IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THIS THE 4th DAY OF OCTOBER, 2009 CRIMINAL APPEAL NO.51 of 2002 Between: Kalsetty Laxman Rao @ Laxman ….APPELLANT (S) and The State of Andhra Pradesh (through Police Station, Bowenpally) represented by its Public Prosecutor …RESPONDENT(S) HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.51 of 2002 JUDGMENT: This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short hereinafter referred to as ‘Cr.P.C.’), is directed against the judgment dated 07.01.2002 in S.C.No.188 of 2001 on the file of the Court of Special Judge for trial of offences under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act – cum- VI Additional Metropolitan Sessions Judge, Secunderabad, whereunder and whereby the sole accused was found guilty for the offence punishable under Section 304 part-II of the Indian Penal Code, 1860 (for short hereinafter referred to as ‘I.P.C.’), and was convicted and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.1,000/- in default to suffer simple imprisonment for one month. 2. The brief facts that are necessary for disposal of the present appeal may be stated as follows. Pandurangam (hereinafter referred to as ‘the deceased’) was a resident of Bowenpally, Secunderabad, and was having two children. He was running a laundry shop near Bowenpally Police Station. On 13.08.2000, at about 10.00 p.m., near the Water Pump of the Cantonment Board, New Bowenpally, Secunderabad, while P.W.1 (wife of the deceased) and the deceased were returning to their house after closing laundry shop, the accused came behind them and picked up a quarrel with the deceased for return of the money, for which P.W.1 and the deceased replied that they would return the amount within 3 or 4 days. Then the accused pushed the deceased and as a result, the deceased fell down on the road on his back and sustained severe head injury and became unconscious. Immediately P.W.1 went to the Police Station Bowenpally and orally reported the incident to the police. The police came to the scene of occurrence and shifted the deceased to the Gandhi Hospital, Secunderabad. By the time P.W.9 went to the Gandhi Hospital, the deceased succumbed to injuries. Thereafter, P.W.9 recorded the statement of P.W.1 as in Ex.P.1 and registered a case and informed about the registration of the case to P.W.10, Inspector of Police. P.W.10 proceeded to the scene of occurrence, prepared Ex.P.8 scene of occurrence panchanama in the presence of P.Ws.5 and 6 who are the panch witnesses and prepared Ex.P.9 rough sketch of the scene of occurrence. Thereafter, he went to the mortuary at Gandhi Hospital and conducted inquest over the dead body of the deceased under Ex.P.3 inquest report in the presence of P.W.4 and others. The dead body was later sent for postmortem examination. The Doctor who conducted autopsy over the dead body of the deceased opined that the deceased died as a result of the head injury. After completion of investigation, the police filed the charge sheet. 3. The charge levelled against the accused is as follows. “That you, on or about the 13th day of August, 2000 at about 22.00 hrs (10.00 p.m.) near the Water Pump of the Cantonment Board, New Bowenpally, Secunderabad, caused the death of the deceased K.Pandurangam, son of late K.Shivaiah, aged 60 yrs, r/o Kamsari Bazar, Bowenpally, Secunderabad, by pushing him forcibly as a result of which he fell down on the road on his back and sustained severe head injury and became unconscious, by demanding him to return the due amount of Rs.5,000/- to you, with the intention of causing such bodily injury as was likely to cause death and that you thereby committed an offence of culpable homicide not amounting to murder, punishable under Section 304 part II of the Indian Penal Code and within my cognizance.” When the above charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charge levelled against the accused, the prosecution examined P.Ws.1 to 11 and got marked Exs.P.1 to P.10 and M.Os.1 to 4. 5. After the prosecution evidence was closed, the accused was examined under Section 313 of Cr.P.C. with regard to the incriminating material appearing against him in the evidence of prosecution witnesses, for which he denied the same. No evidence, either oral or documentary has been adduced on behalf of the accused. 6. The trial Court, after appreciation of the evidence on record, especially placing reliance on the evidence of P.W.1 came to the conclusion that the accused committed culpable homicide not amounting to murder in a sudden fight and, accordingly, convicted and sentenced as above. Aggrieved thereby the accused preferred the present appeal. 7. Now the point for determination is whether the prosecution proved the guilt of appellant beyond all reasonable doubt for the offence punishable under Section 304 part II of I.P.C. 8. Learned counsel appearing for the appellant contends that there is no intention on the part of the appellant to commit any offence, that because the deceased had not paid the amount due to him, the appellant simply pushed the deceased and as a result of which the deceased fell down, that as the appellant demanded the deceased to return the money due to him, a false case is foisted against him, that since the appellant had no knowledge about the existence of any hard object or stone near the scene of occurrence and had no intention to commit any offence, he is not liable to be punished for any offence and hence, he prays to set aside the conviction and sentence recorded against the appellant. 9. On the other hand, the counsel representing the learned Public Prosecutor contends that the evidence of prosecution witnesses clearly shows that the appellant used criminal force on the deceased, that though not under Section 304 part II of I.P.C., the appellant is liable to be punished for the offence punishable under Section 352 I.P.C. as he intentionally pushed the deceased and thereby used criminal force, that, therefore, the appellant is liable to be punished at least under Section 352 I.P.C. 10. P.W.10 is the Inspector of Police who visited the scene of occurrence situated near Water Pump House of the Cantonment Board, Secunderabad, and observed the scene of offence under Ex.P.8. P.Ws.5 and 6 did not support the case of the prosecution with regard to the police observing the scene of occurrence. As seen from Ex.P.8 scene of occurrence report, no incriminating material has been seized. 11. P.W.4 is one of the inquest mediators who was present when P.W.10 conducted inquest on the dead body of the deceased at the mortuary of Gandhi Hospital. Ex.P.3 is the inquest report, which shows that on the back side of head of the deceased there was a bleeding injury. 12. P.W.8, the Doctor who conducted autopsy on the dead of the deceased and issued Ex.P.6 post mortem report, found the following anti-mortem injuries. “1. Contusion right eye (black eye). 2. Contusion right parieto-occipital region 15 x 10 cm. with periosteal hematoma of right parietal region 3. contusion left temporal region. 4. fissured fracture 12 cm long over the right parietal and occipital bone. 5. Extra and subdural haemorrhage present over right parietal region.” He opined that the deceased appears to have died due to head injury and the injury nos.2 to 5 are possible by a blunt object. Nothing has been elicited to discredit his testimony. Therefore, it is established beyond doubt that the deceased died as a result of the head injury sustained by him. 13. Now the question that arises for consideration is whether the act of the appellant pushing the deceased is likely to cause the death of the deceased. 14. P.W.1 and the deceased were returning to the house at about 10 p.m. after closing the laundry shop. When they reached the pump house in Cantonment Board area of Secunderabad, the appellant came there and asked the deceased to pay the amount due to him. When the deceased stated that he would pay the amount in two or three days, the appellant pushed him. At that time, the appellant is not armed with weapon. He has not taken undue advantage of the situation. It is not in dispute that the deceased was in a drunken state at that time. There is no evidence to show that the appellant pushed the deceased towards hard objects or big boulders. Therefore, there is absolutely no intention or knowledge on the part of the appellant that his act is likely to cause the death of the deceased. He simply pushed the deceased. That means he simply used criminal force. Because the deceased was in drunken state it resulted in his falling on the ground. Therefore, even if the evidence of P.W.1 is to be accepted as true and correct at this stage, no offence under Section 304 part II of I.P.C. is made out. On the other hand, the appellant can be convicted for the offence punishable under Section 352 I.P.C. which prescribes that whoever assaults or uses criminal force to any person other wise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. ‘Criminal Force’ is defined under Section 350 Cr.P.C. which reads as follows. “Whoever intentionally uses force to any person, without that person’s consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely in that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.” In this connection, the illustration (d) given under Section 350 I.P.C. squarely attracts the offence that is said to have been committed by the appellant in this case and the same reads as follows: “A intentionally pushes against Z in the street. Here A has by his own bodily power moved his own person so as to bring it into contact with Z. He has, therefore, intentionally used force to Z; and if he has done so without Z’s consent, intending or knowing it to be likely that he may thereby injure, frighten or annoy Z, he has used criminal force to Z.” Therefore, from the evidence, it is clear that the appellant has committed the offence punishable under Section 352 I.P.C. In view of the fact that Section 352 of I.P.C. is a minor offence than the offence punishable under Section 304 part II I.P.C., framing of charge may not be necessary at this stage. 15. Hence, the conviction and sentence recorded against the appellant dated 07.01.2002 in S.C.No.188 of 2001 on the file of the Court of Special Judge for trial of offences under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act –cum- VI Additional Metropolitan Sessions Judge, Secunderabad, are set aside. However, the appellant is found guilty of the offence punishable under Section 352 I.P.C. and is convicted accordingly. The appellant is sentenced to undergo simple imprisonment for three (3) months and to pay a fine of Rs.2,000/- (Rupees two thousand only). In default of payment of fine, the appellant shall undergo simple imprisonment for a period of one month. The period of detention already undergone by the appellant shall be given set off as provided under Section 428 Cr.P.C. 10. The Criminal Appeal is allowed to the extent indicated above. _______________ K.C.BHANU, J 4th November 2009 CVRK