IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE SECOND DAY OF DECEMBER TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.1217 of 2005 Between: Devolla Devender .. Petitioner AND The State of Andhra Pradesh, represented by the Public Prosecutor, High Court of Andhra Pradesh, Through the C.I. of Police, Nirmal, Adilabad District .. Respondent JUDGMENT: The accused in S.C.No.280 of 2004 on the file of the Court of II Additional Sessions Judge (Fast Track Court), Adilabad, aggrieved by his conviction and sentence for an offence punishable under Section 304 Part-II of the Indian Penal Code by the judgment dated 28-07-2005, preferred this appeal. The accused/appellant was prosecuted by the Circle Inspector of Police, Nirmal, in Cr.No.33 of 2004 of Nirmal Rural Police Station, alleging that on 18-07-2004 at about 9.30 P.M. a report was received from Padigela Ganganna alleging that at about 8.00P.M. on the same day when he was in his toddy shop, the accused and the deceased Menga Bhojanna had a quarrel and scuffle after the accused took three toddy bottles from the box brought by the deceased and did not pay for the same. The report alleged that the accused kicked the deceased Bhojanna with legs on which the deceased fell down and died on the way to Nirmal hospital. The investigating officer inspected the dead body at the hospital and got an inquest conducted. He also visited the scene of offence and conducted a Panchanama before mediators. The accused was arrested on 20-07-2004 and he confessed the offence. The Post Mortem disclosed the death of the deceased to be due to Neurogenic shock due to cerebral haemorrhage and extradural haemorrhage and hence, the accused was prosecuted for an offence punishable under Section 302 of the Indian Penal Code. After appearance of the accused before the Magistrate, copies of documents were furnished to him and the case was committed to the Court of Session. A charge under Section 302 of the Indian Penal Code was framed by the Court of Session and the accused pleaded not guilty. The prosecution examined PWs.1 to 15 and marked Exs.P.1 to P.10 during trial and the accused denied all the incriminating circumstances appearing in the evidence against him when he was examined under Section 313 of the Code of Criminal Procedure. He did not produce any defence evidence. The Court of Session rendered the impugned judgment referring to the oral and documentary evidence in detail and accepted the version of the prosecution about the incident proper. While noting that it was clearly brought out that the accused abused the deceased Bhojanna, picked up a quarrel with him, during which the accused kicked the deceased, the trial Court also referred to the absence of specification by PWs.1, 3 and 4 about the accused kicking the deceased on the testicles and the claim of PWs.5 and 6 about such kick being near and around the stomach. Though there were thus two inconsistent versions about the place on the person of the deceased where he was kicked, the trial Court noted that the deceased was immediately shifted to the hospital in an auto and though there were no external injuries on the person of the deceased, the trial Court was clear that after receiving the kick from the accused, the deceased Bhojanna cried with pain and later he died. On such facts and circumstances, the trial Court concluded that the accused did not have any motive or intention to cause the death of Bhojanna, but still the accused kicked Bhojanna either on the testicles or in the abdomen, which he must have known to be dangerous. Therefore, the action of the accused was considered to be with the knowledge that the injury he caused was likely to cause death. Consequently, the trial Court found the accused guilty of the offence under Section 304 Part-II of the Indian Penal Code and after examining him on the question of sentence and noting that the 20 year old accused with the liability to maintain his parents and with no others to support them has to be sentenced, the trial Court sentenced him to undergo Rigorous Imprisonment for two years and pay a fine of Rs.2000/- with a default sentence of three months, while giving set off for the period of remand. The accused questioned the said judgment on the ground that there were contradictions in the version of the witnesses before the police and the Court, which could not have been acted upon, more so, in the absence of any clear evidence as to on which part of the body of the deceased the accused kicked. The accused contended that the kick was never stated to be sufficient to cause the death of the deceased and the medical evidence was about the likelihood of cerebral haemorrhage being caused due to high blood pressure also. In the absence of any evidence about the condition of health of the deceased prior to his death, the benefit of doubt should have been given to the accused, and therefore, the accused desired the conviction and sentence to be reversed. Sri S. Chandrasekhar, learned counsel representing the appellant/accused and Sri K. Venkateswara Rao, learned counsel, representing the learned Public Prosecutor are heard. The point for consideration is whether the guilt of the accused for an offence punishable under Section 304 Part-II of the Indian Penal Code was established beyond reasonable doubt and if so, what would be the reasonable quantum of sentence on the facts and circumstances of the case? The acquittal of the accused for an offence punishable under Section 302 of the Indian Penal Code for which he was originally charged was not challenged by the prosecution and had become final. The case of the accused as seen from his examination before the Court of Session was one of total denial and he tried to contend that he was unaware as to who out of the persons present beat the deceased. These interested denials cannot be preferred in the absence of any reason or motive attributed to any of the witnesses cited or examined by the prosecution to implicate the accused falsely in any criminal case. Ex.P.1 report from PW.1 was prompt within one and half hours after the alleged incident and the deceased was immediately shifted to Nirmal Government Hospital when he fell down on being kicked by the accused and he was declared dead which made PW.1 immediately rush to the police station and report to the police. The evidence of the witnesses was broadly consistent about the incident and doubts are sought to be created only with reference to the place on the person of the deceased where the accused kicked. PW.1 claimed that the accused kicked Bhojanna with his legs on the testicles and PW.2 was at the cash counter when he witnessed the quarrel between the accused and the deceased and hence, if he did not specify the place on the person of the deceased where the accused kicked, the same cannot be considered very significant. PW.3 also stated about the accused kicking Bhojanna on his testicles and Bhojanna falling down then and there. PW.4 also stated the same and though PW.5 and PW.6 stated that the accused kicked Bhojanna with his legs near and around his stomach, it has to be noted that in the meelee, it would be physically not possible for all the persons present around to meticulously observe the place where the kick hit the deceased. The place of hit mentioned by PWs.5 and 6 is not physically too distant from the place of hit claimed by the other witnesses and mountains need not be made out of molehills. The father and brother of the deceased, PWs.7 and 8, were informed by others about the incident and PW.9 took photographs of the dead body at the hospital, PW.10 is an inquest mediator, while PW.11 is the mediator for Panchanama for the scene of offence. PW.13 is the person in whose auto the deceased was carried to Nirmal Hospital and PWs.14 and 15 are the investigating officers. Though PWs.14 and 15 might have contradicted the witnesses about stating to the police about the accused kicking the deceased on his testicles, any such contradictions are minor and any omissions in recording of statements by the police cannot affect the credibility of the witnesses, who had otherwise known the acts committed by the accused. It is true that PW.12, the medical officer, who conducted autopsy, did not find any external injuries and opined the death to be due to cerebral haemorrhage, which may be possible due to high blood pressure. However, the evidence of the witnesses clearly suggests the deceased aged about 21 years to be carrying on his avocation in perfect health by the time of incident and in the ordinary and natural course of human events, it may not be possible to take recourse to any conjecture that he would have died due to blood pressure. Possible causes of death may be infinite and the death of the deceased due to haemorrhage need not be delinked from the shock the deceased would have suffered due to the violent kick on the sensitive parts of his person. The evidence positively shows that there was no other cause for the death of the deceased except the kick administered by the accused on his person and the accused cannot claim any benefit of reasonable doubt in that regard. If such a culpable act can be presumed to be done with the knowledge that it is likely to cause death but without any intention to cause death or with the knowledge to cause such bodily injury as is likely to cause death, the same falls within the scope of Section 304 Part-II of the Indian Penal Code as rightly concluded by the trial Court. Though in the absence of such knowledge, it may be a case of simple hurt, from the very manner in which the incident occurred and the violent impact of the kick on the deceased, presumption of such knowledge cannot be considered unreasonable and the conviction of the accused for the said offence, therefore, cannot be interfered with. Coming to the question of sentence, the accused was stated to be aged 20 years by the time of offence and he was not alleged to be having any past criminal record. He was stated to be living by labour and he is claiming that he had to maintain his old parents, who had no other support, which was not contradicted by the prosecution. The consequence of the overt act of the accused may be death but as he had no motive or intention to cause such death and had been guilty of only indulging in such kicking as would amount to committing an overt act so dangerous as was likely to cause death, he can be considered for taking a lenient view. The accused had the stress and threat of the criminal proceedings since about five years with the added agony of conviction and sentence since four years though of course the sentence was suspended pending the appeal. The accused had paid the fine imposed by the trial Court and a balancing of the need for deterrent punishment, the hope for reformation at least due to suffering the criminal prosecution and the background of the accused may make imposition of a sentence of one and half years, reducing the sentence of imprisonment, meet the ends of justice. Accordingly, the conviction of the accused by the judgment dated 28-07-2005 in S.C.No.280 of 2004 on the file of the Court of II Additional Sessions Judge, (Fast Track Court), Adilabad for an offence punishable under Section 304 Part-II of the Indian Penal Code is confirmed and the sentence of fine also is confirmed, while the sentence of Rigorous Imprisonment for two years is modified by reducing the same to sentence of Rigorous Imprisonment for one and half years with the period of remand undergone already by the accused being set off from the sentence under Section 428 of the Code of Criminal Procedure. The accused shall forthwith surrender before the trial Court to undergo the balance of sentence and in default, the trial Court shall take steps for due execution of the sentence. The appeal is ordered accordingly. _____________________ G. BHAVANI PRASAD, J Date: 02-12-2009 Ksn