HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2307 of 2004 JUDGMENT: The appellant/accused was convicted by the lower Court under Section 304 Part II IPC and was sentenced to rigorous imprisonment of ﬁve years and ﬁne of Rs.500/-. Questioning the same, the accused filed this appeal. 2. The accused is wife of the deceased. They have one daughter and one son. By the date of oﬀence on 23.03.1999, son of the accused was aged 7 years. It is alleged that the deceased was suspecting ﬁdelity of the accused and was picking up quarrel with her always and that on the date of oﬀence also, during evening, there was quarrel between the accused and the deceased, in which quarrel, the deceased beat the accused as the accused went to washing place (revu) in the tank contrary to instructions of the deceased. It is alleged that the deceased threatened to kill the accused in that night and kept a knife by his side and slept in the room in his house. It is further alleged that at about 10.00 P.M., when the deceased was sleeping, the accused picked up M.O.11 iron pipe and hit the deceased indiscriminately with iron pipe causing his death. Plea of the accused is one of total denial and not guilty. Though the lower Court framed charge under Section 302 IPC, after trial, found the accused guilty for lesser oﬀence under Section 304 Part II IPC. 3. It is contended by the appellants’ counsel that there is discrepancy in seizure of M.O.11 crime weapon and arrest of the accused and that PW.10 being Sub-Inspector of Police is not competent to take up investigation of this grave offence. Even though it is stated that A.P.Police Manual prescribes investigation by a Police Officer of the rank of Inspector of Police and above as the person who can competently investigate into a grave oﬀence like the one under Section 302 IPC, there is no legal bar under any law for a Sub- Inspector of Police to investigate into a case involving an oﬀence under Section 302 IPC. A.P.Police Manual has no legal basis and it is only internal departmental instructions among the persons working in the Police Department. 4. PW.2 is mother of the deceased. She lives in the same house as that of the accused and the deceased. PW.3 is co-sister-in-law of the accused. PW.3 along with her husband resides in the adjacent house of the accused and the deceased. PW.4 is elder sister of the deceased. Her house and house of the accused are intervened by two houses. PW.5 is a neighbour. PW.6 is residing in the house opposite to house of the accused and the deceased. PW.7 is residing in a house which is separated by two houses from the house of the accused and the deceased. They speak about the quarrel which took place between the accused and the deceased during evening hours on that day. It is their evidence that at about 10.00 P.M. on the date of oﬀence, they heard cries of the deceased from room of the house which was bolted inside and that when PW.2 and others rushed there and knocked door of that room, it was not opened and that thereupon, PW.2 went to the houses of neighbours and brought all of them to the house and that inspite of all of them tapping the door it was not opened and that PW.4 opened latch of the house with the help of a sickle from outside and that after entering into the room, they found the deceased with bleeding injuries and the accused along with her son sitting by the side of wall inside the room. The lower Court from this evidence of the above prosecution witnesses came to the conclusion that it was the accused who inﬂicted blows on the deceased causing his death. Except for the accused, there was no other possibility for any other person to inﬂict the injuries on the deceased. 5. PW.9 who is the then Civil Assistant Surgeon, Government Hospital, Nidadavole who conducted post-mortem examination on dead body of the deceased on the next day found the following external injuries: 1. 4” x 1” depth lacerated injury obliquely on the right side of the fore head 3” above the left medial end of the eyebrow, to lateral end of the left eyebrow clotted blood present. 2. 5” x 1” depth lacerated injury 1” above the right eye brow to the right Eorna parietal region of the scalp 4” above the right mastoid region. Clotted blood present. 3. 3” x 1” depth lacerated injury Horizontally on the center of the both parietal bone region of the scalp. Clotted blood present. 4. 3” x ½ “ depth lacerated injury on the right side of the occipital region vertically 2” above and posterior to right mastoid region. Clotted blood present. 5. 2” x ½ “ depth lacerated injury obliquely on the right side of the chin started from 1” below the center of the lower lip. 6. 1 ½ “ x ½” depth lacerated injury horizontally on the lateral angle of the left eyebrow. Clotted blood present.” On internal examination, PW.9 found compound fracture of occipital bone and conjuction of bone with presence of clotted blood in the right frontal cerebral hemisphere. PW.9 opined that the deceased died of shock and hemorrhage due to injury to vital organs like brain by head injuries. Ex.P.5 is post-mortem examination certiﬁcate issued by him to that effect. He says that the injuries are possible with M.O.11 weapon/iron pipe. In cross-examination, P.W.9 deposed that the above injuries might be possible if head of the deceased is dashed against wall several times with several directions. 6. It is contended by the appellants’ counsel that evidence of the prosecution witnesses reveal that by the time PW.4 opened door of the room by manipulating the latch with a sickle, the deceased was struggling for life and that inspite of it, no steps were taken by any of them to save life of the deceased. According to PW.9, the deceased might have died 12 to 18 hours prior to post- mortem examination. It shows that the deceased died immediately after sustaining injuries. Inspite of the deceased struggling for life by the time door of that room was opened, he died immediately thereafter. Therefore no steps could have been taken to save his life. 7. PW.1 who is the then Village Administrative Oﬃcer of Purushothapalli Group of villages gave Ex.P.1 report to the police after receiving information of the oﬀence through the village servant and after going to the spot and verifying the same. By the time of Ex.P.1, the deceased was no more. Subsequently during investigation, the police observed scene of the oﬀence on 24.03.1999 under the cover of Ex.P.2 scene observation report. It is evidence of PW.1 that at the time of scene observation, the police recovered iron pipe, blood stained earth and blood stained portion of the wall, mat, mattress and two pillows from the scene under the cover of Ex.P.2. But, Ex.P.2 does not read that M.O.11 iron pipe was also seized thereunder. According to the prosecution, M.O.11 iron pipe was seized at the instance of the accused after her arrest under the cover of Ex.P.4 mediators report. PW.1 was one of the mediators in Ex.P.4 also. It is his evidence that on 26.03.1999 at 5.00 P.M. the accused was arrested at her house and that on interrogation she produced M.O.11 iron pipe from eves of cattle shed. PW.1 gave the said particulars after seeing Ex.P.4 mediators report. Even though the accused was available at the scene after the oﬀence and after the police came to the scene, the police have chosen to show her arrest only on 26.03.1999. Prosecution evidence further reveals that the accused accompanied dead body of the deceased in the car to the hospital to which village it was taken for post-mortem examination. After conclusion of major part of investigation, PW.10 has preferred to arrest the accused on 26.03.1999 at 5.00 P.M. There was no hurry for PW.10 to arrest the accused, as she was very much available at the scene even after the offence. There is no improbability on this aspect. Mere slip in PW.1’s evidence regarding seizure of M.O.11 iron pipe at the time of scene observation under Ex.P.2, cannot falsify the entire prosecution case. If really M.O.11 iron pipe was also seized at the time of scene observation, nothing prevented the police and the mediators to mention the said fact in Ex.P.2 scene observation report. 8. It is contended by the appellant’s counsel that in the incident which took place between the accused and the deceased during that evening, the deceased threatened to kill the accused and that therefore as a matter of self-defence the deceased was killed by the accused. It is nobody’s case that the deceased made any attempts at the time of the oﬀence at about 10.00 P.M. to attack the accused inside the room. If it happened really, then it is for the accused to go into witness box and to speak to the said fact. But, the accused did not lead any evidence on that aspect. There are no indications in the entire evidence before the Court to show that the deceased made any attempt to attack the accused inside the room at about 10.00 P.M. No doubt, the accused was aﬀectionate towards the deceased as she was always attending on the deceased whenever he was hospitalized due to drinking or due to jaundice. Inspite of it, the deceased was harassed by the accused suspecting her ﬁdelity. He is stated to have threatened to kill the accused by night. Therefore the accused became frightened and preferred to attack the deceased with M.O.11 iron pipe and caused injuries due to which the deceased died. In those circumstances, the facts established on record do not clothe the accused with any right of private defence against the deceased at that point of time. In my opinion, the lower Court was highly lenient towards the accused in ﬁnding her guilty under Section 304 Part II IPC instead of Section 302 IPC. 9. Lastly, it is pleaded by the appellant’s counsel that as the matter now stands, both the accused and PW.2 compromised with each other and both of them are living together and are looking after welfare of two children of the deceased and that therefore permission may be given for their compounding of the oﬀence. The oﬀence in this case was committed against the deceased who is no more. Now, the State has taken up the cause and is prosecuting the accused. Having regard to all the circumstances of the case, PW.2 alone is not competent to enter into any compromise with the accused in order to relieve her of the liability herein. I do not ﬁnd any circumstances to permit the accused and PW.2 to enter any compromise to compound the offence of killing the deceased in this case. 10. On considering the entire material on record, I ﬁnd no circumstances to come to a diﬀerent conclusion from that of the lower Court. 11. In the result, the appeal is dismissed. __________________________ SAMUDRALA GOVINDARAJULU,J Dt. 28th November, 2011. PNV