IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.2613 of 2004 DATE: 12.10.2011 Between: Boya Parasuramudu …… Appellant And The State rep. by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2613 of 2004 JUDGMENT : The appellant/accused was convicted by the lower Court under Section 304 Part II I.P.C and was sentenced to rigorous imprisonment of 5 years. Questioning the same, the accused filed this appeal. 2) It is prosecution case that about 4 months prior to the offence the accused demanded the deceased to give one sheep to him and the deceased refused to give the same and that the accused forcibly took away one sheep from the deceased by threatening him and that on mediation held in the presence of village elders, the accused had to return the sheep to the deceased. It was the motive for the offence. It is alleged that on 14.06.2003 at about 5.00 P.M when the deceased reached near Devamma temple in Siddarampuram village, the accused came from behind the deceased and attacked him and that the accused dealt a blow with cart peg on right side of head of the deceased, due to which the deceased received head injury and that the deceased succumbed to the said injury on 17.06.2003 at 12.45 P.M while undergoing treatment in Government General Hospital, Anantapur. Plea of the accused is one of total denial and not guilty. Though the lower Court framed charge against the accused under Section 302 I.P.C, after trial, found him guilty under Section 304 Part II I.P.C. 3) The appellant’s counsel is absent. He could not have addressed arguments in this matter even if he appeared before this Court because he became Additional Advocate General about 10 months back. In spite of it, no other counsel filed Vakalat for the appellant who is on bail. 4) The lower Court, placing reliance on prosecution evidence of P.Ws 1 to 3, came to the conclusion that the accused caused head injury resulting in death of the deceased. In the lower Court, the accused set up theory of slip and fall in forest area, due to which the deceased sustained head injury resulting in his death. The accused examined D.Ws 3 and 4 on this aspect. The lower Court disbelieved evidence of D.Ws 3 and 4 and negatived theory of slip and fall of the deceased in drunken state. P.W-5 is Surpanch of Siddarampuram Gram Panchayat. It is his evidence that four months prior to death of the deceased, the deceased came to him and informed him about the accused taking away his sheep forcibly and requested to convene panchayat and that after two days he convened panchayat along with Y.Venkata Reddy, Ex-Surpanch of Kuruvallu gram panchayat and advised the accused to return sheep of the deceased and that the accused agreed for same. P.W-5 proved earlier grudge between the accused and the deceased. When there are eye witnesses to the occurrence, motive recedes back; and it has to be seen whether evidence of eye witnesses to the occurrence is to be believed or not. 5) P.Ws 1 and 2 are brothers of the deceased. P.W-3 is cousin of the deceased. It is evidence of P.W-1 that on the date of offence at about 5.00 P.M when the deceased was coming from house of Yerriswamy (P.W-2) the accused beat the deceased on his head with a stick near Devamma temple and that he, Shankarappa and others were sitting near the temple at that time and that they rushed to the place of offence on hearing hue and cry of the deceased and that the accused ran away. He further says that he and others took the deceased to Bommanhal Police Station where he gave report to the police and that the deceased was sent to Kanekal hospital. Ex.P-4 is report given by the deceased to the police. In Ex.P-4, the deceased apart from stating motive for the offence, stated that on 14.06.2003 at 5.00 P.M he went to house of his younger brother P.W-2 and was returning from his house and that the accused obstructed him in front of Devamma temple and beat him with stick on right side of head due to which he sustained injury and fell down unconscious and that his elder brother P.W-1 younger brother P.W-2, Shankarappa P.W-3 and some others came there and the accused ran away. P.W- 11 is Sub-Inspector of Police, Bommanhal Police Station. It is his evidence that on 14.06.2003 at 7.00 P.M the deceased came to the police station and presented Ex.P-4 written report to him and that he registered the same as case in Crime No.24/2003 under Sections 341 and 324 I.P.C and issued Ex.P-5 F.I.R. P.W-11 testified Ex.P-4 as the report given by the deceased to him. Ex.P-4 is in the nature of a dying declaration which is relevant under Section 32 of the Evidence Act. 6) It is evidence of P.W-2 that on the date of incident at about 4.30 P.M the deceased came to his house and after talking to him the deceased returned and that on the way when the deceased reached Devamma temple the accused attacked the deceased and beat him with stick on right side of head and that he witnessed the incident standing in front of his house. He says that distance between his house and the temple is 50 to 60 feet. He further says that P.Ws 1 and 3 who were sitting in front of the temple, rushed to the deceased and that he also rushed to the deceased after seeing the incident and that the accused ran away from the place after attacking the deceased. It is evidence of P.W-3 that while the deceased was returning from his brother’s house and came near Devamma temple, the accused beat the deceased on right side of head with stick and the deceased fell down. He says that he was sitting on pail of the temple and that having witnessed the offence, he and P.Ws 1 and 2 rushed to the place of offence and the accused ran away. 7) P.W-4 says that he was present in a tea hotel and that on hearing cries he came out of the hotel and saw the accused holding stick in his hand and that when he went to the scene of offence he noticed the deceased lying on road with injury on his head. In cross-examination, he deposed that the accused was carrying bamboo stick and that it was not a cart peg. P.W-4 has not seen the accused hitting the deceased on head. Therefore, he was not sure whether the accused hit the deceased with bamboo stick or a stick which can be used as cart peg. P.W-12 is the then Inspector of Police, Rayadurg circle. He arrested the accused on 28.06.2003 and in pursuance of statement said to have been given by the accused in the presence of mediators P.W-12 seized M.O-1 cart peg stick which was concealed by the accused in a hut meant for sheep under the cover of mahazar. P.W-7 is the mediator in whose presence the accused was arrested on 28.06.2003 at 9.45 A.M in Siddarampuram village in front of his house. He says that he and another attested the mahazar as panchayatdars and that M.O-1 was produced by the accused from backside of the door of sheep hut. Ex.P-2 is the relevant portion relating to seizure of M.O-1 at the instance of the accused. P.W-7 is panchayat secretary of Bommanhal village. Since P.W-12 was going to house of the accused on information, P.W-12 collected P.W-7 and another as mediators at Bommanhal village itself. 8) Presence of P.Ws 1 to 3 at or near the scene is stated in Ex.P-4 report itself. Ex.P-6 is statement of the deceased recorded under Section 161(3) Cr.P.C during investigation by P.W-11. It is also in the nature of dying declaration, giving the circumstances which lead to death of the deceased subsequently. In Ex.P-6 the deceased stated that on 14.06.2003 at about 5.00 P.M he went to his younger brother’s house and while returning to his house the accused came from behind him and obstructed in front of Devamma temple and beat him with stick on his hand and right side of head and that he fell down unconscious and that his brothers P.W-1 and P.W-3 who were setting on Devamma temple pail rushed to him by running and that P.W-2 also came there by running and that the accused ran away. The evidence of P.Ws 1 to 3 is consistent with the statements of the deceased which are in the form of dying declarations contained in Exs.P-4 and P-6. There are no circumstances to disbelieve their evidence. The lower Court concluded that P.W-4 was only a chance witness. 9) It is evidence of D.Ws 3 and 4 that the deceased was in the habit of taking liquor and that on the previous day the deceased fell on a stone by slipping in forest area and sustained head injury. The accused also examined D.Ws 1 and 2 who are the casualty medical officer and another doctor who treated the deceased in Government General Hospital, Anantapur. It is their evidence that the deceased was not referred to Anantapur Hospital from Kanekal hospital and that the deceased straight away joined in Anantapur hospital and that there is no evidence of first aid given to the deceased prior to he joining in Anantapur hospital. Simply because Anantapur hospital’s records do not disclose about the deceased taking prior treatment in Kanekal hospital, one cannot jump to the conclusion that the deceased straight away came to Government General Hospital, Anantapur for treatment. It is evidence of P.Ws 1 and 2 that from the police station the deceased was taken to Government Hospital, Kanekal for treatment and from there, the deceased was shifted to Anantapur Hospital. It is evidence of P.W-11 that after registering Ex.P-4 report, issuing Ex.P-5 F.I.R and recording Ex.P-6 statement of the deceased under Section 161(3) Cr.P.C he sent the injured to the Government Hospital, Kanekal along with medical requisition through P.C.No.327 for treatment. Therefore, there can be no doubt of the fact that immediately after the offence, P.W-1 and others took the deceased to Bommanhal Police Station which is located at a distance of about 4 ½ kilometres from Siddarampuram village and after giving Ex.P-4 written report at 7.00 P.M, the deceased was taken for treatment to Government Hospital, Kanekal. It is only thereafter the deceased went to Government General Hospital, Anantapur for better treatment. But the deceased succumbed to the injuries in Government General Hospital, Anantapur on 17.06.2003. P.W-11 received death intimation relating to the deceased and altered section of law in this crime to section 302 I.P.C and issued Ex.P-9 altered F.I.R. P.W-8 is Civil Assistant Surgeon working in Government Hospital, Kanekal. It is his evidence that on 14.06.2003 at 8.45 P.M he admitted the deceased and treated him and that the deceased was having one injury on right side of face and one abrasion on shoulder and that on 15.06.2003 as condition of the patient was critical, he referred him to Government General Hospital, Anantapur. He filed Ex.P-13 accident register Ex.P-12 case sheet and Ex.P-11 admission slip relating to the deceased in his hospital. Therefore, there cannot be any doubt or dispute that the deceased was treated in the first instance at Kanekal hospital and thereafter he took treatment in Anantapur hospital. 10) P.W-9 is the professor of Forensic Medicine, Government Medical College, Anantapur who conducted autopsy on dead body of the deceased and gave Ex.P-3 post mortem certificate giving details of external and internal injuries found. He opined that death of the deceased was due to Cranio cererabl injury i.e., head injury. He says that the said injury is possible with a stick like M.O-1. 11) From the above evidence let in by the prosecution, it is evident that evidence of D.Ws 3 and 4 cannot be believed. The lower Court scrutinised the entire record of evidence on proper lines and came to a right conclusion in favour of the prosecution to the effect that the deceased died of head injury caused by the accused with M.O-1 stick/cart peg. The lower Court came to the conclusion that there was no intention on the part of the accused to kill the deceased and consequently found the accused guilty of a lesser offence under Section 304 Part II I.P.C. There are absolutely no grounds for interfering with the said conclusion arrived by the lower Court, in this appeal. 12) In the result, the appeal is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J October 12, 2011 ksh