IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE 14TH DAY OF JUNE, TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1606 of 2006 Between: Kurisettti Sreenivasulu. … Appellant And The Inspector of Police, Piler Circle. … Respondent This Court made the following: HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1606 OF 2006 JUDGMENT: - (Per Hon’ble Sri Justice A.Gopal Reddy) The sole accused in Sessions Case No.168 of 2004 on the file of the Court of V Additional Sessions Judge, Tirupati, who faced the trial for the offences under Sections 354 and 304 of the Indian Penal Code, 1960 (for short, “IPC”), and who was convicted and sentenced for the said offences, to undergo Rigorous Imprisonment for a period of five years for the offence punishable under Section 354 IPC and also to pay a fine of Rs.500/- and to undergo imprisonment for life for the offence punishable under Section 302 IPC with fine with default clause, filed this appeal questioning the conviction and sentence recorded against him on 06.07.2005. The substance of the charge is that on 20.01.2004 at about 2 p.m., the accused beat the deceased on her head and at her house situated at Gollapalli Harijanawada and thereby caused her death. The case of the prosecution as unfolded during the course of trial, is briefly stated as under: - The deceased-Surya Geetha was the leader of ANTWA group and was living with her husband (P.W.1) and mother-in-law (L.W.7) by doing coolie work at her house. Accused is the son of Chittemma, who is the sister of L.W.7 and residing in the neighbouring house of the deceased, developed sexual lust over the deceased and harassed her to fulfil his lust, for which the deceased bluntly refused and informed the same to her husband and her in-laws. They informed the same to the parents of the accused who warned him, but there was no change in the attitude of the accused. The marriage of the accused was performed with one Munirajamma, but inspite of the same, he did not stop to harass the deceased. While so on 20.01.2004 at about 7 a.m., P.Ws.1 and 2 left their house to attend the coolie work and at about 9 a.m., when the deceased Geetha along with Mangamma (P.W.6) and B.Venkatarathnamma (P.W.7) are about to leave their house to go to Bhakarapet for attending ANTWA meeting, at that time, the accused took the keys from the deceased on the pretext of watching T.V. at her house. At about 2 p.m., on the same day after attending the meeting when the deceased and P.W.6 returned to the house, accused was found there, and when Mangamma went to her house for getting food in a plate, the accused asked Rs.2/- from the deceased for purchasing tablets to his headache. When the deceased went into kitchen for getting Rs.2/-, the accused bolted the door from inside and forced her to fulfil his lust and when she refused, he gagged her mouth and tried to throttle the neck, but the deceased tried to escape from the hands of the accused and shouted calling Mangamma. She rushed to the spot and started knocking the door calling the neighbours. The accused due to fear and as the deceased has not fulfilled his sexual lust, took the wooden plank and beat over the head of the deceased. When the deceased put her hand across the blow, she sustained blunt injury over left hand palm to elbow and the wooden plank was broken into pieces. Then the accused took stout stick available in the hall and beat thrice over left side of the head and ear of the deceased causing serious injuries. When the deceased fell unconscious with serious injuries and noticing the people gathering outside the house of the deceased, accused opened the door and absconded with a blood stained stick. Then the neighbours went to the house of deceased, tied her cloth to the head, brought her out of the house. In the meanwhile, her husband P.W.1 came to the spot and took the deceased to S.V.R.R.Hospital, Tirupati in a jeep and admitted in the said hospital. On receipt of the hospital intimation on the next day, on 21.01.2004, P.W.17, the Assistant Sub-Inspector of Police, Bhakarapet Police Station recorded the statement of the injured and registered a case in crime No.604 of 2004 under Sections 354 and 307 IPC and took up investigation. He seized the blood stained clothes and pieces of wooden planks under the cover of a mahazar. On 30.01.2004 he arrested the accused and seized the blood stained wooden stick under the cover of a mahazarnama in the presence of P.Ws.8 and 12. While the deceased was undergoing treatment, on 31.01.2004 she developed pain in abdomen and vomiting and she was operated by the General Surgeon on 03.02.2004. After the said operation, the deceased did not improve and expired on 04.02.2004 at 10.05 a.m. in the hospital. On receipt of the death intimation, section of law was altered from Sections 354 and 307 IPC to Sections 302 and 354 IPC. P.W.19, Inspector of Police took up further investigation, conducted the inquest over the dead body and sent the dead body for post mortem examination. P.W.14, the Associate Professor of S.V.Medical College, Tirupati, who conducted post mortem on the dead body of the deceased, opined that the deceased died as a consequent of peritonitis associated with head injury. After completion of the investigation, P.W.19 laid the charge sheet for the offences punishable under Sections 354 and 302 IPC before the Judicial Magistrate of First Class, Piler. On committal, the learned Sessions Judge, framed charge under Sections 354 and 302 IPC and the same was read over to the accused. Accused denied the said charge and claimed to be tried. In order to prove the case of the prosecution, prosecution examined P.Ws.1 to 19 and marked Exs.P1 to P16, besides marking M.Os.1 to 7. No evidence was adduced by the accused in his defence. The learned Sessions Judge after considering the oral and documentary evidence, disbelieved the oral dying declaration recorded by P.W.17 under Ex.P12, but relied upon the evidence of P.Ws.2 and 10 who reached to the spot immediately and saw the accused coming out of the house with a stick, convicted the accused and sentenced him to undergo imprisonment as aforementioned. Questioning the same, the appellant/accused filed the present appeal. Sri C.Mastan Naidu, learned counsel for the appellant contends that the entire evidence of the prosecution rests upon the oral testimony of P.Ws.2 and 10 coupled with the medical evidence. When P.W.2 does not refer to the presence of P.W.10 at the time they gathered in front of the house of the deceased and similarly, P.W.10 does not refer to the presence of P.W.2 when several people gathered at the house of the deceased at 2 p.m.; that when the deceased was taken to Bhakarapet police station where the crime was registered, no report as such was given ether by P.W.1 or by P.Ws.2 or 10 implicating the accused for the offences and that when the statement of the deceased Ex.P12, on which basis a crime was registered, has been disbelieved by the trial court, the appellant/accused cannot be convicted for the offence punishable under Section 302 IPC. Even P.W.16-the Doctor who treated the deceased in the hospital deposed that the deceased died due to septisemic shock as she did not improve after the operation, which resulted in cardio respiratory failure and in the absence of any connection of the head injury with the development of septisemic shock, the accused cannot be convicted for the offence punishable under Section 302 IPC. Therefore, the accused is entitled for benefit of doubt. He further alternatively contended that when the prosecution failed to establish the cause of death of the deceased connecting with the head injury, the accused cannot be convicted for the offence under Section 302 IPC, but at the most he can be convicted for an offence with a lesser punishment for the injuries so caused, if the evidence of the prosecution witnesses is so believed. Learned Additional Public Prosecutor sought to sustain the conviction and sentence recorded by the trial court contending that P.W.16-doctor clearly stated that the deceased died due to duodenal perforation which is due to the sudden head injury. When P.Ws.2 and 10, who are not enemical to the accused, clearly stated that it is the accused who beat the deceased with wooden plank and later with a wooden stick, the trial Court rightly convicted the accused for the offence under Section 302 IPC and therefore, the impugned judgment needs no interference. In view of the above rival submissions, the point that arises for consideration is, whether the prosecution is able to bring home the guilt of the accused beyond all reasonable doubt for the offences charged? POINT:- P.W.1, the husband of the deceased, who is the de-facto complainant, deposed that his wife was doing tailoring work and was a member of ANTWA group and the accused is the son of his junior maternal aunt. On 20.01.2004 he left for his tractor coolie work in the morning itself and returned home at 02.30 p.m. By the time he reached his house, there was large gathering of the villagers and they were knocking his doors. At the same time, the villagers brought out his wife, who sustained bleeding injuries on her head and there were bloodstains all over the body. When he made enquiries with one Mangamma (P.W.6) who is his sister-in-law, she stated that the accused beat with a wooden plank and also with a stick to the deceased and caused injuries and ran away with the stick. She stated that on knocking the door, the accused came out from the house and ran away from that place. He brought a tractor. Himself, P.W.6, P.W.8, P.W.2 and P.W.3 took away the injured to Bhakarapeta and at that place they engaged a Jeep and took her to Tirupati Hospital for treatment and got admitted her in Tirupati hospital and at that time she was unconscious. At 10.30 a.m., on the next day she got consciousness and at that time police came there. He further deposed that the accused had an eye on his wife and harassing her for the last one year. The accused did not lead the marital life with his wife as he was having mind on his wife. As his wife was not yielded to the desires of the accused, he beat her. In the cross-examination, he admitted that he had not personally witnessed the incident, but one P.W.6 told him about the incident. He denied the suggestion that there was no talking terms between him and the accused for the last three years. P.W.2 who is a neighbour deposed that P.W.1 used to tell him that the accused had sexual desire over his wife and harassing his wife. On 20.01.2004 while he was taking meals in his house, he heard the cries of P.W.6 and he went to the house of P.W.1. One Venkataiah (P.W.8) and Adinarayana (P.W.3) also followed him to the house of P.W.1. P.Ws.6 and 3 and some other villagers gathered there and knocked the doors of P.W.1 stating that the accused was beating the deceased. After some time accused opened the door and ran away with a stick from the house of P.W.1 and then they took the injured Geetha to Ruiya Hospital, Tirupati. First they took her in a tractor to Bhakarapeta and they engaged a jeep at Bhakarapeta and brought the injured to Tirupati. In the cross-examination, he admitted that he has not stated before police that on 20.01.2004 he returned from coolie work and when he was taking meals in his house, he heard the cries of P.W.6 and then rushed to the house of P.W.1. By the time he went to the house of P.W.1, P.Ws.3 and 8 were already present. P.Ws.3, 4, 6, 7, 8, 9, 11 and 12 were declared hostile, as they have not supported the case of the prosecution. P.W.5, the mother of the deceased deposed that on the next day morning of the incident, she received information about the injuries caused to her daughter. She came over to Hospital, Tirupati and when she came to Hospital, his daughter was not in consciousness. At about 3 or 4 p.m., she regained consciousness and stated to her that on that day when she returned from meeting at about 2 p.m., and when she entered the house, the accused was present in the house and requested her to provide Rs.2.00 for enabling him to purchase tablets for headache. One Mangamma P.W.6 was also present there. She went to bring meals for both of them and when she went inside to bring the amount of Rs.2.00, the accused bolted the main doors of the house and tried to commit rape on her and when she refused, accused picked up a wooden plank and beat her and when the wooden plank was broken, the accused picked up a stick and beat on her left side of the head. In the cross-examination, she admitted that she was present when deceased regained consciousness at about 3.00 p.m. At that time P.W.1, herself, her husband and her son were also present in the hospital by the side of the deceased. Police have not examined her. Police have visited the hospital only after the death of the deceased. The deceased died 14 days after her admission into hospital. She does not remember whether she stated before police or not that she came to know the facts of the case through her daughter. P.W.10 who is the leader of ANTWA group and whose house is situated near to the house of the deceased, stated that on 20.01.2004 herself, deceased and others attended ANTWA group meeting at Bhakarapeta till 1.00 p.m. and returned to their village by 2 p.m. When she was proceeding to Bhakarapeta, she went to the house of Geetha and at that time the accused collected the house keys from Geetha stating that he would present in the house. After returning to their house at 2 p.m., she heard the cries of P.W.6, rushed to the house of the deceased and after opening the doors of the house of Geetha, the accused ran away from the house. But she has not stated specifically that the accused ran away with a stick in his hand. On the next day when she reached the hospital at 10.30 a.m., the deceased was conscious. When she questioned her how she received injuries, she stated that the accused beat her with wooden plank, when she refused for the sexual desire of the accused and also stated that the accused harassing her to quench his sexual lust for the last one year. In the cross-examination, she deposed that she talked with Geetha at the Hospital at about 10.30 a.m. and at that time her mother, grand parents, mother-in-law of the deceased and her husband were present. She has not given any report to the police even after coming to know of the beating of the deceased by the accused. P.W.11, who is the panch witness to the scene of observation, declared hostile and not supported the case of the prosecution. P.W.12, who is the panch witness to the seizure of the stick at the instance of the accused, also was declared as hostile. P.W.13 who is an inquest panchayatdar, deposed about the conducting of inquest over the dead body of the deceased Geetha on 05.02.2004. P.W.14, the associate professor who conducted the post mortem examination issued the post mortem certificate under Ex.P7 and found the following anti mortem injuries. 1. Sutured wound of 4 X 1 cms over left occupital area of scalp, in the shaven area of the scalp. 3 Intact black thread sutures present. 2. Sutured wound of 2 X 1 cms, over left temporal area of scalp, 1 cm black to left ear. 4 intact black thread sutures present. 3. Contusion of left temporal area of scalp, underneath the wound No.2 contusion of temporalis muscle present. Black in colour. 4. Sutured wound of 5 X 0.2 cms over back of pinna of left ear, with 2 intact black threat sutures. 5. Contusion of 7 X 5 cms over palm and back of left hand. Fracture of IV metal carpal bone present, with extravasation of blood into surrounding tissues, which is black in colour. 6. Contusion of 10 X 10 cms over frontal area of scalp, black in colour size. Abdomen: (Surgical Intervention) 1. Sutured wound of 20 X 2 cms, over front of abdomen, in midline 11 intact nylon thread sutures and 4 intact tube sutures (I.V.set) as stay sutures present. 2. Drainage wound of 3 X 2 cms, placed horizontally, over front of abdomen, 9 cm right to and 2 cms below the umbilicus. 3. Drainage wound of 2 X 1 cms, placed horizontally, 2 cm outer to the above wound. 4. Drainage wound of 3 X 2 cms, placed horizontally, over front of abdomen 11 c left to umbilicus. The cause of death according to him was consequent of peritonitis associated with head injury. P.W.15-the doctor, who examined the blood stains on the material objects found that the blood stains belong to AB Blood group under Ex.P8-F.S.L.Report and admitted in the cross-examination that there is no mention in F.S.L.Report that the blood stains found on material objects 1 to 3 belongs to the same person. P.W.16-the doctor who treated the deceased in the hospital found the following injuries: 1. A lacerated injury 5 cm X 2 cm on the left parietal region of the head. 2. A lacerated injury ‘C’ shaped on left temporal region of the head 5 cm X 3 cm in size. 3. A lacerated wound 3 cm X 2 cm over the left ear. 4. An abrasion over the left hand. He deposed that on the date of admission the deceased was unconscious and on 21.01.2004 she was irritable. On 31.01.2004 she developed pain in abdomen and vomiting and she was operated by the General Surgeon on 03.02.2004. The diagnosis was generalised peritonitis due to duodenal ulcer perforation on anterior surface of first part of duodenum. The operation done was exploratory laparotomy and perforation closure and thorough peritoneal toilet done and flank drains kept. Due to septisemic shock patient did not improve and she expired on 04.02.2004 at 10.05 a.m. in the hospital. The deceased died due to septisemic shock due to duodenal perforation which is due to severe head injury. In the cross-examination he admitted that in Ex.P10 the cause of death is noted as cardio respiratory failure is the end result of septisemic shock. As per Ex.P10, the deceased was beaten by a stick. From 20.01.2004 to 03.02.2004 her condition was not improved. She died 24 hours after the operation. In his presence P.W.17 recorded the statement of the deceased and that he has certified the consciousness of Geetha on Ex.P12. He also admitted that Ex.P12 is signed at 9 a.m. and Ex.P11 was also signed at the same time. P.W.17, the Assistant Sub-Inspector of Police, deposed that on receipt of the hospital intimation under Ex.P11, he recorded the statement of the deceased under Ex.P12 and registered Ex.P13 F.I.R. and he deposed that at the time of recording statement of Geetha in Ex.P12, doctor alone was present. Himself and the said Doctor Sudhakar Reddy signed in the statement after the deceased Geetha subscribed her signature to the statement. He drawn the scene of observation under Ex.P14, rough sketch under Ex.P15 in the presence of P.Ws.2, 3, 6, 7 and K.Venkataramana and recorded their statements. On 30.01.2004 he arrested the accused and seized the stick M.Os.3 to 7 under a cover of Mahazarnama. In the cross- examination, he admitted that the Doctor noted the time both on Ex.P11 and P12 at 9.00 a.m. and after recording the statement, the Doctor certified the consciousness of deceased Geetha. P.W.19, who took up further investigation, deposed that after receiving the death intimation of the deceased he altered the section of law and laid charge sheet. From the evidence of P.Ws.2 and 10, who are independent witnesses and neighbours of the house of the deceased and accused, clearly establishes that on 20.01.2004, the accused was inside the house of the deceased and bolted the door from inside the house. When the neighbours gathered in front of the house of the deceased and knocked the door, the accused opened the door and ran away from the house of the deceased and the deceased sustained injuries on her head and also left hand. It is also evident from Ex.P12- statement recorded by P.W.17 that the deceased was taken to the hospital and she was examined by P.W.16, who found the injuries on the deceased and that the deceased was unconscious at the time of admission into the hospital. While undergoing treatment for the injuries, the deceased got pain in the abdomen and vomited, for which she was operated by the General Surgeon on 03.02.2004. The diagnosis was generalised peritonitis due to duodenal ulcer perforation on anterior surface of first part of duodenum. And that she did not improve due to septisemic shock and expired on 04.02.2004. Though P.W.16, who examined the deceased stated that the deceased died due to septisemic shock due to duodenal perforation, which is due to severe head injury, in the cross-examination he admitted that the cardio respiratory failure is the end result of septisemic shock and from 20.01.2004 to 03.02.2004 the deceased condition was not improved. When the deceased was diagnosed suffering with peritonitis due to duodenal ulcer perforation on anterior surface of first part of duodenum, probably due to the excessive medications caused by the doctors, the prosecution miserably failed to prove that the deceased died of the head injury, which is direct cause, with the said ulcer problem, for which the deceased was operated and therefore, the accused cannot be convicted for the offence punishable under Section 302 IPC, but can be convicted for a lesser offence punishable under Section 326 IPC for causing grievous hurt to the deceased. We accordingly convict the accused for the offence under Sections 326 IPC instead of Section 302 IPC and confirm the conviction and sentence for the offence under Section 354 IPC. In the result, the criminal appeal is partly allowed. The conviction and sentence recorded by the V Additional Sessions Judge, Tirupathi in Sessions Case No.168 of 2004, dated 06.07.2005 against the appellant/accused for the offence punishable under Section 302 IPC is hereby modified, as the one under Section 326 IPC, sentencing him to undergo Rigorous Imprisonment for a period of five years, confirming the fine of Rs.1,000/-. In so far as the conviction and sentence recorded by the Court below against the appellant-accused for the offence under Section 354 IPC is hereby confirmed. Both the sentences shall run concurrently. _______________ A.GOPAL REDDY, J ___________ K.C.BHANU, J 14th June 2010 lmv