THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU CRL.A.No.137/2007 Dt.16-6-2010 Ponnarasu Bodaiah S/o Venkataswamy ..Appellant/A-1 V. The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., at Hyderabad. ..Respondent The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU CRL.A.No.137/2007 JUDGMENT (per the Honourable Sri Justice K.C.Bhanu) 1. A-1 in SC No.206/2005 on the file of VI Additional District & Sessions Judge, Fast Track Court, Markapur, filed the present appeal challenging his conviction for the offence under Section 302 IPC and sentence of imprisonment for life and fine of R.200/-, in default to suffer rigorous imprisonment for a period of two months. 2. The brief facts, which are necessary for disposal of the present appeal, may be stated as follows: P.W.1 is the brother-in-law, P.W.4 is the wife, P.W.5 and P.W.13 are the sons of one Itta Rosaiah (hereinafter referred to as ‘the deceased’). About 2 years back, A-1 purchased fertilizers worth Rs.50,000/- from the shop of P.W.6 and the deceased stood as surety for transaction. A-1 failed to discharge the said loan. In that connection, the deceased used to advise A-1 to clear off the debt. A-1 further obtained a loan of Rs.25,000/- from their caste society agreeing to repay the same with interest, but he did not execute any pronote to that effect in spite of repeated requests of the deceased. A-1 developed grudge against the deceased since the deceased was insisting him to clear off the debt and was waiting for an opportunity to wreck vengeance against him. While so, a day prior to the incident, while the daughter of A-2 and A-3 was collecting red gram stems from the field of the deceased, P.W.4, who is the wife of the deceased, chastised her. On that A-2 and A-3 picked up a quarrel and beat P.W.4 with hands and legs. On 10-9-2004 at 6 AM the deceased along with his son-P.W.5 and wife-P.W.4 went to the house of A-2 and A-3 and questioned them about their beating P.W.4. In that connection, a wordy altercation took place. In the meanwhile, A-1 came to the scene armed with Japan babul stick and beat the deceased on his head. The deceased fell down on the ground and lost his consciousness. A-1 again tried to beat on the head of the deceased, but P.W.1 averted the blow by snatching the stick from the hands of A-1. Immediately P.Ws.1 to 3 and others shifted the deceased to the Government Hospital, Podili. On the advice of Doctor, they shifted the deceased to Peoples Trauma and Emergency Hospital, Guntur. On receiving hospital intimation covered under Ex.P-19, P.W.16-Assistant Sub-Inspector of Police, Kothapet Police Station rushed to the hospital and recorded the statement of P.W.1 covered under Ex.P-1, and forwarded the same to Marripudi Police Station on point of jurisdiction. On receiving Ex.P-1, P.W.15-Assistant Sub- Inspector of Police, Marripudi Police Station registered the same as case in Cr.No.55/2004 for the offence under Section 324 r/w 34 IPC and issued FIR. Ex.P-17 is the FIR. He rushed to the hospital, examined P.W.1 and P.W.18 and recorded their statements. He visited the scene of offence and prepared an observation report covered under Ex.P-24. He seized M.O.1 stick from the scene of offence in the presence of P.Ws.11 and 12. He prepared rough sketch covered under Ex.P-18. On 10-9-2004, P.W.21 examined the deceased and conducted CT Scan. Ex.P-26 is the copy of case sheet. On 24-9-2004 P.W.17 on receiving death intimation covered under Ex.P-20 altered the section of law from Sec.324 r/s 34 IPC to Sec. 302 r/w 34 IPC and issued altered FIR covered under Ex.P-21. Subsequent investigation was taken over by P.W.20-Inspector of Police, Podili. P.W.20 visited the hospital and held inquest over the dead body of the deceased in the presence of P.W.8. Ex.P-6 is the inquest report. After conducting inquest, P.W.20 sent the dead body for postmortem examination. On 25-9-2004, P.W.19 conducted autopsy over the dead body of the deceased and opined that the cause of death was due to head injury. Ex.P-23 is the postmortem certificate. During the course of investigation, P.W.20 examined P.W.18, L.W.8-Itta Chinna Ramaiah, L.W.6-Itta Ramaiah, P.W.1, P.W.18 and recorded their statements. He visited the scene of offence. Ex.P-24 is the observation report. He prepared rough sketch of the scene of offence covered under Ex.P-25. After receiving relevant documents and on completion of investigation, P.W.20 filed the charge sheet. 3. The charges framed against the accused are as under: Firstly: That A-1 of you on or before about 10th day of September, 2004 at about 6 AM at Rajupalem village near the house of L.W.1-Ponnarusu Brahmaiah intentionally beat the deceased-Itta Rosaiah S/o Pedda Venakta Swamy, Rajupalem village on his head voluntarily with Japan babul stick while A-2 and A-3 of you caught hold of the deceased and you know that the injury caused to the deceased to be likely to cause death of the deceased and the deceased succumbed to injuries on 23-9-2004 at 9-50 PM in Peoples Trauma Hospital, Guntur while undergoing treatment and A-1 of you thereby committed an offence punishable under Sec. 302 IPC and within my cognizance Secondly: That A-2 and A-3 of you on the same day, at the same time and at the same place mentioned in charge No.1 had common intention to kill the deceased along with A-1 of you and in pursuance of your common intention you caught the deceased firmly and A-1 beat the deceased with Japan babul stick voluntarily on his head and caused intentionally fatal injury to the deceased, who succumbed to injury on 23-9-2004 at about 9-50 P.M. in Peoples Trauma Hospital, Guntur while undergoing treatment and A-2 and A-3 of you thereby committed an offence punishable under Section 302 r/w 34 IPC and within my cognizance. The charges framed were read over and explained to the accused in Telugu, to which they plead not guilty. 4. To substantiate the charges, the prosecution has examined P.Ws.1 to 21 and got marked Exs. P-1 to P-27 besides the case property M.O.1. 5. After closure of prosecution side evidence, the accused were examined under Sec. 313 Cr.P.C., and they denied the incriminating material appearing against them in the evidence of prosecution witnesses. On behalf of the defence, no evidence, either oral or documentary, was adduced. 6. The trial court accepting the evidence of P.W.1, 4 and 5 found A-1 guilty of the offence punishable under Section 302 IPC and accordingly convicted and sentenced him as aforementioned. Whereas A-2 and A-3 were not found guilty of the offence punishable under Sec.302 r/w 34 IPC. Challenging the conviction and sentence, A-1 preferred the present appeal. 7. Sri C. Padmanabha Reddy, learned Senior Counsel appearing for the appellant-A-1 contended that except the interested testimony of P.Ws.1, 4 and 5 there is no other evidence to show that A- 1 has caused head injury to the deceased with Japan Babul stick and P.Ws.1,4 and 5 are all interested witnesses; that there were number of circumstances which indicate that the incident had not taken place in the manner spoken to, by the prosecution witnesses; that the trial court having disbelieved the case of the prosecution in respect of A-2 and A- 3, ought to have extended the same benefit of doubt to the appellant-A- 1 also; that P.Ws.1, 4 and 5 are chance witnesses and their presence at the scene of offence is quite doubtful and therefore it is unsafe to base a conviction on the interested testimony of P.Ws.1,4 and 5. He therefore prays to set-aside the conviction and sentence imposed by the trial court. 8. On the other hand, the learned Public Prosecutor contended that when P.Ws.1,4 and 5 and the deceased went to question A-2 and A–3 with regard to the incident took place prior to the date of incident in question, at that time A-1 came with Japan babul tick and beat the deceased on the head, as a result the deceased fell down unconscious and he was taken to the hospital and that on receiving hospital intimation Guntur Police went to the hospital and recorded the statement of P.W.1; that there is no reason for P.Ws.1,4 and 5 to foist a false case against the accused since the A-1 is no other than the son of paternal uncle of P.W.4; that the trial court, upon proper appreciation of the evidence on record, rightly convicted and sentenced the appellant and there are no grounds to set-aside the conviction and sentence recorded by the trial court and hence he prays to dismiss the appeal. 9. Now the point that arises for consideration is: “Whether the conviction and sentence recorded by the trial court against the appellant/A-1 are sustainable and the prosecution proved its case beyond all reasonable doubt against him? 10. P.W.8 is one of the inquest mediators who was present when P.W.20 conducted inquest on the dead body of the deceased. The inquest mediators opined that the deceased died due to the injury on the head. P.W.19 is the Doctor who conducted autopsy over the dead body of the deceased and found the following injuries: 1. A sutured injury of 21 cms length with 21 sutures present over the left fronto parietal temporal area of the scalp. It starts from 2 cms above the outer side of eye brow of left side to end 3 cms above the left ear. On reflection of scalp defused contusion present all over dark red in colour with a bony gap of (surgical) 8 cms x 5 cms x bone deep present over the left temporal area (craniotomy wound) and a fissured fracture of 12 cms present over the left vertex extending onto right temporal area. Diffuse sub dural sub marnoid hemorrhage present all over the brain surface. 2. Contused abrasion of 3 cms x 2 cms present all over left side of forehead horizontally faced scar. 3. Contused abrasion of 2 cms x 1 cm present all over the middle of left eye brow vertically placed with scar. 4. 2 contused abrasions of 2 cms x 1 cm to 1 x 1 cm present over the left cheek area with a gap of 0.5 cms in between with scars. 5. Contusion abrasion of 1 x 1 cm present over the bridge of nose with scab. He opined that the deceased died as a result of head injury. He issued Ex.P-23-postmortem certificate. Though he admitted that when a person falls from a considerable height injury of that nature may be possible, his evidence is very clear that the deceased died due to head injury. Therefore, from the above evidence, death of homicidal nature is established beyond all reasonable doubt. 11. P.Ws.2,3,6,9,10,11 and 12 did not support the case of the prosecution. Except marking their statements recorded under Sec. 161(3) Cr.P.C., nothing has been elicited in their evidence so as to connect the accused with the crime. Therefore, their evidence is not much helpful to the case of the prosecution. The other evidence is the evidence of P.Ws.1, 4 and 5, who are said to be eye witnesses. Since they are closely related to the deceased, their evidence has to be scrutinized carefully and cautiously. Their presence at the scene of occurrence is found to be acceptable and convincing, there is no reason to disbelieve their evidence. If the witnesses had enmity against the accused to implicate falsely their evidence requires close scrutiny. 12. The incident is alleged to have taken place in front of the house of A-2 and A-3 on 10-9-2004 at about 6 AM. The deceased, P.Ws.1, 4 and 5 went to the house of A-2 and A-3 to question them as to why they beat P.W.4 on the previous day. When the deceased questioned A-2 and A-3, they picked up a quarrel and a scuffle had taken place among them. In the meanwhile, A-1 came to the scene of occurrence with a stout stick, called as Japan babul stick, and beat the deceased; as a result the deceased fell down on the ground. Immediately, he was shifted to Government Hospital, Podili in a tractor of P.W.7. Thereafter, on the advice of the Doctor at Podili, the deceased was shifted to Peoples Trauma Hospital, Guntur for better treatment. In that hospital an operation was conducted so as to remove the blood clots, but the deceased succumbed to the injuries on 23-9- 2004 at 9-50 PM. The evidence of P.W.4 is very clear that on the previous day of the incident at 5 PM while the daughter of A-2 and A-3 was collecting red-gram stems from the filed of P.W.4, P.W.4 chastised her. Thereupon A-2 and A-3 beat her (P.W.4) indiscriminately. Then she reported the above incident to her husband. As it was late in the night, P.W.4 and the deceased did not go to the house of A-2 and A-3. On the next day morning, the deceased, P.Ws.1, 4 and 5 went to the house of A-2 and A-3 and so it is at that time the incident had taken place. The incident of beating P.W.4 on the previous day has not been seriously disputed even by the accused. When P.W.4 was beaten by A-2 and A-3 there was every possibility for the deceased, who is her husband, to question them. For that reason, there was every scope for the deceased to go to the house of A-2 and A-3 followed by P.Ws.1, 4 and 5 and some others. 13. Furthermore, taking place of the incident in front of the house of A-2 an A-3 is not in dispute. P.W.15 visited the scene of occurrence and prepared an observation report covered under Ex.P-24. Immediately, he prepared Ex.P-18 rough sketch. Practically, the investigation done by P.W.15 is not seriously disputed. So, from the evidence of P.Ws.1, 4, 5 and 15, it is clear that the incident had taken place in front of the house of A-2 and A-3. Since appellant/A-1 is no other than the son of paternal uncle of P.W.4, she would not have implicated A-1 as the person who caused bodily injury to the deceased. 14. The prosecution also relied upon the evidence of P.Ws.1, 4 and 5 with regard to the motive for the present incident viz., prior to the incident A-1 had taken loan of Rs.25,000/- from the society fund, for which the deceased was the elder and A-1 had taken the amount for purchasing fertilizers. When the deceased was insisting A-1 to repay the amount, the A-1 told the deceased “he can do whatever he likes”. That aspect of the case is the immediate motive for the incident in question. Taking of loan by A-1 is from the caste society fund but not personally from the deceased. Taking of loan to purchase fertilizers had taken place more than two years prior to the incident. Therefore, the prosecution has not come forward with any specific motive for the appellant/A-1 to attack the deceased. Even in the absence or non proof of motive, the accused can be convicted provided the evidence of eye witnesses is found to be acceptable and unimpeachable Since P.Ws.1,4 and 5 are close relatives of the appellant-A-1, they would not have implicated him falsely. There is no motive for them to implicate the appellant/A-1 falsely in a case of this nature. When the deceased went to the house of A-2 and A-3, there was every scope or possibility for P.Ws.1,4 and 5 to follow him and there was a scope for them to witness the incident. Therefore, P.Ws.1,4 and 5 are natural witnesses present at the time of incident. In the absence of any grouse or enmity, it cannot be said that the appellant/A-1 was falsely implicated. For the said reason, the trial court rightly placed an implicit reliance on the evidence of P.Ws.1,4 and 5. So from their evidence, it is clear that the appellant is the assailant of the deceased. 15. Now, it is to be seen whether the appellant had intended to cause death of the deceased or knowledge that his act would likely to cause death. The attack on the deceased was not pre-planned. It appears to be in a sudden fight in the heat of passion upon a sudden quarrel, when the deceased went to the house of A-2 and A-3 to question as to why they beat P.W.4 indiscriminately, the appellant/A-1 beat the deceased with a stout stick on his head. The appellant has not taken the undue advantage of the situation in repeating the blows on the deceased. If the appellant/A-1 had any intention to cause the death of the deceased, he would have caused some more injuries on the deceased. If an act is committed without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender being taken undue advantage of the situation or acted in a cruel or unusual manner, then the case squarely falls under the exception-4 of Section 300 IPC. The deceased survived for more than 13 days after the head injury. There was a fracture, and also there were blood clots. The weapon of offence seized is a stout babul stick, which is a dangerous weapon. The head is a vital part of the body. Every man is presumed to know the consequence of his act. If a person beats on the head of another with a stout stick it may likely to cause death. Therefore, it is a case where the appellant/A-1 without any intention to kill the deceased, beat the deceased with stout stick with knowledge that it is likely to cause death upon sudden quarrel in a heat of passion. Therefore, the accused is liable to be convicted under Sec. 304 Part-II IPC. 16. For the aforesaid reasons, the conviction and sentence passed against the appellant/A-1 in the impugned judgment, for the offence under Section 302 IPC are set aside. The appellant/A-1 is found guilty of the offence punishable under Section 304 Part II IPC and sentenced to suffer rigorous imprisonment for a period of 5 (five) years and to pay a fine of Rs.200/-, in default to suffer simple imprisonment for one month. The period of detention during investigation, trial and after conviction shall be given set off under Sec. 428 Cr.P.C., 17. The criminal appeal is partly allowed to the extent indicated above. --------------------- A.GOPAL REDDY,J --------------- K.C.BHANU ,J DT.16-6-2010 Kmr