HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRIMINAL APPEAL No.1774 OF 2007 Date:18-10-2011 Between 1. Avula Mareppa @ Mareppa. 2. Avula Muthyalu. 3. Avula Murali @ Chinnapalla @ Appalla. - - - Appellants/ A-1 to A-3. AND The State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad. - - - Respondent/ Complainant This court made the following : JUDGEMENT: (per the Hon’ble Sri Justice G.Krishna Mohan Reddy) This Criminal Appeal is directed against judgment of conviction and sentences imposed in Sessions Case No.69 of 2007, dated 14- 12-2007, on the file of the Court of VII Additional District and Sessions Judge, Madanapalle, Chittoor District. 2. The Appellants are A-1 to A-3 and the Respondent is the Complainant in the Sessions Case. A-1 and A-3 are brothers and A-2 is the son of A-1. For convenience sake, we refer them as arrayed in the Sessions Case. 3. A-1 to A-3 were tried for offence punishable under Section 302 IPC and A-2 was also tried for offence punishable under Section 324 IPC and A-1 to A-3 were found guilty of committing the offence and sentenced to suffer Rigorous Imprisonment for life and to pay a fine of Rs.500/- each and in default of payment of the fine amount, to suffer Simple Imprisonment for a further period of three months each under Section 302 IPC and A-2 was further found guilty of committing the offence punishable under Section 324 IPC and sentenced to suffer Rigorous Imprisonment for six months and also to pay a fine of Rs.100/- and in default of paying the fine amount, to suffer Simple Imprisonment for a further period of 15 days thereunder with a direction to set off their remand period under Section 428 Cr.P.C. and to destroy M.Os.1 to 6 marked therein after the Appeal time along with a direction that the sentences awarded against A-2 under the two counts should run concurrently, whereas aggrieved by it, the present Criminal Appeal has been preferred. 4. The prosecution version in a nutshell is as follows : The deceased in the case (M. Sreeramulu) and A-1 (Avula Moreppa @ Moreppa) used to live by rearing and selling pigs. There were money transactions between them. About 2 months prior to the date of incident in question, A-1 borrowed Rs.650/- from the deceased. When the deceased and his wife (M. Reddamma) i.e., PW.1 asked A-1 to repay the due amount, A-1 replied that his father-in-law, Pandu had to give Rs.10,000/- to him and soon after his father-in-law (Pandu) would give him the said amount, he was going to repay their due amount. About 4 or 5 days thereafter, the said Pandu went to the house of deceased, then the deceased asked Pandu to pay Rs.10,000/- to A-1 so that A-1 would clear his due amount of Rs.650/-. On the same day evening A-1 went to the house of the deceased, picked up quarrel and beat him questioning as to why he had talked to Pandu regarding the due amount. On 11-02-2006 the deceased called PW.6 (Athuluri Krishnaiah) and Athuluri Krishnaiah as elders to mediate with A-1, but A-1 was not available. On 13-02-2006 at about 07-30 p.m. while the deceased, his wife i.e. PW.1, PW.6 and Athuluri Krishnaiah were present, A-1 to A-3 went to the house of the deceased, A-1 threw Rs.650/- at the deceased and began to abuse him in a filthy language, A-2 caught hold of the scalp hair of the deceased and dragged him to a place in front of the house of PW.5 (Avula Venkata Ramana), A-1 attacked and dealt blows with iron rod on the legs of the deceased and caused bleeding injuries, due to which he fell down. Then, A-2 attacked the deceased with iron rods and caused bleeding injuries on his head. Then A-3 attacked the deceased beat with a stick on his left hand and caused bruises. When PW.1 intervened, A-2 beat with iron rod on her left thigh and caused blunt injury, due to which she ran towards Gurukula Patasala, in the meanwhile, when PW.6 and Athuluri Krishnaiah tried to interfere, A-1 to A-3 also attacked them. Further, as PW.1 along with PWs.2, 3, 5 and others went there, on seeing them, A-1 to A-3 threw away their weapons and ran away. The deceased and PW.1 were shifted to the Area Hospital, Madanapalle. On receipt of hospital intimation Ex.P-9, PW.14 (Y. Venkata Ramana) Head constable, II Town Police Station, Madanapalle, visited the hospital and recorded the statement (Ex.P-8) of the deceased. On the basis of which, PW.14 registered the case in Crime No.26 of 2006 for offence punishable under Section 324 Read with 34 IPC and took up and conducted a part of the investigation of the Case. Further, the deceased succumbed to the injuries on 21-02-2006 at 07-45 a.m. while undergoing treatment and on receiving the death intimation of the deceased, the Sub-Inspector of Police, II Town Police station, Madanapalle included Sections 302 IPC. PW.15, the Inspector of Police, Madanapalle, Urban Circle, took up and conducted further investigation of the case. 5. On behalf of the prosecution, PWs. 1 to 16 were examined and Exs.P-1 to P-17 and MOs.1 to 6 were marked and on behalf of A-1 to A-3 neither oral evidence nor documentary evidence was adduced, whereas after observing necessary formalities and examining the evidence on record, the trial Court found A-1 to A-3 guilty of committing the offence punishable under Section 302 IPC and also found A-2 guilty of committing the offence punishable under Section 324 IPC and sentenced them as stated supra, by reason of which, the present Appeal has been preferred. 6. Learned defence counsel contends that the trial Court mainly based upon the evidence of PWs.1 to 4 and 6 apart from the relevant medical evidence and other connected circumstances in order to convict A-1 to A-3 and sentenced them but their evidence is highly interested and emphatically PW.5 examined as independent witness to the alleged occurrence did not support the prosecution version and further the evidence of PWs.1 to 4 and 6 is not consistent and is marked by discrepancies which are sufficient to demolish the prosecution version and there was delay of 11 hours in giving the report to the police which was not explained properly which therefore is fatal to the prosecution version. It is further contended by him that in any case the evidence adduced amply establishes that A-1 to A-3 left the place after causing three injuries and without further attacking the deceased for the purpose of killing him and there is no sufficient evidence to the effect that they left the place without doing so as somebody intervened in the matter and the deceased died not immediately but 7 days later and therefore it is very clear that A-1 to A- 3 got no intention to kill the deceased even supposing that they got knowledge that any of the three injuries was sufficient to cause the death and therefore it is a fit case to bring it within the purview of Section 304 Part II of I.P.C. 7. On the other hand, learned Public Prosecutor contends that the evidence of PWs.1 to 4 and 6 is trustworthy and there is no reason to interfere with their evidence and there was also no need for them to foist a false case against the Accused. Further, there is sufficient material to the effect that the Accused caused the death of the deceased with a pre determined mind and the trial Court properly examined the matter and absolutely there is no reason to interfere with the judgment of conviction and sentences imposed by the trial Court. 8. Therefore, it is to be mainly examined as to : 1) Whether the prosecution placed sufficient evidence with regards to the incident in question and it is acceptable? 2) Whether the case falls within the ambit of Section 304 Part II IPC even supposing that the prosecution version regarding the incident is true? 3) Whether the conviction and sentences imposed by the trial Court are tenable or not? 9. Point No.1: With regards to the main incident, the evidence of PW.1, who is the wife of the deceased, is as follows : Their livelihood is rearing pigs and selling them. A-1, also used to rear pigs at Yerragonda. A-1 borrowed Rs.700/- from the deceased and repaid Rs.100/- promising to repay the same within a week but failed to do so. On that, the deceased went to the house of A-1 and demanded his wife to pay the due amount, then, she replied that he could collect it from A-1. On that there was exchange of words between the deceased and A-1, then the wife of A-1 complained to her (PW.1). Vulgar language was used by the deceased against her and he also caught hold of her. Further, on the same day at about 05-00 p.m. A-1 came to their house while the deceased was rearing pigs and asked him that he was ready to pay the amount and asked what was the due amount to be paid, to which the deceased replied that it was Rs.600/- and A-1 paid the same and went away. But, immediately A-1 returned to the house of the deceased in a drunken state and began to abuse the deceased and the deceased reported and also abused A-1 and then the deceased tried to pacify the situation asking A-1 why there should be a quarrel between them when the due amount was already cleared. Further, on the advice of Venkataramana and Narayana her husband returned to their house and A-1 went away. On the next day morning A-1 himself removed their hut and went to Cheekaligutta village, where A-2 and A-3 reside and informed them as if the deceased removed his hut. At about 04-00 p.m. A-3 came to the house of the deceased and abused him in a filthy language and also beat him with a stick and gave 3 or 4 blows on the deceased. When the neighbouring shepherds who were present nearby intervened and questioned A-3 as to why he was beating the deceased, he went away. Three days thereafter A-1 to A-3 came to their house, A-1 caught hold of the scalp hair of the deceased and made him to bend, then A-1 to A-3 beat the deceased with iron rods and when she tried to inform the same to the villagers, A-1 beat on her thigh. Then she returned to their hut and from there she escaped and reached the village through a different way. She further deposed that A-1 to A-3 beat her and her husband by the side of their hut and they identified the Accused in the moonlight being the neighbours in the same locality. She further deposed when some villagers came to their hut, A-1 to A-3 went away from there, then she along with some others took the deceased to the Government Hospital, Madanapalle and both of them were admitted therein. Further, on the next day morning police came to the hospital and recorded their statements and on the 9th day of the incident, her husband died. She deposed in her cross-examination that prior to the date of incident, A-3 beat her husband and Venkataramana and Narayana intervened and questioned the conduct of A-3. She asserted that there were no disputes between her husband and the Accused prior to the question of repayment of the amount. She also denied suggestion that A-1 to A-3 and themselves never resided in Yerragonda area and no such incident took place. She also deposed that several villagers came there and by then, A-2 was at the scene of offence, whereas A-1 to A-3 already left the place. She also denied that she got mentioned the names of A-1 to A-3 after seeing the so-called statement of the deceased (Ex.P-8). 10. PWs.2 and 3 deposed that on information given by PW.1 they along with others went to the spot and found the deceased with injuries and later admitted him in the hospital. PW.2 deposed in his cross-examination that the deceased was an awfully drunkard and quarrelsome person in nature and he used to be in intoxication mood always. They did not speak about the presence of A-2 at the scene of offence when they went there, which therefore is not accepted and hence not proved. The evidence of PWs. 2 and 3 is hearsay only. Similarly the evidence of PWs. 4 and 6 is also hearsay. PW.5 resident of Cheekurigutta examined as an independent witness to the incident did not support the prosecution version, hence he was declared by the prosecution as hostile witness. 11. PW.14, Head Constable of II Town P.S. at Ramasamudran deposed that on 14-02-2006 at about 05-00 a.m. he received hospital intimation (Ex.P-9) from the Government Hospital, Madanapalle and proceeded to the hospital and recorded the dying declaration of the deceased as in Ex.P-8. He also deposed that he asked the duty doctor there to certify the mental condition of the deceased to give his statement but the doctor stated that it was not necessary because the deceased was not in a critical condition and so saying did not give any endorsement in that context. It is also his testimony that on the basis of Ex.P-8, he registered the case in Crime No.20 of 2006 under Section 324 R/w 34 I.P.C. as in Ex.P-10. The statement of the deceased Ex.P- 8 is in accordance with the prosecution version. 12. PW.15 the Inspector of Police who conducted further investigation in the case deposed that on receiving necessary death information i.e. Ex.P-9 from the hospital, he included section 302 IPC and issued altered F.I.R. Ex.P-13 to all concerned. He further deposed that he conducted inquest over the dead body of the deceased between 12 noon and 02-00 p.m. (Ex.P3) and examined PWs.1 to 6 and recorded their statements in the presence of mediators and seized black checks lungi (MO.2) and waste thread (MO.3) and send the dead body for autopsy. 13. PW.12 who was working as Deputy Civil Surgeon, Area Hospital, Madanapalle, deposed that on 21-02-2006 at 04-00 p.m. on the requisition of S.H.O. II Town P.S. Madanapalle he conducted autopsy over the dead body of the deceased and found the following injuries : 1. Punctate wound of 1 cm size on both the anterior Tibial mid skin with oozing present. 2. Grade-I open fracture on both the bones of left leg present with serosaungience discharge present. 3. Contusion over the left mid fore arm was present and on dissection left ulna fracture was found. 4. Contusion over the left frontal of 2 inches, oval shaped with fitting in nature present. 5. Abrasion over the right shoulder of 2 inches in size. 6. 1 ½ inches length sutured wound on the left posterior aspect of the left ear over occipital region. He further deposed that he issued Ex.P-6 Postmortem certificate opining that the reason for the death of the deceased was due to fracture of both the bones of his left leg and injuries to his vital organs including brain. 14. PW.16, the Deputy Civil Surgeon, Area Hospital, Madanapalle deposed in his chief-examination that on 21-02-2006 at 07-30 a.m. the deceased suddenly developed breathlessness, which was not recordable, his pulse rate was feeble, he was in gasping condition and expired at 07-40 a.m. on 21-02-2006. He denied in his cross-examination that the injuries caused were not sufficient to cause the death and the death might have been caused due to further complications or sequels (embolism). He also deposed that he could not say that the sudden development may be due to infections. 15. There is no dispute with regards to the medical evidence and ultimately there is also no dispute about the actual scene of offence and inquest over the dead body, which circumstances need not be discussed further therefore. 16. With regards to the veracity of PW.1, she asserts that only with regards to non-payment of Rs.650/- by the Accused the incident took place and there were no disputes between the deceased and the accused. Significantly the alleged incident took place at about 04-00 p.m. at the house of the deceased/PW.1 on the relevant day. Therefore, the presence of PW.1 there at the relevant point of time is to be accepted. In the absence of prior enmity between the accused and the deceased it is to be ruled out that a false case was foisted against the accused leaving the real assailants of the deceased other than the accused. The evidence of PW.1 is straightforward, cogent, natural and credible. Evidence of a sole witness can be accepted when it is trustworthy. She elaborately narrated about what transpired prior to the incident about the debt and also how the incident took place bearing one noticeable discrepancy to the effect that when others rushed to the scene of offence, A2 was still there which is found to be not true which in my opinion is not grave enough to discard her evidence. Because of lapse of time, such discrepancies are bound to take place even in the evidence of truthful witness. No doubt, she is interested witness being the wife of the deceased which requires special care of scrutinizing her testimony and when she passes that test accordingly is to be upheld. She withstood strong and lengthy cross-examination giving no scope to doubt her veracity. Her evidence clearly establishes that the incident occurred only with regards to the non-payment of Rs.650/- by the Accused. The dispute between the deceased and the accused in that context very much emphasizes that in that regard the accused developed grouse which compelled them to attack and cause injuries to the deceased which subsequently resulted in his death. The significant factor is that there were exchange of hot words between the deceased and the accused and the accused went and repaid the amount and following altercation between them at that juncture the accused resorted to attack him. 17. It is also important that the medical evidence agrees with the ocular evidence with regards to the injuries received by the deceased. Further, there is satisfactory evidence from PW.14 to the effect that he recorded the statement of the deceased as in Ex.P-8, which in fact agrees with the prosecution version. The explanation given by him with regards to non-obtaining necessary endorsement from the Duty Doctor about the condition of the deceased that the Duty Doctor refused to make it on the ground that the condition of the deceased was not critical is quite acceptable. The evidence of PW.14 is to be given much significance because it is not marked by any discrepancies which is sufficient to reject his testimony and also because of Ex.P-8 agrees with the evidence of PW.1 with regards to the alleged incident. 18. Further, PW.15, Inspector of Police, Molakalacheruvu P.S. also deposed with regards to the arrest and seizure of weapons marked as MO.1 which is also to be examined in the context of the case. He testified that on 14-06-2009 he arrested A-1 to A-3 near Anjaneyaswamy Temple at Ammacheruvu mitta at about 05-30 p.m. in the presence of PW.11 and 13 and accordingly a report was prepared as in Ex.P-14. PWs.11 and 13 did not support the same version. Therefore, it is doubtful that the arrest of the accused took place in the manner stated by PW.15. However, when there is incriminating evidence against the accused about the occurrence this lacunae need not be taken seriously. 19. With regards to the application of Section 302 IPC, Section 300 IPC is to be read first, it is as follows : “Murder: Firstly Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing or- Secondly- If it is done with intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- Fourthly-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death of such injury as aforesaid.” Section 304 IPC with regards to Punishment for culpable homicide not amounting to murder, reads - “Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term. which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 20. It is pertinent to note here that the deceased died 7 days after receiving the injuries and while taking necessary treatment. Further, non-presence of others at the spot makes very clear that the accused got sufficient opportunity to cause further injuries to the deceased and see that the deceased would be done away with immediately and when it was not done by them it clearly proves that they got no real intention to do so and they thought that the injuries caused to the deceased were sufficient to satisfy their grouse in the said context. Further, the fact that the exchange of hot words took place about the repayment of debt and the accused went and repaid that debt which followed further altercation between them establishes that till that time they got no real intention to kill him in any way. It shows that if the deceased had kept his cool and exercised his discretion properly the incident would not have taken place at all. The incident appears to be occurred out of his own peril. Further, when they caused one injury on the occipital region on the head of the deceased by means of deadly weapon, which actually resulted in his death, it is sufficient to hold that they got knowledge that it was likely to cause his death. Therefore, it is a fit case to bring it within the purview of Part-II of Section 304 I.P.C. 21. The trial Court properly examined the matter with regards to the actual occurrence but failed to appreciate the question of application of section 302 I.P.C. in the facts and circumstances of the case. Therefore, for the foregoing reasons, the Criminal Appeal is allowed in part setting aside the conviction and sentence imposed under Section 302 IPC and convicting A-1 to A-3 under Section 235 (2) Cr.PC for the offence covered by 304-II IPC which is not a distinct offence and further examining the actual complicity of A1 to A3 with reference to the various circumstances of the case are sentenced to suffer Rigorous Imprisonment for seven (7) years out of which, the period of detention already undergone by them shall be given set off under Section 428 Cr.PC. __________________ Justice V. Eswaraiah ____________________________ Justice G. Krishna Mohan Reddy Date: 18-10-2011 Dsh. THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL APPEAL No.1774 OF 2007 (Judgement of the Division Bench delivered by Hon’ble Sri Justice G. Krishna Mohan Reddy) 18.10.2011 DSH