THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL No.1229 OF 2005 Dated:02.11.2009 Between: Batti Raghuramaiah .. Appellant And The State of Andhra Pradesh, rep., By its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad .. Respondent ORDER: The accused in S.C.No.1 of 2004 on the file of the Court of Session, Nellore, filed this appeal against the conviction and sentence imposed by the judgment, dated 13.06.2005. The case of the prosecution was that, one K.Rathnaiah, the deceased, borrowed Rs.1,000/- from the accused and repaid only Rs.500/- leaving a balance of Rs.500/-, which was not paid in spite of demands. A quarrel was alleged to have taken place at the house of K.Rathnaiah at Mulapet, Nellore, on 11.04.2003 at about 07.30 p.m., to 08.00 p.m. The accused armed with an iron vankam came from the back of Rathnaiah and beat him with the said iron vankam causing a severe injury on the back side of his head. Rathnaiah fell on the ground and the accused ran away and Padarthi Jayaramaiah with the help of other villagers shifted Rathnaiah to A.V.S. Hospital, Nellore, where he was pronounced dead. Crime No.95 of 2003 was registered and the Inspector of Police conducted observation proceedings at the scene, held inquest before the mediators and sent the dead body for post mortem. The Medical Officer opined the death of Rathnaiah to be due to cerebral hemorrhage due to injury on the head. The Inspector of Police arrested the accused on 14.04.2003, near Kommarapudi Village tank bund before mediators and in pursuance of the voluntary confession of the accused, the weapon of offence was seized from the accused. The prosecution, therefore, sought for punishing the accused for an offence punishable under Section 302 of the Indian Penal Code. The learned Magistrate served the copies of the documents on the accused on his appearance and committed the case to the Court of Session and after appearance of the accused before the Court of Session, a charge under Section 302 of I.P.C. was framed, read over and explained to him, for which he pleaded not guilty. The prosecution examined PWs.1 to 9 and marked Exs.P1 to P11 and M.O.1. The accused denied the incriminating circumstances appearing in the evidence against him, when he was examined under Section 313 Cr.P.C. and did not produce any defence evidence. The trial Court rendered the impugned judgment referring to the rival contentions and the precedents cited by the learned defence counsel. The trial Court observed that the evidence of PWs.2 and 3, the material eye witnesses had nothing to suggest even a single material contradiction and both of them were noted to have deposed that they were in their house at the time of the quarrel and that they found the actual overt act of the accused against the deceased. The trial Court felt that the evidence of other prosecution witnesses was only formal and further referred to the evidence of Medical Officer – PW.5 about the cause of death being possibly due to use of a blunt object – M.O.1 and also the evidence of investigating officer – PW.9 about the recovery of M.O.1 – iron vankam from the accused. The trial Court on an analysis of the facts and circumstances also found that there was no motive for the accused to kill the deceased and nobody would have resorted to murder, due to any dispute about any petty amount. The trial Court also found that the manner in which the accused beat the deceased and ran away without even looking at the deceased again also indicates that the blow was aimed without any specific intention and without aiming at any particular part of the body. The trial Court, therefore, concluded that the offence made out can only be under Section 304 Part II of I.P.C., and accordingly convicted the accused under the said provision. After examining the accused on the quantum of sentence, the trial Court imposed a sentence of Rigorous Imprisonment for ten years and a fine of Rs.2,000/-, with a default sentence of Simple Imprisonment for two months, with the benefit of set off and also directed destruction of M.O.1. The accused challenges the said judgment in this appeal contending that PWs.2 and 3 came forward to claim that they were eye witnesses only on the next day, which probablises that they were planted. The delay in giving the report for eight hours and the delay in sending the First Information Report to the Magistrate for four hours also should have led to suspecting the truth of the prosecution version and no credence should have been given to the recovery of M.O.1, which was planted by the police. Sri T.Bali Reddy, learned Senior Counsel for the appellant, strenuously contended that the foundation of the prosecution case resting on the version of PWs.2 and 3, is so weak and is not acceptable, in the light of the contradictions between the evidence of PWs.2 and 3, as to when PW.3 came to his house, making it doubtful whether he would have witnessed the incident at all. The admitted absence of any street light and the delay in examining PW.3 raise suspicion about their credibility and M.O.1 weapon was not sent to the Forensic Science Laboratory. The mediator for the alleged confession and recovery turned hostile and on the whole, it could not have been said that any offence was made out beyond all reasonable doubt. The learned Senior Counsel also stated that, in any view, on the own conclusions of the trial Court about the manner of the incident, imposing the maximum sentence of ten years is unduly harsh and disproportionate. Sri K.Venkateswara Rao, learned counsel representing the learned Public Prosecutor defended the impugned judgment stating that irrespective of any other deficiencies, there was no reason to discredit the evidence of PWs.2 and 3 at all, who were in fact closely related to accused and would have had no motive to implicate him. While leaving the question of quantum of sentence to the Court as may be considered reasonable by it, the learned counsel stated that the trial Court was eminently justified in finding the accused guilty under Section 304 Part II of I.P.C. The points that arise for consideration in this appeal are: 1) Whether the guilt of the accused for an offence punishable under Section 304 Part II of I.P.C. was established beyond all reasonable doubt? 2) If so, what would be the reasonable sentence to be imposed for such an offence? POINT No.1:- Ex.P6 report was given in the early hours on 12.04.2003 by K.Raghupathi - brother of the deceased Rathnaiah and in the earliest version, he stated that the dispute was about the deceased not repaying the balance of loan to a tune of Rs.500/-, in spite of demands by the accused and the consequential disputes. The report also stated about the accused coming from behind the deceased Rathnaiah and hitting him on the head with the iron vankam, on which he fell down. The report also stated that the brother of the deceased and the deceased went together and were talking with the wife and father of PW.3. It is true that Ex.P6 made no reference specifically to the presence of PW.3, nor did it refer to the dispute between the deceased and the members of the family of the accused. A gap of about seven to eight hours between the alleged incident and the report by the brother of the deceased or the further gap of about four hours between the registration of the First Information Report and the same reaching the concerned Magistrate under Ex.P7, cannot be considered to be so abnormal as would create any strong suspicion against the credibility of the First Information Report. While, Raghupathi, the brother of the deceased, who gave the report was not examined during trial, in spite of his appearing to be also an eye witness, the said witness was said to have died, due to which, the prosecution could not examine him. The inquest report and report of observation for the scene of offence Exs.P3 and P2, conducted in the morning hours on 12.04.2003 between 8.30 a.m., and 12.30 p.m., were prompt and the fact that no incriminating circumstances could be detected at the scene of offence is explicable due to the accused allegedly coming behind the deceased and escaping from the scene along with the weapon, soon after beating the deceased on his head and also further due to injuries disclosed by the post mortem not appearing to have resulted in any heavy bleeding of the deceased, which would have resulted in any blood stains being left at the scene. The inquest report Ex.P3 positively stated about the deceased Ratnaiah and PW.2 being eye witnesses, though PW.3 was not specified to be an eye witness. The version of the witnesses before the mediators for the inquest report was no way inconsistent with the version in the First Information Report and PW.6, one of the inquest mediators, and the Panchayat Secretay also stated about the witnesses informing them about the deceased being beaten with an iron vankam. While PW.1, the mother of the deceased and PW.4, wife of the deceased, were not eye witnesses to the incident, PW.1 found the dead body in front of the house of PW.3 when she went on information and PW.4 stated about the deceased being still due Rs.500/- to the accused about which the accused was demanding. PWs.2 and 3, eye witnesses, claimed the accused to be the son of the paternal aunt of PW.3 and the suggestion to PWs.2 and 3 about their desire to get back Ac.0.40 cents of land given by the father of PW.3 to the mother of the accused being the motive for making a false accusation does not appear very convincing nor was the suggestion supported by any other events indicating any such efforts by PWs.2 and 3 to get back the land. The accused and PWs.2 and 3 are neighbours and in the absence of proof of any disputes or motives, their evidence becomes all the more trust-worthy due to the close relationship between them and the accused. The evidence of PWs.2 and 3 about the time at which PW.3 returned home may show it to be varying between 7.30 to 9.00 p.m. But the evidence of the rustic villagers cannot be expected to be very accurate in such details. The presence of PW.2, a house wife, at her house at that time and her witnessing the incident, at any rate, cannot be said to be unnatural in any manner and the version of PWs.2 and 3 is that when the deceased and the mother, sister and brother-in-law of the accused were disputing, accused came from behind and beat on the back of the head of the deceased with the iron vankam. Both of them claimed that the deceased was taken to the hospital, where he was declared dead. It is true that the witnesses stated that there were no street lights at that time, but the evidence of PW.9 mentions about the presence of a 100 Wts. Electic bulb near the scene, which was also specified in Ex.P2 observation report, which specifically referred to such a bulb being there in the Veranda of the house of PW.3. It is also true that the evidence of PW.2 is that there were about ten people present at the time of the quarrel and all of them were not examined before the Court, but it is the quality and not the quantity of evidence that counts and PW.2 not observing on which part of the body of the deceased, M.O.1 hit, was also natural. PW.2, who is admittedly a neighbour of the accused, also stated about the recovery of M.O.1 iron vankam from the house of the accused and PW.3 claimed that he would have stopped the accused before the incident, if he had observed him, which also appears in tune with the ordinary and natural course of human conduct. The evidence of PW.5 – Medical Officer about the injuries found during post mortem is in tune with the overt act attributed to the accused and his evidence also did not suggest any heavy bleeding before death. The approximate time of death estimated by PW.5 is not too distant from the time of the alleged incident and the medical expert spoke about the possibility of M.O.1 causing such injuries. The hypothetical possibility of more than one person causing the injuries will not dilute the strength of the prosecution version and PW.7, the mediator for the arrest and recovery spoke about the Circle Inspector arresting the accused in his presence though he did not specify about the accused producing anything in his presence. While the evidence of PW.8 is about the registration of the First Information Report, notwithstanding the hostility of PW.7, there appeared no positive reason to believe that PW.9 who spoke about the arrest and recovery under Exs.P8 and P9 would have foisted any false case against the accused for no reason. PW.9 spoke about his investigation in detail and while he admitted that M.O.1 was not sent to the Forensic Science Laboratory, the same may not be material when it is not the claim of the prosecution that it had any blood stains to be examined by such a laboratory. The evidence on record, oral and documentary, thus, does not appear to be unnatural or unconvincing and the trial Court relying on the same, therefore, cannot be considered to be vitiated. There are no circumstances to believe any such objects or witnesses to be planted to fabricate a false case against the accused. The facts and circumstances also clearly disclosed that it was in the heat of the moment, during the course of the quarrel between the deceased and the family members of the accused that the accused suddenly assaulted the deceased from behind with the iron vankam, which was neither preconceived nor premeditated. Any specific aim at any vital part of the body and any specific intention to cause any specific injury could not have been presumed as rightly concluded by the trial Court and Exception 4 to Section 300 of the Indian Penal Code governing a culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel was rightly applied by the trial Court, as the accused was not shown to have taken any undue advantage or to have acted in a cruel or unusual manner in hitting the deceased. Hence, it has to be concluded that the prosecution beyond reasonable doubt proved that the accused was guilty of committing an offence punishable under Section 304 Part II of the Indian Penal Code. POINT No.2: The accused was aged only about 30 years by the time of the incident and he was not alleged to be having any past criminal record. Obviously the agriculturist with a family background, was a law abiding citizen till the incident and his being aggrieved due to the deceased not repaying the loan of Rs.500/- cannot be considered unreasonable. The quarrel must have obviously led to heat of passion and the facts and circumstances clearly disclose that an aimless blow, without any intention to kill, unfortunately proved to be fatal and the evidence of PWs.2 and 3 may suggest that the accused also had to look after his mother and even his sister and sister’s husband. Though technically the beating with the iron vankam on the back of the head of the deceased may have to result in attributing knowledge to the accused that his act was likely to cause such bodily injury likely to cause death, the facts and circumstances do not suggest the offence to be one susceptible to be punished with the maximum imprisonment of ten years. The elements of proportionality or reasonableness, if kept in view, in the background of the various circumstances referred to above, confining the period of imprisonment to three years appears to serve the interests of justice and therefore the sentence has to be accordingly modified. As the evidence of PW.2 discloses that the deceased beat the accused, which resulted in the quarrel and the subsequent assault by the accused, the emotional reaction of the accused though unjustifiably disproportionate does not call for a very severe sentence. Hence, while confirming the conviction, the sentence may have to be modified accordingly. In the result, the conviction of the accused for an offence punishable under Section 304 Part II of the Indian Penal Code in S.C.No.1 of 2004 on the file of the Court of Session, Nellore, by the judgment, dated 13.06.2005 is confirmed, but the sentence is modified to one of Rigorous Imprisonment for a period of three years and a fine of Rs.2,000/-, with a default sentence of Simple Imprisonment for a period of two months, with the benefit of set off and the appeal is ordered accordingly. ___________________ G. BHAVANI PRASAD, J 2nd November 2009 KH