THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.869 OF 2007 JUDGMENT: (Per Hon'ble Sri Justice K.C. Bhanu) This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), is directed against the judgment, dated 02.03.2007, in Sessions Case No.258 of 2006 on the file of I Additional Sessions Judge, Guntur, whereunder and whereby, the appellants/A1 and A2 were found guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “I.P.C.”) and accordingly, convicted and sentenced to undergo life imprisonment and to pay fine of Rs.2,000/- each, in default to undergo rigorous imprisonment for six months each. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: The deceased Shaik Basha is the brother of PW.1. The Deceased and Sk. Khaleel (LW.5) used to attend rod-bending work jointly. On the date of the incident, at about 08:00 PM, PW.1 received a phone call from his brother requesting him to come to near Rama Buildings situated at Amaravathi Road, Guntur, to convince the workers to sort out some problem. He asked him to send the workers to the house, so that the matter could be settled on the next day. On the same day, at about 10:00 or 10:30 PM, one Shaik Ashee, wife of the deceased, came to his house and enquired him the whereabouts of the deceased. Then he went to Jai Andhra Center, near Jinna Tower, Guntur, in search of the deceased and he also searched some other places. Ultimately, he found his brother lying near the Casino Bar. He also found one napa slab near the body. He took his brother to the Government General Hospital, Guntur, and within three hours thereafter, the deceased succumbed to the injuries. Then he lodged a complaint with the police, PW.11, who registered a case and informed about the registration of the case to the Inspector of Police, PW.12. PW.12 on coming to know about the death of the deceased from PW.11, visited the scene of occurrence situated in front of the house bearing Door No.11-4-60 near Casino Bar, Raja Gardens, Guntur. He posted a constable to guard the scene of occurrence and observed the scene of occurrence in the presence of PW.7 and others. He seized blood stained napa stone, blood stained earth, control earth, and got the scene of occurrence photographed through PW.8. Thereafter, he proceeded to the Government General Hospital, Guntur, and conducted inquest on the dead body of the deceased. After inquest, he sent the dead body of the deceased to post-mortem examination. He examined PWs.1 to 6 and recorded their statements. On 27.01.2006, he arrested A1 and A2 near Gandhi Park, Guntur. Later the accused were produced before IV Additional Judicial Magistrate of First Class, Guntur. The material objects seized were sent to the Regional Forensic Science Laboratory for examination and report. After receipt of report from the Regional Forensic Science Laboratory and after completion of investigation, he filed charge sheet. 3. The learned Sessions Judge framed the following charges against the accused: "FIRSTLY THAT you A1 and A2 on the 16th day of January, 2006 night at about 11:00 PM on the road to the west of Casino Bar in front of D.No.11-4-60 Rajas Garden, Guntur, did commit murder by intentionally or knowingly causing the death of Shaik Basha, son of Nanna, 32 years, Kummari Bazar, Old Guntur to wit. A2 of you picked up Napa stone and beat on the head of deceased Shaik Basha, and that you A1 and A2 thereby committed an offence punishable under Section 302 of the Indian Penal Code and within any cognizance; OR IN THE ALTERNATIVE THAT you A1 and A2 on the 16th day of January, 2006 night at about 11:00 PM on the road to the west of Casino Bar in front of D.No.11-4-60 Rajas Garden, Guntur, in pursuance of the common intention of doing away with the life of Shaik Basha (deceased), did commit murder by intentionally or knowingly causing the death of Shaik Basha, son of Nanna, 32 years, Kummari Bazaar, Old Guntur to wit. A2 of you dealt a blow on the fore head of deceased Shaik Basha and A1 of you picked up Napa stone and bent on the head of deceased Shaik Basha, and that you A1 and A2 thereby committed an offence punishable under Section 302 read with 34 of the Indian Penal Code and within my cognizance." When the above charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined PWs.1 to 12 and got marked Exs.P-1 to P-8 besides case properties M.Os.1 to 3. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same and no evidence either oral or documentary was adduced on their behalf. 6. The trial Court accepting the evidence of PW.4 coupled with the evidence of doctor and also the evidence of PWs.5 and 6, found the accused guilty of the offence punishable under Section 302 I.P.C. and accordingly, convicted and sentenced them as stated above. Challenging the same, the present Criminal Appeal has been filed. 7. Now the point for determination is whether the prosecution proved its case against the accused of the offence punishable under Section 302 I.P.C beyond all reasonable doubt and whether the judgment of the trial Court is correct, legal and proper? 8. Learned counsel appearing for the appellants contended that PWs.3 to 6 are interested witnesses and their evidence is not consistent with regard to the actual attack on the deceased; that as the dead body of the deceased was traced near the Casino Bar, it can be inferred that the deceased was attacked by his enemies, and the police miserably failed to trace out the real culprit and foisted a false case against the accused; that PWs.4 to 6 are strangers to the accused; that no test identification parade was conducted; that the accused and the deceased are strangers; that there is no other impetus for the accused to kill the deceased; that one Sk. Khaleel, who is friend of the deceased, was suspected to be the assailant of the deceased in the first instance, which can be seen from the First Information Report, Ex.P6; that therefore, there are any number of inconsistencies in the evidence, so as to doubt the case of the prosecution; that it is not safe to place an implicit reliance on the evidence of PWs.3 to 6 and hence, he prays to set aside the conviction and sentence recorded against the accused. 9. On the other hand, the learned counsel representing the learned Public Prosecutor contended that the presence of Pw.4 is very much established beyond doubt; that a quarrel ensued between PW.4 and the deceased before the relevant time of incident and therefore, there is every reason for him to be present at the time of incident; that further, PWs.5 and 6, who are the rickshaw pullers, had a clear opportunity to see the incident in question; that there is no other reason for these witnesses i.e., PWs.4 to 6 to speak false against the accused, so as to implicate them falsely leaving the real assailant in a case of this nature; that the death of the deceased was due to the head injury, which was spoken to by the doctor; that the evidence of PWs.3 to 6 would clearly go to show that it is the accused and none else, who caused injuries on the head of the deceased; that the trial Court after an elaborate consideration of evidence on record, rightly found the accused guilty and there are absolutely no grounds to set aside the conviction and sentence recorded against the accused and that therefore, he prays to dismiss the Criminal Appeal. 10. PW.7 is one of the inquest mediators, who was present when the police conducted inquest on the dead body of the deceased under Ex.P2. On 17.01.2006, in the Government General Hospital, Guntur. The inquest mediators in Coloumn No.15 of the inquest report opined that the deceased died as a result of head injury. The opinion as spoken to by PW.7 and recited in Ex.P2 remained unchallenged. 11. Thereafter, the dead body of the deceased was subjected to autopsy. PW.10 is the doctor who conducted Autopsy on the dead body of the deceased and found the following ante-mortem injuries: "1) Abrasion 4 x 3 cms with dried red scab present over middle of dorsum of left hand. 2) "V" shaped sutured wound present over left parietal region of scalp with each limb measuring 5 cms in length, with 5 sutures and trimming, with free limbs present towards forwards present 2 cms, in front of left parietal eminance, on cut section contusion of scalp of 11 x 10 cms. present over left parietal region of scalp, bluish red in colour. A punctured wound of 4 x 3.5 cms. size, present over left parietal region of skull present 2.5 cms. in front of left parietal eminence entered into the cranial cavity. The fractured bony fragments not present in situ. An extradural haematoma of 9 x 8 x 1 cms. size, present over left parietal region of brain. 3) Contusion of 7 x 6 cms. present over right side of fore-head 3 cms, above the outer 2/3rd part of right eye-brow on cut section. The underlying subcutaneous tissues show diffused contusion, bluish red in colour. 4) On reflection of scalp percarnial Haemotoma of 12 x 9 x 1.5 cms. size, present over front parieto temporal regions of scalp on right side. 5) On dissection: a) Diffused subdural and sub-arachnoid Haemorrahage present all over the brain. b) A Radiating fissured fracture of 18 cms length present over middle cranial fossa of base of skull extending from lower part of punctured wound of left side of skull, crossed the middle cranial fosa, pitutary fosa and middle carnial fosa on right side transversely extended up to the temporal region of skull on right side." The doctor opined that the cause of death of the deceased to the best of his knowledge and belief was due to Cardio Respiratory failure, as a result of head injury. He issued Ex.P5, Post-mortem Examination Report. Nothing has been elicited to impair the credibility of the evidence of doctor. Even the accused have not disputed about nature and cause of death of the deceased. From the above medical evidence, homicidal nature of death of the deceased is established. 12. Now it has to be seen whether the accused are the assailants of the deceased or some other person caused the injuries. PW.1 set the criminal law into motion by giving Ex.P1 - complaint. He is not an eye witness to the incident, because when the wife of the deceased came and requested him to find whereabouts of the deceased, then he searched for the deceased in several places and ultimately, found the body of the deceased near Casino Bar in Guntur. Immediately, he lodged the report. Two or three hours prior to the incident, the deceased telephoned to PW.1, who is no other than his brother. At that time also he did not state about any impetus for the accused to cause injuries to him. On the other hand, the report would go to show that he was suspecting one Sk. Khaleel, who was accompanying the deceased. Therefore, the evidence of PW.1 and the recitals in Ex.P1 are not at all relevant for the purpose of deciding the facts in issue. 13. PW.2 speaks about the earlier incident that took place near Jinna Tower Center, Guntur. On the date of incident, when PW.4 came there and was answering calls of nature, at that time, one person picked up a quarrel with PW.4 and tied him to the telephone pole, and at that time the said person sat on the pial when PW.4 answering calls of nature. In the meanwhile, A1 came there and questioned the person who tied him to the telephone pole. The said person beat A1, and thereafter, A1 and A2 along with the said person proceeded towards Casino Bar, and PW.4 and one Nallodu followed A1, A2 and the said person. So, his evidence is not much helpful to prove the case of the prosecution, for the simple reason that he did not identify the deceased as the person who tied PW.4 to the pole. But his evidence can be taken into consideration along with the evidence of PWs.4 to 6, who saw the deceased tying PW.4 to the pole. 14. PWs.3 to 6, who were the rickshaw pullers, were examined to show that preceding the incident another incident took place near Jinna Tower Center. Thereafter the actual incident took place near Casino Bar near Raja Garden, Guntur. The evidence of PWs.3, 5 and 6 is very clear that on 16.01.2006 at about 10:30 PM, while they were present at Jinna Tower Center, Guntur, the deceased Basha quarrelled with PW.4 on the ground that he (PW.4) passed urine on the deceased and later tied him to a telephone pole; then PW.4 raised hue and cry; at that time A1 and A2 came to the spot and untied PW.4; on that the deceased picked up quarrel with A1 and A2 for the reason that they untied PW.4; later deceased, A1 and A2 proceeded towards Casino Bar; then A1 and A2 beat the deceased with napa slab behind Casino Bar, due to which the deceased fell down; A1 and A2 requested PW.4 to beat the deceased so as to take vengeance and thereafter, A1 and A2 proceeded towards Liberty Theatre Centre. The evidence of PW.4 is to the effect that while he was answering calls of nature at 10.30 P.M. near Jinna Tower, deceased picked up quarrel on the ground that he passed urine on the deceased; deceased also tied PW.4 to a pole; he raised cries and on hearing those cries, accused came and untied him; both the accused and the deceased proceeded towards Casino Bar and at that place, both the accused beat the deceased. PWs.3 to 6 are rickshaw pullers. They have no rancor or grouse against the accused, so as to implicate them falsely in a case of this nature. They are totally independent witnesses. The fact that a rickshaw stand is located near Jinna Tower Center, Guntur, is not in dispute. The scene of occurrence is very near to the Jinna Tower Center, Guntur. PW.3 knows both the accused, but he had prior acquaintance with the deceased. Whereas, PW.4 had seen the accused on one or two occasions and he came to know the deceased as Subhani. PW.5 knows A1 and A2. Some body told that the name of the deceased is Basha. PW.6 identified both the accused as the persons who followed the deceased. From the evidence of PWs.3 to 6 it is clear that the accused followed the deceased and when they reached near Casino Bar, it is the accused who beat the deceased with napa stone. They have no grouse or enmity against the accused. Similarly, they have no friendship or close acquaintance with the deceased, so as to support the case of the prosecution. The presence of PWs.3, 5 and 6 preceding the incident and at the time of incident is quite probable and natural. It is possible for them to follow the deceased and accused while they were proceeding towards Casino Bar, as there was some altercation took place between the accused and the deceased at Jinna Tower Center, Guntur. Perhaps, that is the reason why the trial Court has placed reliance on the evidence of PWs.3 to 6, which would clearly go to show that A1 and A2 beat the deceased with a napa slab and as a result of said beating he fell down. Therefore, from the evidence on record, it is clear that it is accused who have caused injuries on the head of the deceased with a napa slab. 15. Now, it has to be seen whether the accused committed an offence of murder or culpable homicide not amounting to murder. In the facts and circumstances of the case, admittedly, A1 and A2 are strangers to the deceased. They have no prior enmity with the deceased. Similarly, there had been no disputes between them prior to the date of incident. The meeting of the accused with the deceased appears to be a chance meeting, because the deceased thought that PW.4 passed urine on him and he tied PW.4 to the telephone pole. Then PW.4 raised hue and cry. The accused, who were present at that time, came there and untied PW.4 from telephone pole. Then all the persons proceeded towards Casino Bar. At that time, again a quarrel ensued between the deceased on one hand, and the accused on the other hand. In a heat of passion, upon sudden quarrel, the accused took up napa slab, which was readily available at the scene of occurrence, and beat on the head of the deceased and left that place. They were not armed with any weapons when they went to the Jinna Tower Center in the first instance and thereafter, when they were proceeding towards Casino Bar also they were not armed with any weapons. Therefore, without any premeditation, in a sudden fight in a heat of passion, upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner, the act was committed. Therefore, the offence under Section 302 I.P.C. is not made out, because the accused had no intention to cause the death of the deceased or knowledge that their acts would likely to cause death of the deceased in all human probability. The facts and circumstances would clearly reveal that upon a sudden quarrel the accused picked up a napa slab at the scene of occurrence and beat on the head of the deceased. But it can be said that they must have knowledge that their acts may likely to cause the death of the deceased, because they used the weapon of offence napa slab and beat on the head of the deceased. Therefore, the culpable homicide does not amount to murder. The act of the accused falls under Exception 4 of Section 300 I.P.C., which is punishable under Section 304 Part II I.P.C., Hence, the accused committed an offence punishable under Section 304 Part II I.P.C. 16. In the result, the Criminal Appeal is partly allowed setting aside the conviction and sentence recorded by the I Additional Sessions Judge, Guntur, in Judgment, dated 02.03.2007, in Sessions Case No.258 of 2006, against the appellants/A1 and A2 for the charge under Section 302 I.P.C. However, the appellants/A1 and A2 are found guilty of the offence punishable under Section 304 Part II I.P.C. and accordingly, they are convicted and sentenced to undergo rigorous imprisonment for a period of five years while maintaining the fine and default sentence imposed by the learned Sessions Judge. Period of remand underwent by the appellants/A1 and A2 during investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. _______________ K.C. BHANU, J _____________________________ N.R.L. NAGESWARA RAO, J December 24, 2010 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FOURTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.869 OF 2007 Between: T. Balakrishna and another ..... APPELLANTS AND The State of Andhra Pradesh ....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.869 OF 2007 (Per Hon'ble Sri Justice K.C. Bhanu) December 24, 2010