THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL CRIMINAL APPEAL No.125 of 2006 BETWEEEN: Sandra Sambaiah … Appellant AND State of A.P., rep. by Public Prosecutor … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.125 of 2006 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 five years and fine of Rs.500/-. Questioning the same, the accused filed this appeal. 2. PW2 is first wife of the accused. The deceased Bolla Ramulu is father of PW2. It appears that marriage between PW2 and the accused was a love marriage. Subsequently, there were differences between them and in the mediation of elders, a document was executed styling the same as divorce document between the couple. PW2 contends that her signatures were obtained on the documents without informing contents therein. Subsequently, the accused married one Manjula as his second wife and was leading marital life with her. It is alleged that on 29.03.2004, there was quarrel between PW2 and Manjula, in which PW2 scolded and abused Manjula for marrying the accused and that Manjula informed the same to the accused and that the accused became angry and at about 5:30 P.M., when PW2 went to Kirana shop, the accused scolded her and dragged her to his house and that the said information was conveyed by PW2’s brother- PW3 to his parents who went to the accused and rescued PW2 from hands of the accused and scolded Manjula and that thereupon, the accused became wild and that when the deceased and his wife PW1 were returning home along with PW2, the accused picked up a pestle and beat on head of the deceased, due to which the deceased fell down with head injury. The deceased was shifted in the auto of PW7 to Mamatha Nursing Home at Wardhannapet and from there, on the advice of the Doctor, the deceased was shifted to MGM Hospital, Warangal, for treatment and that while undergoing treatment, the deceased succumbed to injuries on 30.03.2004. Thereupon, PW1 gave Ex.P1 report to Sub-Inspector of Police, Rayaparthy Police Station, who is PW13. PW13 registered Ex.P1 as case in Crime No.22 of 2004 under Sections 302 and 498-A I.P.C. and issued Ex.P13- FIR. He held inquest on dead body of the deceased in the presence of panchayatdars, including PW10 under the cover of Ex.P10- inquest report. He examined witnesses during investigation. On 26.04.2004, PW13 arrested the accused in the presence of mediators, including PW12 and got his confessional statement recorded and in pursuance of the said confessional statement, PW13 recovered MO.1- pestle from the pendal under the cover of mediators report. Ex.P12 is admissible portion of statement of the accused contained in that mediators report. Plea of the accused is one of total denial and not guilty. 3. In support of the prosecution case, PWs 1 to 5 were examined as eye witnesses to the occurrence. PW6 is Kirana shop owner at whose kirana shop, the quarrel between PW2 and the accused took place, in pursuance of which the accused dragged PW2 towards his house. The lower Court did not place reliance on evidence of PWs 3 to 5 and relied upon evidence of PWs 1 and 2 and found the accused guilty of the above offence. It is contended by the appellant’s counsel that as per evidence of PWs 1 and 2, the accused dealt a blow on head of the deceased from behind and therefore, there was no possibility of the deceased sustaining injury on forehead and right eye of the deceased and that the prosecution is not coming with true version of the offence. Even though the lower Court did not place reliance on evidence of PWs 3 to 5, it is open to the prosecution to contend in this appeal that their evidence is reliable and their evidence was not relied upon by the lower Court for untenable reasons. The entire case rests on evidence of PWs 1 to 5. 4. PW14 is Associate Professor in Forensic Medicine, Kakatiya Medical College, Warangal. He conducted autopsy on dead body of the deceased on 30.03.2004 and issued Ex.P15 P.M (Post Mortem) certificate. He opined that cause of death of the deceased was head injury and that the said injury can be caused with a weapon like MO.1 and that it is sufficient to cause his death. The injury found on the deceased as noted in Ex.P15 is as follows: “One laceration measuring 3 x 1 cm x bone deep present over the right side temporal region. On reflexion scalp contusion measuring 13 x 9.5 cm present over the right temporo fronto parietal region depressed comminuted fracture of right temporal bone. The fracture is extending into the base of skull involving anterior cranial fossal, subdural and sub archenoid haemorrages are present over the right side brain.” 5. The above description of fatal injury on head of the deceased indicates that seat of injury is on right side temporal region. It is not on front side of the skull. Because of the hit on temporal region, the impact was on right temporo fronto parietal region. Evidence of PWs 1 and 2 is also to the effect that the accused dealt a blow with MO.1- pestle on right side of head of the deceased from his backside. It is evidence of PW1 that PW3 came and informed them about the accused catching hold of hand of PW2 and dragging her towards his house and that thereupon, she and the deceased went there and found the accused beating PW2 and that they intervened and were taking PW2 to their house and that the accused brought one pestle and dealt a blow on right side of head of the deceased and that the deceased fell on ground. In cross-examination also, she deposed that they went to house of the accused at about 5:30 P.M. and that within two minutes, they intervened and were bringing back PW2 and that PWs 4 and 5 were standing there and witnessing the incident and did not intervene when the accused was beating PW2 and that the incident took place in front of house of the accused and that when they were taking their daughter, the accused beat the deceasd from right side. She says that there was no scope for them to prevent the accused from beating the deceased, as it was sudden. PW2 also deposed that at about 5:00 P.M., she went to Kirana shop and that the accused came there and abused her for abusing Manjula and dragged her to his house by beating her and that PW3 tried to intervene and the accused pushed him aside and that the accused called Manjula and asked her to beat her with chappal and that both of them began beating her and that when her parents saved her from the accused and when they were taking her along with them, the accused brought pestle and dealt a blow with pestle on right side of head of the deceased and that the deceased fell down. In cross-examination, she says that within two minutes after arrival of her father, he was beaten by the accused. She denied the suggestion that during the scuffle, her father fell on stones and received injuries. In my opinion, reasoning given by the lower Court for not placing reliance on evidence of PWs 3 to 5 is not acceptable. The lower Court commented that PWs 3 to 5 were able bodied youth and if really they were present at the scene, they could have prevented the accused from dragging PW2 to his house and rescued PW2. It is only when PW3 informed the deceased and PW1 by going to the house, both of them rushed to house of the accused. But for the information furnished to them by PW3, the deceased and PW1 could not have reached the scene of offence. Even though there were divorce papers between PW2 and the accused, PW2 is disputing the said divorce saying that her signatures were obtained on the papers without informing her of the contents therein. Therefore, PW3 was unable to use force against his brother-in-law who is the accused in order to prevent the accused from dragging and beating PW2. The only alternative for PW3 was going and reporting the matter to his parents and he reacted in that fashion. There is nothing unnatural in the conduct of PW3 in not using force against the accused and preferring to convey the quarrel between the accused and PW2 to his parents by going to his house. Similarly, PWs 4 and 5 also did not intervene between thte accused and PW2 because, they were husband and wife and it was only a quarrel between the couple. Presence of PWs 4 and 5 was also spoken to by PW1 at the scene. Evidence of PWs 3 to 5 is also to the effect that the accused dealt a blow on right side of head of the deceased with a pestle while the deceased and PW1 were taking away PW2 from the accused. On total reading of the prosecution evidence and reassessment of the same in this appeal, this Court has no hesitation to conclude that the lower Court rightly came to the conclusion in favour of the prosecution to the effect that it was the accused who hit the deceased with pestle on right side of his head causing fatal injury to him. The lower Court for its own reasons came to the conclusion that the incident may not attract the offence under Section 302 I.P.C., but attracts only the offence under Section 304 Part-II I.P.C. There are no circumstances on record either on facts or in law to find the accused not guilty of the offence. The sentence of imprisonment imposed by the lower Court is also highly reasonable. 6. In the result, the Criminal Appeal is dismissed. __________________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:09.11.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.125 of 2006 Dt:09.11.2011 ysk