HONOURABLE SRI JUSTICE A. GOPAL REDDY AND THE HONOURBLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No. 479 OF 2007 DATED 25TH AUGUST, 2010. BETWEEN Karam Venkateswarlu Dora @ Venkanna Dora …..Appellant/accused and The State of Andhra Pradesh, Rep. By Public Prosecutor High Court of AP, Hyderabad. … Respondent/complainant HONOURABLE SRI JUSTICE A. GOPAL REDDY AND THE HONOURBLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No. 479 OF 2007: JUDGMENT: ( Per Hon’ble Sri Justice K.C. Bhanu) 1. This Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.) is directed against the judgment dated 28.02.2007 in S.C. No. 545 of 2006 on the ﬁle of the VIII Additional Sessions Judge, East Godavari District, at Rajahmundry, whereunder and whereby the appellant/sole accused was found guilty of the oﬀence punishable under Section 302 IPC and accordingly convicted and sentenced to undergo imprisonment for life and to pay ﬁne of Rs.500/- in default to undergo simple imprisonment for one month. 2. The prosecution case, as delineated by the witnesses examined on its behalf, may be stated as follows: 3. Karam Appanna Dora @ Satyanarayana Dora (herein after referred to as ‘the deceased’) is only son of P.Ws. 1 and 2. They live by cooly work. They are the residents of Jaggampalem village, Gangavaram Mandal of East Godavari District. P.Ws. 1 and 3 and accused are brothers. P.W.4 is the wife of P.W.3. The accused was in the habit of quarrelling with his wife frequently on petty matters like not properly cooking food and used to beat his wife frequently. As usual on 6.5.2006 at about 11.00 a.m. the accused was beating his wife on the pretext that she did not cook food properly. At that time, the deceased returned to the house after collecting ﬁre wood. As P.Ws.1 and 2 noticed the deceased that the accused was quarrelling with his wife, the deceased went there and asked the accused not to beat his wife and so saying separated them. Despite the same the accused did not stop beating his wife. So saying, the deceased placed his arm on the chest of the accused and gave a slap on the cheek of the accused, for which, the accused grew wild and brought a knife from his hut and attacked the deceased on the abdomen twice and on the right hand, resulting intestine came out and the deceased boy died instantaneously on the spot. The father of the deceased, P.W.1 lodged a complaint, Ex.P.1 in the police station, which is at a distance of 22 k.ms from their village. P.W.8 registered the same as a case in Crime No. 21 of 2006 for the oﬀence punishable under Section 302 IPC and intimated the same to the Inspector of Police and issued FIR, Ex.P.11 to all the concerned. P.W.9 Inspector of Police took up investigation and visited the scene of offence. He prepared observation report of the scene of occurance, rough sketch and seized blood stained earth, broken bangle pieces and control earth in the presence of mediators on the same day at about 4.00 pm. After conducting the inquest over the dead body of the deceased in the presence of the mediators, he sent the dead body to Post-mortem examination to Government Hospital, Rampachodavaram. P.W. 10, doctor who conducted autopsy over the dead body of the deceased opined that the deceased died due to lacerated injury on spleen and lacerated injury on the stomach and intestine causing severe internal haemorrage leading to shock and death. He gave Post Mortem Certiﬁcate, which was marked as Ex.P.14. P.W.9- Inspector of Police arrested the accused on 8.5.2006 and recorded his confession under Ex.P.9. He also seized M.O.1-knife, and material objects under the cover of Ex.P.10 mediators report and sent the same to Regional Forensic Science Laboratory, Vijayawada. After receipt of the report Ex.P.13 from the R.F.S.L, he filed the charge sheet. 4. The charge levelled against the accused is that on 06.05.2006 between 11.30 a.m. and 12 noon the accused committed murder of Karam Appanna Dora intentionally causing the death by stabbing him with curved knife in his abdomen as he questioned the accused when he was assaulting his wife and thereby committed an oﬀence punishable under Section 302 IPC. When the said charge was read over and explained to the accused, in Telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate the case of the prosecution, it examined 10 witnesses on its behalf as P.Ws.1 to 10 and got marked Exs.P.1 to P.14 besides the case property M.Os.1 to 7. 6. After closure of the prosecution’s evidence, when the accused was examined under Section 313 Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of prosecution, he denied the same and reported no evidence. 7. The trial Court, after considering the evidence adduced by the prosecution, both oral and documentary, found the accused guilty of the aforesaid charge and accordingly convicted and sentenced him as stated supra. Challenging the same, the present Criminal Appeal is ﬁled by the accused. 8. Now, the points that arise for consideration are whether the prosecution proved the guilt of the accused beyond reasonable doubt for the charge levelled against him and whether the judgment of the trial Court is correct and proper. 9. The learned Counsel for the appellant contended that the evidence of P.Ws.1 and 2 is highly interested and there is no independent evidence to speak about the incident proper; that having regard to the relationship between the witnesses and the deceased, there is every possibility of projecting P.Ws. 1 and 2 as eye witnesses; that there is absolutely no motive for the accused to commit the murder of the deceased; that the weapon like M.O.1 would not have caused the alleged injuries as noticed by P.W.10 and it has not been proved that M.O.1 contains the same blood group of the deceased; that P.Ws. 1 to 4 could not have witnessed the incident in view of the fact that they were allegedly present inside their respective houses at the relevant point of time, that the alleged seizure of the material objects pursuant to the confessional statement of the accused is doubtful and therefore prayed for setting aside the conviction and sentence imposed against the appellant/accused. 10. On the other hand, the learned Additional Public Prosecutor contended that the incident has taken place infront of the house of P.Ws. 3 and 4 and therefore they are the natural and proper witnesses to speak about the incident; that the evidence of P.Ws. 1 to 3 is clear to the eﬀect that the accused hacked the deceased with knife; that in view of the relationship of the accused with the deceased, there is no question of false implication of the accused and that they would not foist false case against the accused who is no other than the brother of P.Ws.1and 3, that the trial Court upon consideration of the evidence on record rightly convicted and sentenced the accused and there are no grounds to interfere with the same. 11. The incident alleged took place infront of the house of P.Ws. 3 and 4. P.W.9 the Inspector of Police has visited and drafted the scene of oﬀence under Ex.P.8 in the presence of P.W.7 and others. A perusal of Ex.P.8 would go to show that the police seized bangle pieces, blood stained earth and control earth under M.Os.5 to 7 infront of the house of P.W.3. P.W.9 drafted the rough sketch under Ex.P.12. From the recitals of Exs.P.8 and P.12 coupled with evidence of P.Ws.7 and 9, it is proved that the incident had taken place infront of the house of P.Ws.3 and 4. Furthermore, the bloodstain earth seized from the scene of oﬀence would reveal that it is the human blood as seen from Ex.P.13, a report issued by the Regional Forensic Science Laboratory. The contention that the prosecution deliberately shifted the scene of oﬀence so as to make P.Ws.1 to 4 as eye- witnesses in the absence of any other evidence is unsustainable in view of the aforesaid discussion. Furthermore, P.Ws.1 to 4 consistently deposed that after the deceased slapped the accused, he was going back to his house along with his mother P.W.2 and by the time, they left the house of the accused, the accused went inside his house and came out armed with M.O.1- knife, and shouted the deceased to stop and when the deceased stopped and turned around, the accused hacked him with MO.1-knife on the stomach, resulting the intestine came out. 12. P.W.9 conducted inquest over the dead body of the deceased in the presence of P.W.6 and others under Ex.P.7. The inquest mediators opined that the deceased died due to the injury on his stomach and the intestines. 13. P.W.10, doctor, conducted post- mortem on the dead body of the deceased and found two injuries, one of them is about 2” x 2” size incisized wound and 1” x1” on right side forearm of right hand and, second one is a stab injury size about 6” length and 7 ½” width extending from left side of the abdomen to center to the abdomen. He opined that the death of the deceased was due to lacerated injury on spleen and lacerated injuries on stomach and intestine causing severe internal haemorrage leading to shock and death. Ex.P.14 is the post mortem certiﬁcate issued by P.W.10. He also deposed that the aforementioned injuries can be caused with M.O.1 knife. The medical evidence proved beyond doubt that the death of the deceased was due to severe internal haemorrage leading to shock. Even the accused has not seriously denied or disputed the nature of death of the deceased. 14. The deceased is the son of P.Ws.1 and 2. P.W.1, accused and P.W.3 are the brothers. P.W.4 is the wife of P.W.3. They live by cooly work. As on the date of incident, on 6.5.2006, between 11.00 a.m. and 12.00 noon the deceased returned to the house after collecting ﬁrewood. At that time, the quarrel ensued between the accused and his wife as usual with regard to preparation of food. Since the deceased is the close relative of the accused, there is nothing unusual to question the accused as to why he was quarrelling with his aunt, i.e. wife of the accused. Despite the same, the accused did not stop beating his wife, Then the deceased placing his hand on the chest of the accused, slapped him. Therefore, the accused grew wild against the deceased, and uttered not to give advise and went inside his house, came out armed with knife and hacked the deceased while the deceased was returning to his house. In view of the fact that P.Ws. 1 to 3 and accused are closely related to each other, there is no other reason that they would implicate the accused falsely in a case of this nature. The incident took place during the broad day time and at that time there are no persons present at the scene. There is no evidence to show with regard to existing of enmity between the deceased and accused. P.Ws. 1 and 2 who are the parents of the deceased, after hearing the cries as ‘baboi’ ‘baboi’, they came out from the house and found the deceased fell on the ground which suggests that they were not eye witnesses to the incident. At that time they saw the accused running away with the weapon of oﬀence. That earlier version of P.Ws.1 and 2 would go to show that when they came out from their house after hearing the cries of the deceased as ‘baboi baboi’ the deceased was already fell on the ground, which clearly indicate that P.Ws.1 and 2 are not the eye witnesses to the incident. P.Ws.3 and 4 are the husband and wife, whose house is located infront of the scene of occurrence. Their version is to the effect that they witnessed the accused stopping the deceased and later while the deceased turn around to go to his house, the accused hacked the deceased with knife on stomach. There was no speciﬁc enmity between the accused and P.Ws.3 and 4. P.W.3 is no other than the younger brother of the accused and P.W.1. Therefore, there is no reason for him to falsely implicate the accused. Therefore, from the consistent evidence of P.Ws.3 and 4 it is clear that the accused is the assailant of the deceased. 15. P.Ws.3 and 4 are the natural witnesses to be present at the scene of occurrence. As seen from the rough sketch Ex.P.12, the deceased fell down infront of the house of P.W.3. The house of the accused is nearby the house of P.W.3 Therefore from the evidence of P.Ws.3 and 4, it is clear that the accused is the assailant of the deceased. Nothing was elicited in the cross examination of P.Ws.3 and 4 to discredit their testimony. Their testimony, thus being free from any material inﬁrmity carries an intrinsic ring of truth about it. 16. Now, it has to been seen whether the accused committed the oﬀence with an intention of causing death, or to cause such bodily injury as the oﬀender knows to cause death, or the intention of causing bodily injury and injuries inﬂicted is suﬃcient to cause death in the ordinary course of nature or that the oﬀender knows that in all probabilities the death must be caused, so as to punish him under Section 302 IPC. 17. Admittedly there is no grouse or enmity in between the accused and deceased. There were also no diﬀerences on previous occasions in between them. They were in cordial terms prior to the incident. There is consistent evidence of the prosecution witnesses that the accused was in the habit of quarrelling with his wife and beating her on petty disputes. In view of the fact that the deceased being the close relative of the accused, he asked the accused not to quarrel and beat his aunt, who is the wife of the accused. Despite the same, when the accused did not stop beating his wife, the deceased placed his hand on the chest of the accused and gave a slap. The said act might have provoked the accused and therefore he went inside the house and brought knife and hacked the deceased. The sudden provocation of the accused is due to the slapping by the deceased. There is no premeditation for the accused to commit the murder. Therefore it is culpable homicide not amounting to murder, as it is committed without premeditation, in a sudden ﬁght in the heat of passion upon a sudden quarrel and without the oﬀenders having taken undue advantage or acted in a cruel or unusual manner. Every grown up man was presumed to know the natural and probable consequences of his own act. The alleged weapon is a sharp edged and curved weapon, which can cause pierce injuries and when such weapon is used, there was a sever laceration on the spleen and stomach, due to which intestines of the deceased have been damaged. Due to the said hack by the accused, the weapon pierced into the abdomen to 6” in length and 7 ½” in width which resulted exposure of large intestine in pool of blood and it causes instantaneous death. Therefore, the act of accused is with an intention of causing death or causing such bodily injury as is likely to cause death. But, the act of the accused is without premeditation, in a sudden ﬁght in the heat of passion upon a sudden quarrel, which falls under exception (4) to Section 300 IPC, which is punishable under Section 304 Part-I IPC. 18. For the foregoing discussion, the conviction and sentence recorded against the appellant/sole accused for the oﬀence punishable under Section 302 IPC in S.C.No. 545 of 2006 by the learned VIII Additional Sessions Judge, East Godavari District, at Rajahmundry are set aside. However, as stated supra, we ﬁnd the appellant/sole accused guilty of the minor oﬀence under Exception (4) to Section 300 IPC, which is punishable under Section 304 Part-I IPC and accordingly convict and sentence the appellant/sole accused to undergo seven years imprisonment. The period of detention already undergone during the investigation, trial and after conviction shall be given set oﬀ under Section 428 Cr.P.C. The ﬁne amount and default sentence imposed by the trial Court shall stand as it is. 19. The Criminal Appeal is partly allowed to the extent indicated above. ----------------------------------------- JUSTICE A. GOPAL REDDY ---------------------------------- JUSTICE K.C. BHANU 25T H AUGUST, 2010. Msnr.