THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELGANGO Crl.A.No. 1625/2007 Dt.14-7-2011 Krovi Ravi Sankar @ Ravi ..Appellant/A-1 ..Appellant/accused V. The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., at Hyderabad. ..Respondent/complainant ..Respondent/complainant The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No. 1625/2007 JUDGMENT (per the Honourable Justice A.GOPAL REDDY) The appellant who figured as A-1 along with (1) Kola Venkateswara Rao @ Chichi-A-2 and (2) Jetty Murali Krishna-A-3 were put to trial for the offence under Section 302 r/w 34 IPC in SC No.193/2005 on the file of VI Additional Sessions Judge, Guntur. The learned Sessions Judge, by judgment dt. 24-10-2007, while acquitting A-2 and A-3 for the offence punishable under section 302 r/w 34 IPC convicted A-1 for the offence punishable under Section 302 IPC and sentenced him to suffer imprisonment for life and also to pay a fine of Rs.5000/-, in default to suffer rigorous imprisonment for a period of one year. Challenging the conviction and sentence recorded against Accused No.1, he preferred the present appeal. The substance of the charge framed against the accused (A- 1 to A-3) is that on 8-9-2004 at about 4 PM at Ettu Road Center, Guntur, A-1 by intentionally or knowingly caused the death of Kakarla Venkaiah (hereinafter referred to as “the deceased”) by stabbing him with broken empty cool drink bottle twice on his throat and A-2 and 3 in furtherance of common intention to commit murder by caught hold of the deceased and thereby committed the offence punishable under Sections 302 r/w 34 IPC. The prosecution story, as unfolded during the trial, which led to the conviction of the appellant/A-1, is as follows: P.W.14 is the mother of the deceased. According to her, there were no disputes between the deceased and the accused. According to P.W.1 on 8-9-2004 at about 4 PM while he was doing business in the pan shop of his junior paternal uncle’s son, which was situated by the side of Nagarjuna Wine Shop, A-1 to A-3 came to his shop and purchased cigarettes. Later, they went inside the bar. The deceased came to the pan shop of P.W.1. A-1 while going into the wine shop had an altercation with the deceased and thereafter he went inside the bar. According to P.W.2, when A-3 asked A-1 to get mutton curry, A-1 went to the nearby hotel to get mutton curry. Within 10 minutes later A-1 came inside the bar. A-1 broke thumps up bottle after consumption of liquor. A-1 came out with a broken cool drink bottle and stabbed on the throat of the deceased with that bottle. The deceased died on the spot. While A-1 stabbing the deceased, A-2 and A-3 were present by his side. A-2 and A-3 while standing by the side of A-1 were uttering “PODU NAKODUKUNI”. P.W.1 at about 4-30 PM went to Lalapet Police Station and presented Ex.P-1 and the same was registered as Cr.No.198/2004 under Section 302 r/w 34 IPC. Ex.P-15 is the First Information Report. P.W.18 took up further investigation. After securing mediator-P.W.13, P.W.18 proceeded to the scene of offence and prepared an scene observation report covered under Ex.P-9. He prepared rough sketch of the scene covered under Ex.P-16. At the scene of offence, P.W.18 seized M.Os.1 to 7. On 9-9-2004 he held inquest over the dead body of the deceased in the presence of P.W.13. Ex.P-10 is the inquest report. After conduct of inquest, P.W.18 sent the dead body for postmortem examination. P.W.15 who is Tutor in Forensic Medicine, Guntur Medical College, conducted autopsy over the dead body of the deceased and issued postmortem certificate covered under Ex.P-13 opining that the cause of death was due to hemorrhage and shock as a result of injury to the neck. P.W.18 arrested the accused on 12-9-2004 and recovered M.O.9-the cool drink bottle and also M.O.10-motor cycle alleged to have been used by the accused. After receipt of the reports, the successor of P.W.18 filed the charge sheet before IV Additional Munsif Magistrate, Guntur. Learned Magistrate took the charge sheet on file as PRC No.1/2005 and committed the case to the Sessions Division of Guntur District as the offence is exclusively triable by Court of Sessions. The learned Sessions Judge took the case on file as SC No.193/2005. The learned Sessions Judge on hearing the prosecution and the accused, framed a single charge for the offence punishable under Section 302 r/w 34 IPC against the accused, read over and explained the same to the accused in Telugu, for which the accused pleaded not guilty and claimed to be tried. To substantiate the charges, the prosecution has examined P.Ws.1 to 18 and got marked Exs. P-1 to P-17 besides the case property M.O.1 to M.O.10.. After closure of prosecution side evidence, the accused were examined under Sec. 313 Cr.P.C., and they denied the incriminating material appearing against them in the evidence of prosecution witnesses. On behalf of the defence, no evidence, either oral or documentary, was adduced. The trial court accepting the evidence of prosecution witnesses found A-1 guilty of the offence punishable under Section 302 IPC and accordingly convicted and sentenced him as aforementioned. Whereas A-2 and A-3 were not found guilty of the offence punishable under Sec.302 r/w 34 IPC. Challenging the conviction and sentence, A-1 preferred the present appeal. Learned counsel for the appellant/A-1 contends that P.Ws.2, 6,7,8,9,10 and 12 did not support the prosecution case and were declared hostile. He further contends that P.W.1 is a planted witness as after drafting Ex.P-1-written report, he was not examined by the police as admitted by him in his evidence, and P.W.1 stated that for the first time he stated to the police about the incident. P.W.2 is also not an eye witness to the occurrence, as one Prasad of Pan Shop told him that A-1 stabbed the deceased. P.W.3 also stated that for the first time he informed the police about the incident. Thus, P.Ws.1 to 3 made parrot like statements and their evidence is not reliable. P.W.15- Doctor who conducted autopsy over the dead body of the deceased found only one injury and stomach contains semi digested food present emitting alcohol smell. In view of the evidence of P.W.15, it is clear that there occurred a quarrel between the accused and the deceased and there is no pre-meditation and therefore, the appellant cannot be convicted for the offence under Sec. 302 IPC, but at the most he can be convicted for the offence punishable under Sec. 304 Part-II IPC. Learned Additional Public Prosecutor while sustaining the judgment under appeal contended that the conviction and sentence recorded against the appellant based on the evidence adduced by the prosecution does not suffer from any infirmity and there were no ground to interfere with the conviction and sentence recorded against the appellant. Now the point for consideration is: “Whether the conviction and sentence recorded by the trial court is sustainable and the prosecution proved its case beyond all reasonable doubt against the appellant/A-1? P.W.1-Pokala Kishore who lodged report covered under Ex.P-1 categorically stated before the court that police drafted Ex.P-1 report. Whereas P.W.17-Sub-Inspector of Police stated that P.W.1 presented a written report covered under Ex.P-1 and he registered the same as a case in Cr.No.198/2004. In Ex.P-1, it is stated by P.W.1 that daily the deceased used to come to his pan shop and now and then A-1 to A-3 used to purchase cigarettes in his bunk. On 8-9-2004, while A-1 and his friends entering into the bar at 4 ‘o clock, one Kakarla Venkataiah ( deceased ) picked up a quarrel and the deceased asked A-1 “go and do whatever you can”. Later the deceased came outside and while he was making a phone call at STC booth, A-1 came with a broken cool drink bottle along with A-2 and A-3 and another saying “who is the rowdy here” and so saying stabbed on the throat of the deceased with broken cool drink bottle. He further stabbed the deceased on his throat saying “do you know whom am I?”. A-1 asked the remaining persons to stab that fellow. A-1 again stabbed the deceased on his ear. Then the deceased fell down and breathed his last. In the evidence before the court, P.W.1 stated that A-1 to A-3 came to his pan shop and purchased cigarettes, and went inside the bar. Later the deceased came to his pan shop to telephone. Later A-1 came to his pan shop and purchased some articles in Lokesh Hotel situated by the side of their shop. While A-1 going into the bar shop picked up a quarrel with the deceased and then went inside the bar. Then A-1 came out of the bar with a broken cool drink bottle and stabbed the deceased on his throat with that broken cool drink bottle. The deceased died on the spot. Ex.P-1 is the report given by him. When A-1 was stabbing the deceased, A-2 and A-3 were present by his side and uttering “Podu Nakodukuni” (stabbed that fellow). In his cross-examination, P.W.1 stated that police drafted Ex.P-1 report; he did not telephone to the police station about the incident; for the first time he stated to the police about the incident; after drafting of Ex.P-1 report, he was not examined by the police; he cannot write Telugu properly though he passed 7th class; there were no altercations or any galata between the accused and the deceased prior to the date of incident; about 10 persons went to the police station on that day but he cannot say the names of other persons who came to the police station; all the persons who came to the police station along with him witnessed the incident and they were also examined by the police. He further stated that throughout night he was in the police station on that day and on the next day morning he came out of the police station and persons who came along with him were also present in the police station throughout at that night. The Deputy Superintendent of Police was also present at the police station. P.W.2-Chitrala Satyanarayana, who is a supplier in the Nagarjuna Bar, Guntur, stated that on 8-9-2004 at about 3-30 PM he supplied liquor to A-1 to A-3 and he does not know the names of A- 1 to A-3. When A-3 asked A-1 to get mutton curry, A-1 went to the nearby hotel and get mutton curry. 10 minutes later, he (A-1) came inside the bar and broke the thumps up bottle. When he asked A-1 that it is not proper on his part, A-1 stated that it was only for a show and later went out of the bar and A-2 and A-3 after taking liquor that remained in the glasses. While he was collecting glass pieces, he heard cries from outside and he went out of the bar and found the deceased lying dead. One Prasad of pan shop told him that A-1 stabbed the deceased. At that stage, P.W.2 was declared hostile. P.W.3, who is a cousin of the deceased, stated that he went to Lokesh Hotel and while he was drinking the tea, he heard cries and went out side and saw A-1 stabbing the deceased on his throat with a broken cool drink bottle and A-2 and A-34 were also present by the side of A-1 ie., behind him. He admitted that he does not know A-1 to A-3 prior to the date of incident but for the first time he saw A-1 to A-3 at the time of incident and again now in the court. P.W.4-Adapa Ramana Rao, who is working as Mutha worker in Fertiliser Shop at Patnam Bazar in Guntur, stated that on the date of incident when he was going to Lokesh Hotel, the deceased met him and asked him to come to drink tea. He then went to telephone booth while he was drinking tea at that hotel. He heard big galata and when he saw towards that galata, A-1 stabbed the deceased with soda bottle. When he went there, A-1 and two others went away on a motor cycle. P.W.5-A. Panduranga Rao, who claims to be present at the pan shop at the relevant point of time, stated that he saw one person having red in complex stabbed the decreased with a glass bottle and he identified A-1 in the court who stabbed the deceased and on stabbing the deceased fell down. In the cross-examination, he admitted that there were no other persons by the side of A-1 at that time. After pushing each other, A-1 went into a lane and the deceased went to telephone. Before the deceased had gone to the telephone booth, they both altercated with each other. He further stated that while they were pushing each other, no body went near them. Police came to the place of incident at 4-10 PM. Constables first came and later Circle Inspector and Sub-Inspector came there in one jeep. P.W.11-Gandu Sitaiah deposed that he came to know about A-1 stabbing the deceased at about 4-30 PM and A-1 was doing acts of rowdy sheeter in their centre, for which the deceased did not like it. P.W.13-Adapa Siva Prasad, who is a panch witness to the inquest conducted by the police and seizure of M.Os.1 to 7 and scene of offence observation report covered under Ex.P-9. P.W.15-Ch. Lakshman Rao is a Doctor who conducted postmortem examination over the dead body of the deceased. He found the following injury on the body of the deceased: “Irregular shaped stab injury with clean cut margins measuring 7 x 3 cms into bone deep extends obliquely from front of lower part of left and middle of the neck to upper part of front of left side of the chest with cut in muscles, vessels and trachea, esophagus, left clavicle and T2 vertebra blood and blood clots at injury side directed form left to right downwards on to right side.” He issued postmortem certificate covered under Ex.P-13 opining that the cause of death was due to shock and hemorrhage as a result of stabbing injury to neck. He further stated that stomach contains about 300 grams of semi digested food emitting alcohol smell. In the cross- examination, he stated that he has not done the three different glass pieces collected at the time of postmortem examination are suited to M.O.9 glass bottle. P.W.17 is the investigating officer who registered First Information Report covered under Ex.P-15 on the basis of Ex.P-1 written report presented to him. In the cross-examination, he stated that in column No.7 of Ex.P-15 four accused were shown but in Ex.P-15 it was written that four persons ran away towards Nallacheruvu. He denied that he himself dictated Ex.P-1 report substituting A-1 in the place of real offender. P.W.18 is the Circle Inspector of Police. He stated that P.W.17 informed him on 8-9-2004 at about 4-45 PM that he registered a case of murder. On receiving Ex.P-15, he secured the presence of P.W.13, L.W.17-Gade Nageswara Rao and proceeded to the scene of offence. He observed the scene of offence in the presence of mediators. He seized blood stained napa stone-M.O.5 and controlled Napa stone, blood stained brick pieces-M.O.6 and controlled brick pieces. He seized M.Os.1 and 2-two pairs of chappals from the scene of offence. He also seized four glasses (M.O.4); a half bottle liquor- M.O.7 and broken small cool drink bottle pieces found on the table. He got the scene of offence photographed with the help of photographer. He prepared scene observation report covered under Ex.P-9. He sent all the material objects collected to the Regional Forensic Science Laboratory. Ex.P-17 is the RFSL report. The material objects that were seized at the scene of offence and also from the accused were sent to RFSL for examination and the same were marked as M.Os.1 to 9 before the trial court. According to FFSL report (Ext. P-17), blood was found on the pieces of glass and blood stains pant and shirt of the deceased and the blood group is “A” group. P.W.13 is one of the inquest mediators present when the police conducted inquest covered under Ex.P-10. The inquest panchayatdars opined that the deceased died due to the injuries received by him. The evidence of P.W.13 and the recitals in Ex.P-10 with regard to the cause of death of the deceased remained unchallenged. P.W.15 is the Doctor who conducted autopsy over the dead body of the deceased on 9-9-2004 and found the only one injury, as stated above. He opined that the deceased died due to shock and hemorrhage as a result of stabbing injury to neck. He further stated in Ex.P-13 that stomach of the deceased contains 300 gms of semi digested food emitting alcohol smell. Ex.P-13 is the postmortem report. So from the above evidence, death of homicidal nature is established beyond all reasonable doubt. From the above narrative evidence, it is clear that the prosecution is able to prove that prior to the incident, a quarrel ensued between the deceased and the accused near the pan shop of P.W.1, as stated by P.Ws.1 and 5. The presence of the accused at the scene of offence is established by the prosecution by leading evidence of P.Ws.1,3,4 and 5. They categorically stated that A-1 stabbed the deceased with broken cool drink bottle. P.W.15-Doctor found only one injury on the body of the deceased. From the evidence of P.W.15 coupled with the postmortem certificate covered under Ex.P-13, it is clearly established that the deceased received only one injury and stomach contains semi digested food emitting alcohol smell. In that view of the mater, we are of the view that prosecution has clearly established that A-1 and the deceased in a drunken state of mind quarreled with each other and a sequel of the quarrel, the accused stabbed the deceased and killed him. If an act is committed without any premeditation upon a sudden quarrel and without the offender being taken undue advantage of the situation or acted in a cruel or unusual manner, then the case squarely falls under the exception-4 of Section 300 IPC. Therefore, the appellant No.1/A-1 is liable to be convicted under Sec. 304 Part-II IPC. It is trite law that Section 304 Part II IPC comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death. The conviction and sentence imposed on appellant/A-1 for the offence under Sec. 302 IPC by the Sessions Judge, Guntur, in S.C.No.193/2005, is set aside, but however he is found guilty for the offence under Sec. 304 Part-II IPC and sentenced to undergo rigorous imprisonment for a period of seven (7) years. The period already undergone by appellant/A-1 shall be given set off as per Se. 428 Cr.P.C., The sentence of fine is unaltered. The Criminal Appeal is partly allowed. --------------------- A.GOPAL REDDY,J ----------------- RAJA ELANGO,J DT.14-7-2011 Kmr