THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1633 of 2006 Dated: 25.02.2010 Between: Kuruva Abbali Lakshmanna @ Abbali Thikkanna, and another. …Appellants And The State of A.P., Rep.by its Public Prosecutor. …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1633 of 2006 JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) The appellants are accused Nos.1 and 2 in S.C.No.425 of 2005 on the file of the Court of the II Additional Sessions Judge, Kurnool, at Adoni. Aggrieved by the judgment of the learned Sessions Judge, dated 31.10.2006, whereby and whereunder they were convicted and sentenced to undergo life imprisonment for the offence punishable under Section 302 of the Indian Penal Code, 1860 (IPC), they filed the instant Criminal Appeal. The Inspector of Police, Kosigi Circle, filed charge sheet before the Court of the Judicial Magistrate of First Class (JFCM), Yemmiganur, making the following allegations. Accused No.1 is the father. Pedda Nagi Reddy (accused No.2), Sivappa and another are his three sons. They are residents of Sunkeswari Village, Mantralayam Mandal in Kurnool District. P.W.1 - Kuruva Kothili Mukkirappa, and Kuruva Beerappa (deceased) are brothers. The daughter of Kuruva Naganna (younger brother of accused No.1) was given in marriage to the second son of Beerappa. So as to resolve the property dispute between accused No.1 and his brother Naganna, there was a Panchayat. Beerappa supported Naganna to the dislike of accused No.1. Due to this, accused No.1 poisoned the mind of his son Sivappa to abandon his wife Mallamma. After doing so, Sivappa married Padmamma of another Village. In that connection, P.W.1 got filed a case with her daughter Mallamma with the support of Beerappa in the Court of JFCM, Yemmiganur, against accused No.1 and his family members in Crime No.13 of 2004 under Section 498A and 494 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961. Kuruva Naganna left his brother accused No.1’s house and came to the house of the deceased. Since then there was strained relationship between accused No.1 and the deceased. In addition, eight months prior to the culpable incident alleged, there were quarrels between Naganna and accused No.1 leading to registration of Crime No.82 of 2004 under Section 324 read with Section 34 of IPC, and Crime No.83 of 2004 under same sections of P.S.Madhavaram. Beerappa was looking after the cases and Panchayat. Accused No.1 did not tolerate the interference by Beerappa in all affairs and intended to murder him whenever an opportunity arises. On 24.03.2005 at about 10:00 am Beerappa went to Adoni on his personal work. On the same day P.Ws.1 and 2 left the Village to go to Ratchumarri. They went towards Sunkeswari bus stop. While they were at a distance of about 50 yards, a bus came from Adoni side going towards Mantralayam and stopped at the bus stop. Beerappa, L.W.3, L.W.4, P.W.3 and P.W.4 got down from the bus and were coming towards Village on cart track after passing the bus. At about 5:45 pm accused Nos.1 and 2 who were standing near the bore well near the bus stop picked up quarrel with Beerappa. There were exchange of abusive words. Beerappa caught hold of accused No.1, then accused No.2 caught hold the legs of Beerappa and dragged, due to which the latter fell down. Accused No.1 lifted a big stone with his two hands and threw it on the head of Beerappa resulting in bleeding injuries. Accused No.2 also took out big stone and threw it on the head. Beerappa died on the spot. P.Ws.1 and 2 came near Beerappa and found him dead due to injury. Accused ran away. The incident was witnesses by L.Ws.3, 4, and 8 and P.Ws.3 to 5 and 9. P.W.1 kept P.W.2 at the scene and went to the Village to inform his relations. Thereafter at about 8:00 pm P.W.1 gave a report to the Police - P.W.11, who registered Crime No.10 of 2005 under Section 302 read with Section 34 of IPC. P.W.12 investigated the case. He conducted inquest over the dead body in the presence of panchas, seized the blood stained earth, controlled earth and blood stained stones from the scene of offence during inquest. On 29.03.2005 at 8:30 am accused were arrested in the presence of arrest panchas and they were remanded on 29.03.2005. Postmortem was conducted over the dead body by the Civil Assistant Surgeon of Community Hospital, Yemmiganur, on 25.03.2005, who opined that Beerappa died due to shock and hemorrhage due to head injuries. The Court of JFCM, Yemmiganur, registered P.R.C.No.24 of 2005 and took cognizance of the offence. After duly following the provisions of Sections 207 and 209 of IPC he committed the case for trial to the Court of the Principal District and Sessions Judge, Kurnool, who made over the case to II Additional Sessions Judge, Adoni. After the accused appeared, the learned Sessions Judge framed the charges as follows. FIRSTLY: That you A.1 on 24.03.2005 at about 5.45 pm near a bore well near the bus stop at Sunkeswari Village of Mantralayam Mandal did commit murder by intentionally or knowingly caused the death of Kuruva Beerappa, by throwing a big stone on his head, and that you thereby committed an offence punishable under Section 302 IPC and within my cognizance. SECONDLY: That you A.2 on the same day, time and place as mentioned in Charge No.1 supra, did commit murder by intentionally or knowingly caused the death of Kuruva Beerappa, by throwing a big stone on his head, and that you thereby committed an offence punishable under Section 302 IPC and within my cognizance. THIRDLY: That you A.1 and A.2 on the same day, time and place as mentioned in Charge No.1 supra, in furtherance of common intention of you A.1 and A.2, when both of you committed the offence punishable under Section 302 IPC., you are thereby under section 302 read with Section 34 IPC and within my cognizance. Both the accused pleaded not guilty and prayed to be tried. The prosecution examined twelve witnesses and marked Exs.P1 to P10 and material objections M.O.1 to M.O.10. Prosecution claimed P.Ws.1, 2, 3, 4 and 7 as eyewitnesses to the dastardly murder. However, P.Ws.3, 5 and 7 turned hostile and Additional Public Prosecutor was permitted to cross examine those witnesses. The learned Sessions Judge who tried the accused relied on evidence of P.W.1 and P.W.2 and held the charge proved as against both the accused. After hearing them on the quantum of punishment the learned Sessions Judge sentenced them to undergo imprisonment for life and to pay a fine of Rs.2,000/- each in default of which to undergo imprisonment for a further period of six months. In this appeal the learned Counsel for accused made the following submissions. P.Ws.1, 2 and 4 did not see the incident and their presence at the scene of crime is doubtful. P.W.1 is brother of the deceased and he is enimical to accused No.1 and his family. Therefore, any reliance on the evidence of P.W.1 is not safe. When allegedly accused Nos.1 and 2 were attacking the deceased, P.W.1, being the brother, would not have kept quiet without going to rescue his brother. When there were six or seven persons at the place none of them went to rescue deceased Beerappa, which is highly improbable, especially, when indisputably accused Nos.1 and 2 were not armed with any weapons and there was no chance of accused Nos.1 and 2 retaliating against any person who comes to rescue Beerappa. There are unexplained inconsistencies in the evidence of P.Ws.1, 2 and 4 with regard to the position at which they are standing and also with regard to the alleged incident, and therefore, the prosecution cannot succeed on the strength of evidence of P.Ws.1, 2 and 4. Even according to P.W.1, all those present ran away prior to accused No.2 allegedly pulling the deceased down, and therefore, nobody has seen the alleged incident. According to the medical evidence of P.W.6, there were two crush injuries on the head of the deceased. Prosecution failed to explain which injury might have caused the death of Beerappa on the spot. The learned Public Prosecutor contends that the version of P.Ws.1, 2 and 4 does not contain inconsistencies nor vary from each other. They are residents of Village and rustic witnesses. All the witnesses support the version of P.W.1 in his report to the Police – Ex.P1, dated 24.03.2005, given at 8:00 pm, and even though P.W.1 is related to Beerappa, the evidence of P.Ws.1 and 2 cannot be lightly ignored. In the background of the prosecution case and the contentions urged on behalf of the appellants and the State, in this appeal we need to consider whether evidence of P.Ws.1, 2 and 4 read with Exs.P1, P5 and P3 prove the charge of offence under Section 302 read with Section 34 of IPC against the accused beyond reasonable doubt. The family of deceased Kuruva Beerappa and the family of Kuruva Abbali Lakshmanna (accused No.1) have relations by marriage. As noticed supra, the daughter of P.W.1, brother of the deceased is given in marriage to the second son of accused No.1. Not only this, accused No.1’s brother – Naganna’s daughter was given in marriage to the son of deceased Beerappa. As the second son of accused No.1 deserted his wife without settling any property to her, there were differences between the two families. In addition, as spoken to by P.W.1 there were disputes between accused No.1 and his brother Naganna in sharing the properties and P.W.1 and Beerappa supported Naganna. It appears “my enemy’s enemy is my friend” worked, and Naganna came to Beerappa to lead the life. To this extent, the evidence of P.Ws.1 and 2 is clear. Therefore, there is certainly motive for committing the crime. While considering the motive for the crime the broad aspects of human relations need to be kept in mind. It may not be always necessary nor desirable to insist upon the prosecution to prove the motive compelling the commission of the crime. Therefore, on reading the evidence of P.Ws.1 and 2 we are convinced that it is probable that accused Nos.1 and 2 bore a grudge against the deceased Beerappa for having given shelter to accused No.1’s brother and relations strained. We may, however, mention that whether the motive for accused Nos.1 and 2 was so strong that they conspired, premeditated, planned and executed such plan is altogether different question to be considered after examining the question whether the prosecution proved the case against the appellants. The prosecution examined eye witnesses. These material prosecution witnesses are P.Ws.1 to 5. But P.Ws.3 and 5 turned hostile and the Court below totally eschewed their evidence. What remains for prosecution is the evidence of P.W.1, P.W.2 and P.W.4. P.W.1 is none other than elder brother of the deceased Beerappa. P.W.2 and P.W.4, however, are villagers of Sunkeswari, but not related to the families. We will consider the evidence of these three witnesses one after the other after noticing the prosecution case once again. On 24.03.2005 Beerappa had gone to Adoni. In the evening P.W.2 requested P.W.1 to accompany him to go to Ratchumarri. Therefore, they started to bus stop on the village road at about 5:30 or 6:00 pm. When they were at about 50 yards away from the bus stop they saw the deceased Beerappa, Kuruva Poojari Chinna Naganna (P.W.3), Kuruva Veeresh (P.W.4), and two others who were not examined, namely Chakali Thimmappa and Chakali Mukkiramma, alighted from the bus running between Adoni and Mantralayam, which had just arrived then. They were going into the village. Accused Nos.1 and 2 were standing near the bore well and when Beerappa reached there, a quarrel ensued. Then Beerappa caught hold of accused No.1. Accused No.2 then caught hold of legs of deceased and pulled when he fell down. Accused Nos.1 and 2 threw two big stones (handful size) one after the other resulting in instantaneous death of Beerappa. This incident was witnessed by P.Ws.1, 2, 3 and 4 and another witness P.W.5 who was working in the fields nearby. P.W.1 is elder brother of the deceased. This by itself does not disqualify him to be a witness nor the Court can ignore the evidence when prosecution offers him as an eyewitness. P.W.1 deposed that he and P.W.2 were going towards bus stop at about 5:30 or 6:00 pm to go to Ratchumarri. Adoni to Mantralayam bus came. P.Ws.3 and 4 along with three others alighted along with Beerappa and started going to Village. After reaching borewell, there was a verbal quarrel between Beerappa and accused. P.W.1 then deposed that “Beerappa when caught hold of accused No.1 – Lakshmanna, the accused No.2 Nagi Reddy caught both the legs of deceased Beerappa and pulled, by which Beerappa fell on the ground. Then accused No.1 Lakshmanna picked up a stone found lying there and thrown it over the head of Beerappa who was lying on the ground. Then accused No.2 Pedda Nagi Reddy also picked up another big stone and he too thrown it over the head of Beerappa. I can identify those two stones if shown to me. MOs.1 and 2 which are now shown to me are the said stones picked and thrown by both the accused…” . After that he deposed that he and P.W.2 rushed towards the injured raising hues and accused ran towards Thanda. Beerappa was having bleeding injuries on the head and he was dead. Leaving the dead body with P.W.2, he went to the Village and brought his relatives to the spot, and thereafter, he and P.W.2 went to P.S.Madhavaram and reported the crime, which was reduced into writing. In the cross examination the defence did not succeed in either diluting the veracity of the statement of P.W.1 or challenged it by confronting with other evidence making a suggestion that he had not witnessed the incident of the accused killing Beerappa. P.W.2 is not related to the family of the deceased or the accused. He is resident of Sunkeswari Village. He supported P.W.1 and stated thus, “The said bus came to the bus stand and we saw Chakali Thimmappa, his wife Mukkiramma, Chinna Naganna, Veeresh and Beerappa alighting. We saw them from at a distance of about 50 yards. Those five persons were moving towards our village which is on eastern direction. We saw the accused present in the court standing at the bore well, where we further saw the accused and the deceased had a verbal quarrel. Beerappa caught hold of accused No.1, then accused No.2 caught both the legs of Beerappa and pulled, by which Beerappa fell on the ground. Then, the accused No.1 picked up two full hand size stones from at the bore well and thrown it over the head of Beerappa. I will identify those two stones if shown. MOs.1 and 2 are those stones…” . P.W.4 is also not related to both the families of accused and the deceased. He is a resident of Sunkeswari Village. He fully supported P.Ws.1 and 2. He is one of the five passengers mentioned by P.Ws.1 and 2 who alighted from the bus that came running between Adoni and Mantralayam. He also deposed that the deceased caught hold of accused No.1, that accused No.2 pulled the legs of deceased, and accused No.1 threw a stone on the head of Beerappa who had fallen down and that accused No.2 also threw another stone, as a result of which deceased died. In cross examination P.W.4 stated that they were proceeding to the Village and had crossed some distance (he says: Acs.4.00 land distance) from the bore well, and that they ran away after Beerappa fell down. From these learned Counsel for appellants points out that the evidence of P.Ws.1 and 2 or their presence at the scene of offence is unbelievable. We cannot accept. Even P.W.1 also stated that after Beerappa was injured he and P.W.2 alone rushed towards deceased, and others ran away. The minor variation that the group had crossed Acs.4.00 distance of land is not of such nature to throw away the evidence of P.W.1, which is corroborated by P.Ws.2 and 4. The distance also did not suggest any inconsistence in the statements of the witnesses given to Police or the version which is reported in Ex.P6 – FIR. Therefore, we do not agree with the submission of the learned Counsel for the appellants that the presence of P.Ws.1 and 2 has to be disbelieved. It is pointed out for the accused that P.W.1, being brother of deceased and knowing fully well that accused were not armed, did not rush to rescue of Beerappa when he was being manhandled by accused No.1 and his son. This according to him is improbable. This submission cannot be accepted. If one looks at the version given by P.Ws.1 and 2 carefully, it is very clear that after accused Nos.1 and 2 threw stones on the fallen Beerappa and ran away from the scene, P.Ws.1 and 2 rushed to the deceased. Thereafter, P.W.1 went to Village keeping P.W.2 near the dead body to bring his relatives. Further, it is only P.W.1 along with P.W.2, who went to the Police Station and gave a report. When Beerappa had himself started the quarrel and Beerappa himself had caught hold of accused No.1, P.Ws.1 and 2 might not be having any mood to interfere in the scene. What happened thereafter was in a quick succession – that of accused No.2 pulling the legs of Beerappa, and he falling on the ground, and thereafter accused Nos.1 and 2 throwing handful size stones one after the other. When such a thing happened, the reaction time of anybody including the close relative would not be so fast as the Counsel suggests. Immediately after visualizing that the father and son threw stones on Beerappa’s head, P.Ws.1 and 2 reacted naturally and rushed to the deceased. Therefore, we do not find any doubtful or abnormal conduct on the part of P.Ws.1 and 2 when Beerappa died. In view of the evidence of the eyewitnesses, P.Ws.1, 2 and 4, it must be held that the prosecution proved the factum of both the accused killing Beerapa beyond reasonable doubt. But, this Court cannot ignore the following circumstances in considering the offence committed by the accused and the sentence imposed on them. The circumstances relevant for this purpose are the following. i) Accused Nos.1 and 2 were not armed on the date of the commission of offence; ii) There is no evidence on record nor it is the case of the prosecution that accused Nos.1 and 2 came to the bore well with a premeditated plan to kill Beerappa; iii) there is no evidence on record to show that accused Nos.1 and 2 were aware that Beerappa was likely to come to the Village at that time by Adoni and Mantrayalam bus, and iv) as per the evidence of P.Ws.1, 2 and 4 Beerappa started the quarrel with the accused and it is he who caught hold of accused No.1 provoking both the accused. From these circumstances, the Court has to consider whether the prosecution made out the case of culpable homicide amounting to murder to warrant charge under Section 302 IPC. It is axiomatic that the culpable homicide is a murder. This is subject to four exceptions in Section 300 IPC. Exception 4 covers the case of culpable homicide without premeditation. This is so held in number of decisions of the Supreme Court. But, we may refer to a latest judgment in Golla Yelugu Govindu v State of Andhra Pradesh[1], wherein it is held. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A ‘sudden fight’ implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner… On appreciation of the evidence and the conduct of the deceased prior to commission of offence, we are convinced that Section 302 IPC has no application and the act of assault was made during the course of sudden quarrel. Exception 4 of Section 300 IPC applies to the facts of this case. Therefore, we arrive at the inevitable conclusion that the appropriate conviction shall have to be under Section 304 Part I of IPC. In the result, for the above reasons, we accordingly modify the conviction of the appellants/accused Nos.1 and 2 into the offence punishable under Section 304 Part I of IPC and sentence both the accused to undergo rigorous imprisonment for ten years. The impugned judgment imposing fine of Rs.2,000/- each and imprisonment for six months in default of payment of fine shall stand confirmed. The Criminal Appeal, as indicated above, is accordingly partly allowed. _______________ (V.V.S.RAO, J) _____________________________ (SAMUDRALA GOVINDARAJULU, J) .02.2010 vs [1] 2008 Crl.L.J 2607