and whereunder the accused were found guilty for the offence under Section 302 r/w 34 IPC and sentenced to undergo imprisonment for life and also to pay a fine of Rs.5000/-, in default to undergo simple imprisonment for a period of three months each. The substance of the charge framed against A-1 and A-2 is that on 6-7-2004 at about 11-30 AM at the house of Amudala Yerakamma situated at Door No.44-5-13, Madansingpeta of Rajahmundry, both the accused in furtherance of their common intention committed murder of Bommi Suresh (hereinafter referred to as “the deceased”) and thereby committed the offence punishable under Sec. 302 r/w 34 IPC. The prosecution story, as unfolded during the trial, which led to the conviction of the appellants/A-1 and A-2, is as follows: The accused 1 and 2 are brothers. The deceased used to live by selling beef at the house of Amudala Yerakamma in Madansinghpet of Rajahmundry. The accused 1 and 2 are also working in the same beef shop along with the deceased. Prior to the date of offence, Yerakamma’s foster son Ethakota Suri Babu got himself separated from Yerakamma and started a new beef shop near Ramakrishna cinema theatre in RTC complex road. The deceased stopped working in the shop of Yerakamma and started working in the shop of Suri Babu. After some months, the deceased was ousted form the shop of Suri Babu on the ground of creating differences between Yerakamma and Suri Babu. The deceased mistook the accused 1 and 2 as the persons responsible for his ousting. The deceased developed a grudge against the accused 1 and 2 and used to warn them to kill. As it has become a routine threat from the deceased, A-1 and A-2 with the common intention planned to kill the deceased before the deceased killing them. On 6-7-2004 at about 11-20 AM, the deceased came to the beef shop of Yerakamma by Bajaj Pulsar motor cycle, and scolded A-1 and A-2 by sitting on motor cycle. The first accused armed with knife and the second accused armed with iron rod attacked the deceased and in furtherance of their common intention the first accused cut away the throat of the deceased with knife and the second accused violently beat on head of the deceased with iron rod, and the deceased died on the spot on the motor cycle. On receiving information about the altercation, P.W.1 went to the scene of offence and found the deceased lying in a pool of blood. When she enquired Suri Babu, he narrated the incident to her. Thereafter, P.W.1 went to the police station and gave a written report covered under Ex.P-1 to P.W.13-S.I. of Police, I Town Police Station, Rajahmundry, who registered the same as a case in Cr.No.267/2004 under Section 302 r/w 34 IPC. Ex.P-27 is the First Information Report. On registration of the crime, P.W.13 informed the same to P.W.14- Inspector of Police. On colleting a copy of Ex.P-27, P.W.14 went to the scene of offence and prepared a rough sketch covered under Ex.P-28. He got the scene of offence and the body of the deceased photographed through P.W.11. He prepared observation report covered under Ex.P-6 in the presence of P.W.9. He seized blood stained cement pieces and controlled cement pipes. He examined P.Ws.1 to 4, 11 and others at the scene of offence and recorded their statements. He conducted inquest over the body of the deceased. Ex.P-7 is the inquest report. After conducting inquest, P.W.14 sent the dead body for postmortem examination. P.W.12-Civil Assistant Surgeon conducted autopsy over the dead body of the deceased and issued post-mortem report covered under Ex.P-26 opining that the cause of the death was due to shock and hemorrhage due to injury to wind pipe esophagus and vital vessels on front of neck both sides. P.W.14 arrested the accused near Gokavaram bus stand in the presence of P.W.10. In pursuance of the confession made by the accused, P.W.14 recovered knife-M.O.4 and iron rod- M.O.5 under a cover of seizure panchanama-Ex.P-11. P.W.14 examined P.Ws.5 to 7 and recorded their statements. After completion of investigation and on receiving relevant reports, P.W.15 filed the charge sheet before the II Additional Judicial Magistrate of First Class, Rajahmundry. Learned Magistrate took the charge-sheet on file as PRC No.37/2004 and committed the case to the Sessions Division of East Godavari District as the offence is exclusively triable by Court of Sessions. The learned Sessions Judge took the case on file as SC No.206/2006. The learned Sessions Judge on hearing the prosecution and the accused, framed a single charge for the offence punishable under Section 302 r/w 34 IPC against the accused, read over and explained the same to the accused in Telugu, for which the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offence for which he stood charged, the prosecution examined 15 witnesses and proved 31 documents and exhibited 7 material objects. After closure of the prosecution side evidence, the accused was examined under Sec. 313 Cr.P.C., and he denied the incriminating material appearing against him in the evidence of prosecution witnesses. On behalf of the defence, no evidence, either oral or documentary, was adduced. P.W.1 is the mother of the deceased. P.W.2 is the nephew of the deceased. P.W.1 deposed that three years ago at about 10 AM the deceased left their house when two persons came for him and after one hour she received information about A-1 and A-2 quarrelling with the deceased. Thereupon, she and her grand son Satish went to that place near Yerakkam’s house and found the deceased lying in a pool of blood. She got prepared the report and gave it to the police. P.W.2 who is the nephew of the deceased deposed that on 6-7-2004 at about 11 AM on information, he and P.W.1 went to the place of offence near Yerakamma’s house and saw the deceased lying dead. Thereafter, P.W.1 went to Satish Babu and enquired him as to what happened. Satish Babu narrated the incident to him. P.W.5 deposed that when he went to the house of Erakamma for purchasing beef, the deceased was abusing A-1 and A-2. On hearing cries, he came out of the beef shop and in his presence A-2 hit the deceased on his head with iron rod and A-1 cut the throat of the deceased with a knife. P.W.6 has also deposed on the same lines as P.W.5 elucidating that A-2 hit the deceased with iron rod on the back of his head, due to which the deceased fell on the vehicle which is like a scooter and A-1 caught hold of the head of the deceased and cut his throat with a knife. P.W.13 is the then Sub-Inspector of Police, I Town (Law and Order) Police Station, Rajahmundry. He deposed that on 6-7-2004 at about 12-30 PM, P.W.1 came to the police station and presented Ex.P-1-written report to him and he registered the same as a case in Cr.No.267/2004 under Sec.302 r/w 34 IPC and issued First Information Report covered under Ex.P-27.P.W.14 is the then Inspector of Police, Rajahmundry town circle. He took up investigation immediately after registration of Ex.P- 27. He went to the scene of offence and observed the same in the presence of mediators including P.W.9 under the cover of Ex.P-6- observation report. He prepared Ex.P-28-rough sketch of the scene of offence. P.W.14 further stated that the scene of offence is located on cement road opposite to the house of Amudala Yerakamma. He got the scene of offence and dead body photographed with the help of P.W.11-photographer. P.W.14 conducted inquest over the dead body of the deceased in the presence of panchayatdars including P.W.9. Ex.P-7 is the inquest report. He collected blood stained cement pieces and control cement pieces from the scene of offence under a cover of panchanama-Ex.P- 6. P.W.6, who is the panchayatdar to the seizure panchanama covered under Ex.P-6 and inquest report covered under Ex.P-7 deposed that at the time of inquest they came to a conclusion that accused committed the murder of the deceased. After conduct of inquest, P.W.14 sent the dead body of the deceased to the Government Hospital, Rajahmundry for postmortem examination. P.W.12 is the Civil Assistant Surgeon, District Hospital, Rajahmundry. She conducted autopsy on the dead body of the deceased on 7-7-2004 from 1 PM to 3 PM and issued post-mortem certification covered under Ex.P-26. P.W.12 found the following external injuries: 1. Incised injury of 7” x 3” x bone deep present on the neck, in front at the level of C6 vertebra severing the muscles, vessels, nerves, trachea and oesophagus at the level of upper oesophageal sphincter, covered with blood clots. Margins regular, transverse, taping on the left side, spindle shaped. 2. Incised injury of 1” x ½” x skin deep present on the dorsum of right wrist region, transverse, margins regular, covered with blood clots present, spindle shaped. 3. Incised injury of ½” x ½” bone deep, transverse, with regular margins present on the left occipital region on exploring the wound shows blood clots in the layers of scalp and hair line fracture of occipital bone in that region. 4.Superficial thermal burns injury present on the posterior aspect of left ankle with skin pealed off with charring with congested margins of size 2” x 2”. P.W.12 also found the following internal injuries: 1. Scalp: Scalp hair matted with blood clots. Incised 2. Skull injury of ½” x ½” x bone deep present on left occipital region with regular margins, transverse, blood clots present in the layers of scalp, hair line fracture of occipital bone present. 3. Brain and meninges and cerebral vessels: Meninges covered with Peticheal hemorrhages. Brain-intact, pale. Cut Section-pallor. 4. Mouth, teeth, tongue and pharynx: Mouth open. Teeth exposed. 5. Neck, pharynx thyroid, hyoid and other neck structures: Incised injury of 7” x 3” x bone deep present in front of neck at the level of C6 vertebra severing the muscles, vessels, nerves, trachea and oesophagus at the level of upper oesophageal sphincter, covered with blood clots, margins, regular, transverse, taping on left side spindle shaped. P.W.12 deposed that the injuries shown in Ex.P-26 are sufficient to cause death of the person in ordinary course of nature and that injury No.1 may be possible with a weapon like M.O.4-knife and injury No.3 is possible with a weapon like M.O.5-iron rod. She opined that the approximate time of death is 24 to 30 hours prior to postmortem examination and the cause of death was shock and hemorrhage due to injury to wind pipe, oesophagus and vital vessels on front of neck both sides. In the cross-examination P.W.12 deposed that injury No.3 may be possible by a fall from a great height topsy-turvy and not injury Nos.1 and 2. The learned Sessions Judge, after evaluating the evidence adduced by the prosecution, and accepting the evidence of P.W.5 and 6 found A-1 and A-2 guilty of the offence punishable under Section 302 r/w 34 IPC and accordingly convicted and sentenced them as aforementioned. Challenging the conviction and sentence, A- 1 and A-2 preferred the present appeal. Heard the learned counsel appearing for the appellants/A-1 and A-2 as well as the learned Additional Public Prosecutor. Admittedly, in the present case, P.W.1, who is the mother of the deceased and who set the criminal law into motion, is not an eye witness to the occurrence. She lodged a complaint on the basis of the information received from one Suri Babu. Suri Babu was not examined in the court since he died prior to the commencement of the trial. P.W.2 is also related to the deceased. He is also not an eye witness to the occurrence. P.W.3 has not supported the case of the prosecution and turned hostile. P.W.4 is also not an eye-witness to the occurrence. He stated that after hearing cries, he came out from his house and saw the body of the deceased at the place of occurrence. P.Ws.5 and 6 are eye-witnesses to the occurrence. It is the evidence of P.W.5 that the deceased was abusing A-1 and A-2 when he went to the house of Erakamma for purchasing beef at Madansinghpeta. On hearing the cries, he came out of the beef shop. In his presence, A-2 hit the deceased on head with iron rod and A-1 cut the throat of the deceased with a knife. P.W.6 also deposed on the same lines. P.W.7 also did not support the case of the prosecution and turned hostile. Other witnesses are official witnesses and witnesses to preparation of observation mahazar and rough sketch. Learned Sessions Judge mainly relied on the evidence of P.Ws.5 and 6, which was corroborated by the evidence of p.w.12- Doctor. As stated earlier, P.W.12 has conducted autopsy and recorded the injuries as stated above. The injury caused by A-1 is fatal and A-2 caused the injury on the head of the deceased. The evidence adduced by the prosecution clearly establishes the presence of the accused and the manner in which attack over the deceased. There is nothing on record to disbelieve the evidence of P.Ws.5 and 6 and the evidence of P.W.12-Doctor. At the same time, we have to consider whether the acts of the accused in the present facts and circumstances would attract an offence punishable under Section 302 IPC. The following circumstances are necessary to be considered: 1. The deceased went to the place of occurrence where the accused are residing. 2. The deceased started quarrelling with the accused and abused them. 3. The weapon naturally available in the beef shop was used in the commission of offence. The said circumstances clearly establish that the accused have no pre-meditation to commit the crime as alleged by the prosecution. Even though they have intention to cause death by way of causing injury at the place of occurrence, there is no plan or idea to commit the crime as alleged by the prosecution. Entire things happened in a spur of moment, but at the same time the manner in which the injuries caused clearly indicates the intention and also knowledge that the injuries will cause death. In such circumstances, the acts of the accused squarely fall under section 304 Part-I IPC, which runs as follows: “Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;” For the foregoing reasons, the role attributed to the appellants/A-1 and A-2 would, in our view, attract the provisions of Section 304 Part I IPC and not Section 302 r/w Section 34 IPC. The appeal as far as the appellants’ conviction under Section 302 read with Section 34 IPC must, therefore, succeed and their conviction must be altered to one under Section 304 Part I read with Section 34 IPC. The appeal is, therefore, allowed to the extent that the conviction of both the appellants under Section 302 read with Section 34 IPC is set aside and they are convicted under Section 304 Part I r/w Section 34 IPC and sentenced to suffer rigorous imprisonment for a period of ten (10) years. The sentence of fine remains unchanged. --------------------- A.GOPAL REDDY,J ----------------- RAJA ELANGO,J DT. 27-6-2011 Kmr