HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO Crl.A.No. 583 of 2007 Date: 20-10-2010 Between Ejju Kumaraswamy ……….. Appellant and State of A.P. …….. Respondent HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO Crl.A.No. 583 of 2007 JUDGMENT: (Per Hon’ble Sri Justice A. Gopal Reddy) This Appeal is directed against the judgment, dated 29-03-2007 passed in S.C.No.193 of 2006 on the file of the IV Additional District and Sessions Judge (Fast Track Court), Karimnagar. 2. The brief facts of the case are as follows: PW-1 is the son, PW-2 is the sister-in-law, PW-3 is the niece and PW-4 is the husband of the deceased. PW-3 is the wife of the accused and their marriage was performed about seven years prior to the date of the incident, and they were blessed with two children. PW-3 quarrelled with the accused and went to the house of her mother (PW-2). On 11-06- 2005, PWs.2 and 3 went to a doctor at Huzurabad and from there, at about 3-00 PM, they went to the house of the deceased. Then the accused came to the house of the deceased, picked up a quarrel with PW-3 and went away. About two hours later, the accused again came and quarrelled with PW-3 and stabbed on her right leg with a knife. When the deceased intervened to rescue PW-3, the accused stabbed on her stomach with the same knife. PWs.2 and 4, who were present there, witnessed the incident. Then, on receiving information from PW-5, PW-1 immediately rushed to the scene of occurrence and shifted the injured to M.G.M. Hospital, Warangal. While undergoing treatment, the deceased succumbed to the injuries. 3. On 12-06-2005 at about 7-00 AM, on receiving Ex.P-1, report, from PW-1, PW-15, Sub-Inspector of Police, registered a case in Crime No.106 of 2005 and issued Ex.P-21, FIR. Later, PW-17, Inspector of Police, took up investigation, visited the scene of occurrence, and prepared Ex.P-10, observation report, in the presence of PW-9 and drew Ex.P-22, rough sketch of the scene of occurrence. He visited the hospital, held inquest over the dead body of the deceased in the presence of PW-8 under Ex.P-9, inquest report. PW-12, Associate Professor in Forensic Medicine Department at K.M.C., Warangal, held autopsy over the dead body of the deceased and opined that the cause of death was due to stab injury and issued Ex.P-15, postmortem report. On 24-06-2005, PW-17 arrested the accused in the presence of PW-10 and at his instance, M.O.1, knife, was recovered. After completion of the investigation, PW-17 filed the charge sheet. 4. On committal, charges for the offences under Sections 498- A, 307 and 302 of IPC were framed against the Accused and when the charges were read over and explained to him, he denied the same and claimed to be tried. 5. To substantiate its case, the prosecution examined PWs.1 to 17 and got marked Exs.P-1 to P-27 and M.Os.1 to 6. On defense side, no oral or documentary evidence was adduced. 6. The learned Sessions Judge, on appreciation of oral and documentary evidence, found the accused not guilty of the offences under Sections 498-A of IPC and 307 of IPC and acquitted him of the same. However, he found the accused guilty of the offences under Sections 302 and 324 of IPC and accordingly, convicted him for the said offences and sentenced to undergo life imprisonment and to pay fine of Rs.500/-, in default to suffer simple imprisonment for three months, for the offence punishable under Section 302 of IPC, and to undergo simple imprisonment for three years and to pay fine of Rs.500/-, in default to suffer simple imprisonment for two months, for the offence punishable under Section 324 of IPC. 7. Sri C. Padmanabha Reddy, learned senior counsel appearing for the appellant-accused, contended that the evidence of the prosecution witnesses is not corroborative and the prosecution could not prove the guilt of the accused. He further contended that if at all the evidence of the prosecution witnesses is believed, as per their evidence, the wife of the accused (PW-3) went to the house of the deceased and on return of the accused to house, he did not found PW-3 in the house and he went to the house of the deceased, where a quarrel between the accused and his wife has taken place and during the course of quarrel, the deceased intervened to rescue PW-3 and the accused stabbed on her stomach. Therefore, as the accused had no intention to kill the deceased and as the incident occurred due to sudden provocation in a heat of passion, the offence falls under Section 304, Part II of IPC, but not under Section 302 of IPC. 8. We have heard the learned Additional Public Prosecutor and gone through the entire evidence available on record. 9. PW-1, son of the deceased, who was working in a chit fund company at Huzurabad, deposed that he lodged Ex.P-1, report, on 12-06- 2007 at 7-00 am stating that his maternal sister-in-law Ejju Bhagya (PW-3) quarrelled with her husband (accused) and came to his mother’s house on 11-06-2005 and on the same day at about 5-00 PM, the accused also came to his mother’s (deceased) house and quarrelled with Bhagya (PW-3) and stabbed her and caused injury on her right leg. When his mother (deceased) interfered, the accused stabbed on her stomach with the knife causing severe bleeding injury. On receipt of information from his wife (PW-5), he immediately came to the house and took the deceased to M.G.M. Hospital, Warangal in an auto. While undergoing treatment, the deceased succumbed to the injuries on the same day at about 9-00 PM. 10. PW-2, who is the mother-in-law of the accused and mother of PW-3, categorically stated that she performed the marriage of PW-3 with the accused about 7 or 8 years prior to her examination and after the marriage, PW-3 was blessed with one son and one daughter. According to PWs.2 and 3, they went to the house of the deceased at about 3-00 PM. Later, the accused came there and quarrelled with PW-3 and went away. Again, after one hour, he came back and started quarrelling with PW-3 and during the said quarrel, the accused stabbed on the right thigh of PW-3. In the meanwhile, the deceased interfered to rescue PW-3 and the accused stabbed on her stomach. Thereafter, PW-3 and the deceased were shifted to the hospital by PW-1. But, the deceased, while undergoing treatment, succumbed to the injuries at 9-00 PM on the same day. 11. PW-4 is the husband of the deceased. His evidence corroborates the evidence of PWs.2 and 3, who are eyewitnesses to the incident. 12. The evidence of PW-12, doctor, also corroborates the evidence of PWs.2 and 3 with regard to the cause of death of the deceased. PW-3 was examined by PW-14, doctor, at M.G.M. Hospital and Ex.P-20, wound certificate, was issued, which shows that she received simple injuries caused with a sharp edged weapon. 13. The evidence of PWs.2 and 3, who are eyewitnesses, shows that on the date of incident, they went to the house of the deceased and the accused also came there at about 2-00 PM and quarrelled with PW-3 and went away and again, he came back and started quarrelling with PW-3 and inflicted stab injuries on her right thigh and during the said quarrel, when the deceased interfered to rescue PW- 3, the accused stabbed in her stomach, due to which the deceased died in the hospital while undergoing treatment. Therefore, the evidence of PWs.2 and 3, which is corroborated by the medical evidence, shows that the deceased met with homicidal injury. It is not the case of the prosecution that the accused went to the house of the deceased with an intention to kill her. The only case of the prosecution is that during the quarrel, when the deceased intervened, the accused stabbed on her stomach, which gave fatal result. In those circumstances, we are of the opinion that the accused had no intention to cause the death of the deceased and on account of sudden provocation in a heat of passion, he caused the injury on the stomach of the deceased. But, it can be said that the accused was having knowledge that the injury to be caused on the stomach of the deceased would likely to cause her death. Therefore, the offence falls under Section 304, Part II of IPC, and the accused has to be convicted for the same, instead of 302 of IPC. The lower Court has not given sufficient reasons for convicting the accused for the offence under Section 302 of IPC and the circumstances in the case do not indicate that the accused, with an intention to kill the deceased, stabbed on her stomach. Therefore, the conviction and the sentence recorded by the lower Court against the accused for the offence under Section 302 of IPC is liable to be set aside. However, he is liable to be convicted for the offence under Section 304, Part II of IPC. 14. In the result, the Criminal Appeal is allowed in part. The conviction and sentence of imprisonment recorded against the appellant-accused for the offence under Section 302 of IPC by the IV Additional District and Sessions Judge (Fast Track Court), Karimnagar, vide judgment, dated 29-03-2007 in S.C.No.193 of 2006, are hereby set aside and instead, the appellant-accused is convicted for the offence under Section 304, Part II of IPC and sentenced to undergo imprisonment for five years, however, the fine amount imposed for the offence under Section 302 of IPC remains unaltered. The conviction and the sentence recorded against the appellant-accused for the offence under Section 324 of IPC stands confirmed. Both the sentences shall run concurrently. ________________ A. GOPAL REDDY, J ______________ RAJA ELANGO, J Date: 20-10-2010 YCR