IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TENTH DAY OF DECEMBER TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.700 of 2007 Between: Dasyam Ramnadh .. Appellant/1st accused AND The State of A.P. rep. by its Public Prosecutor, High Court of A.P., Hyderabad .. Respondent/Complainant Appeal against the judgment in Sessions Case No.182 of 2005 on the file of the Court of Session, Warangal, dated 04-01-2007. The appeal coming on for hearing, upon perusing the grounds filed in support thereof and upon hearing the arguments of Sri G. Vijaya Saradhi, Advocate (Legal Aid) for the appellant and of the Public Prosecutor for the respondent, the Court made the following: JUDGMENT: The 1st accused in Sessions Case No.182 of 2005 on the file of the Court of Session, Warangal filed the present appeal through the Andhra Pradesh High Court Legal Services Committee being aggrieved by his conviction and sentence for an offence punishable under Section 304 Part-II of the Indian Penal Code. The factual background for the appeal is that Dr. Ramkumar Reddy as President and Sindam Venkata Ramana as Secretary of Helping Hand Society at Balasamudram, Hanamkonda were helping in treating chronic alcoholics. Punnam Raghava Reddy, Sangam Surya Prakash, Vanam Sridhar Rao, the accused and some others were undergoing treatment in the society and in the evening of 12-05-2004, Velthuri Raju and Kota Sunil, care takers, attended to the patients in the society and at about 10.30 P.M., the accused brought a coconut and knife to cut the coconut and drink coconut water, which was questioned by Punnam Raghava Reddy and there was a quarrel and the accused attacked Raghava Reddy with the knife and caused injuries on the chest and neck. Raghava Reddy fell down and was shifted to M.G.M. Hospital, Warangal where he was declared dead. The staff of the society cleaned the bloodstains and on the phone message of Sindam Venkata Ramana, Punnam Srimathi, wife of Raghava Reddy, rushed there and she gave a report to the police. Crime No.237 of 2004 of Subedari police station was registered and the scene of offence was examined and an inquest over the dead body was conducted before mediators. Photographs of the dead body were taken and the medical officer, who conducted autopsy, opined the death to be due to the injury to the neck. The knife was found to be having human blood on it and the accused was, hence, prosecuted for an offence punishable under Section 302 of the Indian Penal Code. After the appearance of the accused before the Magistrate and furnishing copies of documents to him, the case was committed to the Court of Session and a charge under Section 302 of the Indian Penal Code was framed against the accused, for which he pleaded not guilty. After P.Ws.1 to 5 were examined during trial, on an application by the prosecution in Criminal M.P. No.2031 of 2005, the 2nd accused was impleaded by the order, dated 22-12-2005 and was charged with an offence punishable under Section 201 of the Indian Penal Code after he entered appearance and was furnished with copies of documents. He pleaded not guilty and the trial against both the accused proceeded with the examination of P.Ws.1 to 12 and marking of Exs.P.1 to P.12, M.O.1 and Exs.D.1 and D.2. The accused denied the incriminating circumstances appearing in the evidence against them when they were examined under Section 313 of the Code of Criminal Procedure and no defence evidence was produced. The Court of Session rendered the impugned judgment concluding from the evidence of P.Ws.3 and 4 that the 1st accused stabbed the deceased with knife and caused his death, but as he can be attributed only with the knowledge of causing an injury which was likely to cause death and cannot be attributed with any intention, the Court of Session found him guilty only of an offence punishable under Section 304 Part-II of the Indian Penal Code. After examining the 1st accused on the question of sentence, the Court of Session imposed rigorous imprisonment for five years and a fine of Rs.100/- with a default sentence of simple imprisonment for one month, while directing set off of the period of detention already undergone under Section 428 of the Code of Criminal Procedure. In so far as the 2nd accused is concerned, the trial Court found him not guilty of the offence punishable under Section 201 of the Indian Penal Code and acquitted him. While the acquittal of the 2nd accused was not the subject of any challenge and had become final, the 1st accused preferred the present appeal contending that the highly interested and discrepant testimony of P.Ws.3 to 6 could not have been acted upon by the trial Court, more so in the absence of any evidence from the Helping Hand Society or any person connected with it and in the absence of any document showing that the accused and the deceased were staying in one room in the said institution. The grounds of appeal also pleaded that P.Ws.4 to 6 turning hostile and P.Ws.5 and 6 being only hearsay witnesses apart from P.W.3 being accomplice who screened the evidence, should have been taken into account by the trial Court to reject the case of the prosecution. P.W.4 also has to be considered to be an accomplice and the mediators did not support the prosecution and hence, the 1st accused desired that he be acquitted. Sri G. Vijaya Saradhi, learned counsel for the accused/appellant, engaged by the Andhra Pradesh High Court Legal Services Committee and Sri K. Venkateswara Rao, learned counsel representing the learned Public Prosecutor are heard. The point for consideration is whether the prosecution proved the guilt of the accused for the offence punishable under Section 304 Part-II of the Indian Penal Code beyond reasonable doubt and if so, what should be the reasonable quantum of punishment. In so far as the acquittal of the appellant for the offence punishable under Section 302 of the Indian Penal Code is concerned, there was no appeal by the State and it had become final. The de facto complainant, who is the wife of the deceased Raghava Reddy, was not an eye witness to the incident itself, but her claim about Raghava Reddy taking treatment in Helping Hand Society since 40 days prior to his death for de-addiction from alcoholism need not be suspect. She claimed that it was at about 10.30 P.M. on 12-05-2004 that the 2nd accused telephoned to her about the deceased receiving minor injuries during an incident involving the deceased and the accused. The information, thus, received by her at the earliest point of time soon after the incident, attributed the cause of the injuries to the accused and P.W.1 had absolutely no motive or reason to falsely implicate any person in such an incident. P.W.2, who is closely related to the deceased, was also not an eye witness and P.W.3, the care taker in the society, deposed about the deceased, the accused and one Surya Prakash being allotted one room in the de-addiction center and his finding the accused stabbing the deceased on the chest with a knife when he and P.W.4 rushed to their room on hearing commotion. He claimed to have been threatened by the accused with the knife and while he does not know who telephoned to the family members of the deceased, he claimed to have cleaned the bloodstains as per the instructions of the 2nd accused. The denial of Exs.D.1 and D.2 portions of his statement to the police by P.W.3 was not on any material particulars and his subsequent hostility to the prosecution case was with reference to screening of evidence by the 2nd accused and not with reference to the incident proper itself. P.W.4, another care taker in the society, also spoke about himself and P.W.3 rushing towards the room of the deceased and accused on hearing commotion and the accused coming out of the room holding a knife. He also stated about finding the deceased lying on the ground with a stab injury on the neck and chest and his informing the 2nd accused about the incident. Though he was declared as hostile and denied stating to the police as in Ex.D.2, it is well settled that even the evidence of a hostile witness can be looked at for purposes of corroboration to the extent acceptable and though he might not have witnessed the actual stabbing of the deceased by the accused as sought to be projected by the prosecution, the evidence of P.W.4 suggests no other possibility except such an attack by the accused on the deceased inside the room with no other physical possibility being disclosed even remotely by the circumstances stated by P.W.4. P.W.3 and P.W.4 have absolutely no reason or motive to falsely implicate the accused. P.W.5 was the roommate of the deceased and accused and he claimed to be sleeping till about midnight and to have been informed about the incident by the care takers on being woken up. Though he turned hostile resiling from the earlier version in Ex.P.3 to the extent that another inmate of the same room was stabbed by a third inmate of the room that night, even P.W.5 had to admit such information within an hour or two after the alleged incident. The hostility of P.W.5 may be for reasons of sympathy and cannot be taken recourse to reject the prosecution case altogether. Similar was the hostility of P.W.6 who also was informed by the care taker about the 1st accused attacking the deceased during the incident. P.W.6 stated that the 2nd accused came to the society and shifted the injured deceased to the hospital in an auto as claimed by the prosecution and even if he did not repeat what was allegedly stated by him in Ex.P.4 to the police, his evidence no way improbablises the happening of the incident itself. Similarly, the hostility of P.W.7 about what was done by the investigating officer at the scene is not of any direct consequence on the credibility of the incident itself and he admits his signature on Ex.P.5. The cause of the death of the deceased due to the injury on the neck caused with a sharp edged weapon was certified by P.W.8 in Ex.P.6 post-mortem certificate and was spoken to before the Court and the approximate time of death indicated by the medical expert tallies with the alleged time of the incident. The hostility of P.Ws.9 and 10, the independent mediators, about their being witnesses to panchanama under which the 1st accused allegedly confessed the offence to the police, is also of no consequence to the credibility of the prosecution version, as firstly the entire confession said to have been made by the 1st accused before police could never have been admissible in evidence and irrespective of any discovery of any fact in pursuance of such confession, there was no reason to disbelieve the happening of the incident as can be deduced from the evidence of the other witnesses including those who turned hostile, as since the incident, the allegation and the possibility were only about the deceased being injured fatally by the 1st accused and none else. P.W.11, the investigating officer, spoke in detail about the investigative process and P.W.12, his successor, stated about filing charge-sheet on completion of investigation and the police officers were also not having any cause for implicating the 1st accused falsely in the offence. The 1st accused cannot claim the benefit of reasonable doubt merely due to hostility of some witnesses or on the minor and insignificant discrepancies in the version, as the benefit of reasonable doubt is not a doubt entertained by a vacillating and indecisive mind but a doubt that can be reasonably entertained on a judicious analysis of the evidence placed before the Court. It may be true that the 2nd accused or the other persons connected with the society including the care takers were accused of screening the evidence by cleaning the bloodstains from the scene etc., but they cannot be considered accomplices to the 1st accused in the literary or legal sense in which the word is understood and interpreted. The alleged offence under Section 201 of the Indian Penal Code said to have been committed by the 2nd accused, assisted by others, is totally distinct and independent of the offence of injuring the deceased with a knife and the acquittal of the 2nd accused cannot, therefore, enure to the benefit of the 1st accused. The trial Court, which had the benefit of observing the demeanour of the witnesses in flesh and blood, depended on P.W.3 and P.W.4 to conclude the committal of the offence by the 1st accused and as seen from the narration of the prosecution story and as concluded by the trial Court, the 1st accused cannot be attributed with any intention to cause the death of deceased Raghava Reddy and it was only due to the emotional outburst during the sudden quarrel that the alcohol addict under treatment indulged in such a serious act of indiscretion as to stab his roommate with knife he brought for opening the coconut. There were absolutely no previous ill-feelings or enmity between the deceased and the 1st accused and the manner in which the incident occurred could not have been attributed to anything more than the knowledge of the 1st accused that by act of his stabbing he was likely to cause an injury which may be sufficient or likely to cause death of the deceased. As such, the conviction of the 1st accused for the offence punishable under Section 304 Part-II of the Indian Penal Code, is justified. However, the 1st accused was at the prime age of 36 years by the time of the offence and he was not alleged to be having any past criminal record. Though this Court granted an order of release on bail pending the appeal in Crl.A.M.P. No.937 of 2007, he appeared to be continuing in jail being unable to provide sureties as ordered by this Court, according to the learned counsel for the appellant. On the whole, he appeared to have undergone imprisonment since the registration of the crime during trial and after conviction for more than three years and the successful prosecution and subsequent confinement can be presumed to have had the desired deterrent and reformatory effect on him not to repeat such culpable conduct in future. Taking an overall view of all the facts and circumstances including the factual conclusions of the trial Court, interests of justice will be best subserved by confining the sentence to the period of detention and imprisonment already undergone by the accused. The learned counsel for the appellant stated that the appellant paid the fine of Rs.100/- imposed by the trial Court. Therefore, while confirming the conviction, the sentence has to be modified accordingly in this appeal. In the result, the conviction of the appellant/1st accused by the judgment dated 04-01-2007 in Sessions Case No.182 of 2005 on the file of the Court of Session, Warangal for an offence punishable under Section 304 Part-II of the Indian Penal Code and the sentence of fine of Rs.100/- with a default sentence of simple imprisonment for one month are confirmed. But the sentence of rigorous imprisonment for five years is modified and limited to the period of detention and imprisonment already undergone by the appellant/1st accused. If the appellant/1st accused is not required in any other case, he shall be released forthwith. The appeal is ordered accordingly. _____________________ G. BHAVANI PRASAD, J Date: 10-12-2009 Svv