THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1780 of 2007 JUDGEMENT: (Per Hon’ble Sri Justice Raja Elango) Challenging the order of acquittal passed by IV Additional Sessions Judge, Tirupati in S.C.No.214 of 2005, dated 18.11.2005, the State through Public Prosecutor filed this appeal. The respondent/accused has not preferred any appeal challenging the conviction and sentence recorded against him for the offences under Sections 304 Part II and 404 I.P.C., by the said judgment dated 18.11.2005. 2. The brief facts that are necessary for disposal of this case are as follows: The accused is a resident of Puliman Kombai, Thavthapatti Village, Veeriveedu Post, Nalakotai Taluk, Dindigallu District, Tamilnadu. About 15 years prior to the date of occurrence, the accused came to Tirupati. He used to work in hotels and sleep in the Railway Platform of Tirupati. About six months prior to the date of occurrence, he started attending welding work relating to the Railway Station, Tirupati. About 5 years prior to the occurrence, the accused developed illicit intimacy with Latha @ Sujatha (hereinafter referred to as ‘the deceased’) and both of them started residing in a portion of the house bearing No. 19-8-35, Dasarimattam, Tirupati, which belongs to the mother of P.W.1, on rent, from 03.01.2005. While so, as the deceased went to her relatives house 10 days prior to the date of incident, the accused developed illicit intimacy with another woman. The deceased came to know about the same and abused him on 19.01.2005. On that the accused grew angry and decided to do away the life of the deceased. On the same day i.e., on 19.01.2005 at 5.30 P.M., the deceased went to Railway Station and asked the accused to come to the house. While proceeding to the house, the accused purchased two-quarter bottles of liquor and consumed the same near the wine shop. When he reached the house, the deceased picked up a quarrel with the accused and abused him in filthy language, due to that the accused went outside and returned at about 11.00 p.m. Since the deceased was continuously abusing him in filthy language, unable to bear the same, the accused took a towel, put the same on the nose, mouth and throat and pressed forcibly, as a result of which, the deceased died. Thereafter, the accused pasted cement paste on the face of the deceased in order to prevent others from identifying her face. The accused also kept lemons on her both palms and absconded from the scene. On 21.01.2005 at about 10.30 p.m., P.W.10, co-tenant of the accused and the deceased, lodged a complaint before P.W.13-the Sub Inspector of Police, East Police Station, Tirupati, who in turn registered a case in Crime No.24 of 2005 under Section 174 Cr.P.C and issued F.I.R to all concerned. Thereafter, P.W.13 took up investigation, visited the scene of offence, conducted inquest over the dead body of the deceased in the presence of mediators - P.W.9 and two others, examined P.Ws.1 to 4, 10 & 12 and recorded their statements and seized the material objects. After conducting the inquest, he sent the dead body of the deceased for post mortem examination. P.W.11-the doctor conducted autopsy over the dead body of the deceased and issued Ex.P.6, but no opinion was given regarding the cause of death of the deceased. The accused confessed before P.Ws.7 and 8 that he has committed the offence and on the written report given by P.W.7, P.W.13 arrested the accused on 28.02.2005 and based on the confession statement, he altered the Section Law from Section 174 Cr.P.C to Sections 302 and 404 I.P.C. P.W.14-the Inspector of Police took up further investigation, and after completion of investigation and receipt of all the documents, laid charge sheet on 28.06.2005. 3. On committal, the Sessions Judge framed charges against the accused for the offences under Sections 302 and 404 I.P.C. When the said charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P.1 to P.17, besides case properties M.Os.1 to 7. After the closure of prosecution side evidence, the accused was examined under Section 313 Cr.P.C so as to enable him to explain the incriminating circumstances appearing against him. The accused denied the allegations and pleaded not guilty. However, no oral or documentary evidence was adduced on behalf of the accused. 5. On appreciating the evidence adduced by the prosecution, the learned Sessions Judge, while acquitting the accused for the offence under Section 302 I.P.C., found him guilty of the offences under Sections 304 Part II and 404 I.P.C., and accordingly convicted and sentenced him to undergo simple imprisonment for four years for the offence under Section 304 Part II I.P.C and simple imprisonment for six months for the offence under Section 404 I.P.C. Challenging the acquittal, the State preferred this appeal. 6. Heard both sides and perused the entire material available on record. 7. It is the case of the prosecution that on the fateful day there was a quarrel between the accused and the deceased. P.Ws.1 to 5 categorically stated about the presence of the accused and the deceased at their portion and also the quarrel between them. It is also the case of the prosecution that due to the said quarrel, the accused took a towel, put the same on the nose, mouth and throat and pressed forcibly, due to which the deceased died. But, unfortunately, P.W-11- the doctor, who conducted postmortem examination over the dead body of the deceased, has not opined the with regard to the cause of death. Taking into consideration the circumstances, the learned Sessions Judge convicted and sentenced the accused for the offence under Section 304 Part II instead of Section 302 I.P.C. Therefore, we are of the view that the said conviction and sentence are in accordance with law. 8. In the circumstances, the appeal deserves to be dismissed and the same is accordingly dismissed. _________________ A.GOPAL REDDY, J Date 28.07.2011 _________________ RAJA ELANGO, J va